The Public’s Right To Know

At My Shingle. Carolyn Elefant writes about the “persecution” of Carl Malamud for the making law available to the public to see.

Looks like ABA Legal Rebel,  Carl Malamud, leader of the “free law movement” is at it again. This time, reports the Washington Post, Malamud has been busy posting building codes that govern at his website, Public.Resource.org. Trouble is, the building codes — enacted by state and local law — incorporate industry-developed standards which are protected by copyright law. Some of the industry groups that develop these standard have now filed this  Complaint against Malamud alleging copyright violation.

While calling a complaint for copyright violation “persecution” might be a bit hyperbolic, Malamud isn’t a lawyer and can’t slough it off as easily as we might, so having an industry group out for blood, Malamud’s blood, is probably a pretty lousy feeling for a guy whose crime is putting principle before profits. Their profits, his principle.

But this is a great opportunity to drive home a critical point: that the content of our various branches of government, be it statutes, judicial opinions or budgets, belong to the public. It exists on our dime and at our sufferance. It’s ours, for better or worse.

Way back when, we have to pay dearly for the privilege of reading a law or decision. We paid for the paper, for the Indonesian child labor that set the type for the printing presses, for the leather-like covers and gold-ish print on the spine. There was no way to get the content without paying for the things it came on. That’s no longer the case, and it shouldn’t be.

The “free law movement” is, without question, an entitlement of citizenship. Not that the next step, where access to free law somehow enables citizens to use it in a way that helps them. It’s like any too, only as good as the hand that uses it. A saw can make a magnificent cabinet or cut off a finger.

Indeed, the free law movement has empowered some terribly misguided folks, from the sovereign citizens to those angry guys who insist that John Bad Elk allows them to shoot cops. The unduly Utopian view that access to tools turns everyone into a master carpenter is dangerous, but then, that doesn’t mean that the tools should be locked away either.

Carolyn takes Malamud’s stance in a different direction, arguing that it’s time for lawyers to demand that other tools, ABA and state bar ethics opinions, be freed from their paywall. Unlike the building codes, based on alleged proprietary information converted into public law by enactment, that Malamud is being sued for revealing, Carolyn speaks to the output of private organizations.

Many people don’t realize that the ABA isn’t some official organization regulating lawyers, but a club, a membership organization that lawyers may choose to join or not. It’s quite understandable, given the ABA’s pretentiousness, doing everything in its power to appear to be more than it is.

Carolyn’s concern relates to the ABA’s ethics opinions, which she notes “are frequently cited in court cases – and the ABA itself has urged state bars to adopt.” But these are merely advisory, a group of people who put on cool “ethics expert” hats, come up with their own opinions, without any authority behind them. These opinion hold no precedential value, are binding on no one and reflect the views of a few members of the club. To the extent they are sufficiently persuasive to make someone with actual authority take notice, great, but then we still have access to the determination of the real authority.

On the other hand, the ABA isn’t quite as goofy as I make it sound, since it has actual authority when it comes to accrediting law schools and, thus, determining which law school grads are entitled to sit for the bar and, if they pass, get the chance to practice law. This is a governmental function of sorts, and that it’s been placed in the hands of a private club, responsible to no one but its dues-paying members, is frankly pretty disturbing. If a group with a decent sense of humor ever got hold of the reins, they could require all law school deans to wear bunny ears at graduation as a condition of accreditation. Yes, a lot of us might enjoy that, but that’s not the point.

While the argument that private entities are under no duty to conduct themselves as if they were governmental, the ABA has deliberately chosen to behave as a quasi-governmental entity. It relishes its important role in accrediting law schools, despite the monumentally lousy job its done of it. It promotes, as Carolyn says, its ethics opinions as if courts and disciplinary authorities should adopt them as a super-jurisdictional determination, as worthy of reliance as any state court panel. It wants to be official in a governmental sort of way.

Fine. But then, behave in accordance with the credit you seek. The ABA wants to be seen as having legitimate power? Then make your output publicly available. The old days of the duopoly, West and Lexis, owning access to the law have been put to rest by the internet, and yet the ABA hides behind its paywall despite its pretentiousness.

But then, we know why the ABA does this. The handful of lawyers who aren’t satisfied with the prominence of just being fine lawyers, but need the validation that comes with important positions and cool titles (is there an ABA Grand Poobah?) in the club hierarchy realize that it will all be lost if enough other lawyers don’t pony up the dues to keep the club alive.

And frankly, this bar association, like so many others, costs way more than it’s worth to lawyers, who get essentially nothing out of membership other than a nice certificate for their ego wall and the warm feeling that comes with being a member of a club that desperately wants you. So they use every weapon available to keep cash flowing and members joining. The more valuable their internal content is to lawyers, the more likely lawyers are to pay up every year to maintain access, despite the inverse relationship that a principled stance would mandate.

Will Carolyn be the Carl Malamud of ABA ethics opinions?  While she calls for someone to stand up, she doesn’t appear interested enough to do what she asks of others. I surely won’t do it, because I don’t think the ABA’s ethics opinions are worth much in the first place. But that doesn’t mean it shouldn’t be done.

Right now, the American Bar Association is in the midst of its annual meeting, carefully rearranging the deck chairs on the Titanic of the law. If it wants to be what it pretends to be, that very important organization worthy of being taken seriously, then it needs to decide whether it’s about principles or using cheap tricks to glom dues from lawyers. This should be an easy decision.

7 comments on “The Public’s Right To Know

  1. the other rob

    There’s a typo in your link to Malamud’s website. It should have a period between “public” and “resource”.

    I do enjoy reading your blog and hope that pointing out this minor matter isn’t unwelcome.

    1. SHG Post author

      First, not only are corrections of typos welcome, but appreciated. Second, the missing period was in a quote, and as a general rule, I don’t correct quotes (since they then wouldn’t be quotes anymore), but in this instance, I would have had I noticed the error. So thanks for letting me know.

  2. Wheeze The People™

    Based on how the system usually works, the public’s right to know or see is only that Wheeze the People should know they will be treated by the government no better and no worse than the common mushroom or toadstool, — the usual fungal suspects, — and to see that they are only entitled to: — A) be left completely in the dark; and 2) be fed a continuous and exclusive diet of processed bullshit . . . Great for fungus, less than great for a functioning society . . .

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