The American Bar Association, founded in 1878 by 75 lawyers, now boasts a membership of over 410,000 lawyers. It has substantially more power and influence than other trade associations. Since 1923, it has had responsibility for accrediting most law schools. As the ABA explains on its website, “The ABA Section of Legal Education and Admissions to the Bar serves, through its Council, as the nationally recognized accrediting body for American legal education, providing a fair law school accrediting system that promotes quality legal education.”

Almost every law student must attend and graduate from an ABA-accredited law school before he or she can take the bar exam. (California is the major exception, because it allows students to take the bar exam if they have graduated from an ABA-accredited law school or a law school that the State of California specifically accredited.)

The ABA also requires that all students to take a course in “Professional Responsibility” that must teach the students a specific set of rules: the ABA Model Rules of Professional Conduct. Students cannot become licensed lawyers unless they take and pass a special bar examination on these ABA Model Rules. All students, before they can practice law in California, must also pass this special bar examination based on rules that is not law in California. That’s right: students must be proficient in a body of law that does not govern them. (California is now considering adoption of a non-uniform version of the ABA Rules.)

The ABA lobbies state supreme courts to adopt the ABA Model Rules, and almost every state court has done so. The legislature is not involved because state courts themselves issue them as court rules. State courts drop the adjective “model” when they make the rules into law. Right now, 49 states, the District of Columbia, and many local federal courts have adopted the ABA’s Model Rules of Professional Conduct (originally drafted 1983), often with non-uniform changes. Still, the ABA requires the law schools to teach the ABA version of the Model Rules. The students then must pass the ethics portion of the Bar Exam, which tests the ABA Model Rules, not the states’ non-uniform version.

The ABA’s complete control of this system can raise antitrust concerns. The ABA should be aware of that because of its own unfortunate history. In 1995, the Department of Justice (DOJ) accused the ABA of violating the Sherman Antitrust Act, § 1, in the way that it accredited law schools. The ABA settled the case and entered into a consent decree later that year. The consent decree prohibited the ABA from “fixing faculty salaries and compensation, boycotting state-accredited law schools by restricting the ability of their students and graduates to enroll in ABA-approved schools, and boycotting for-profit law schools.”

Things do not always go as planned, and the DOJ later accused the ABA of violating the consent decree. In 2006, the ABA acknowledged that it violated the consent decree and paid a $185,000 fine.

The ABA may be a little like the French king, of whom Talleyrand may have said, Ils n’ont rien appris, ni rien oublié (They have learned nothing, and forgotten nothing). We often think of antitrust violations as involving one entity controlling the market. If that is the case, that is exactly what seems to be happening here.

The ABA requires law schools to study the ABA Model Rules (even if those Rules are not law).

Law students must pass the Multistate Professional Responsibility Examination (MPRE), which is based on the ABA Model Rules, even if those Rules are not law . When the ABA amends its Model Rules, the MPRE automatically follows the change, usually within one year even if no state adopts the ABA change.

even if those Rules are not law Law professors (or at least some of them) must prepare teaching materials on the ABA Model Rules.

This is the interesting part: The ABA is prohibiting many authors (but not all) from using the ABA Model Rules unless they first pay hefty royalties to the ABA.

Let me quote from the Introduction to one of the major Professional Responsibility course books, Ethical Problems In The Practice Of Law (Concise 3d ed., Wolters Kluwer, 2013),. The authors are two distinguished professors, Lisa G. Lerman, Professor of Law and Coordinator of Clinical Programs, The Catholic University of America, Columbus School of Law, and Philip G. Schrag, Delaney Family Professor of Public Interest Law, Director, Center for Applied Legal Studies, Georgetown University Law Center (footnotes omitted):

We asked the ABA for permission to reprint some of the Model Rules and some of the comments in this text. The ABA replied that it “cannot grant [the] request. It is the policy of the ABA and its Center for Professional Responsibility not to permit the reproduction of more than 25% of ·publications it is selling itself. Moreover, it is the policy of the ABA … not to permit reproduction of the Model Rules without the applicable Comments.” The ABA indicated that if we submitted a request to use fewer rules, it might allow us to do so if we also would (a) pay a substantial fee and (b) agree to “reprint all the Comments contained in each Rule.” [emphasis added.]

As Professors Lerman and Schrag point out, “Law is not so easily privatized.” For example, in Veeck v. S. Bldg. Code Cong. Int’l, Inc., the operator of a website sued a nonprofit organization that held copyrights in model building codes. It sought a declaration that it was not violating the Copyright Act by posting codes that municipalities had adopted that copied the model codes that the nonprofit had drafted. The Fifth Circuit, en banc, found no copyright violation. First, the law of municipalities was not copyrightable, so copying of codes did not constitute infringement, and second, building codes were “facts” within the meaning of the merger doctrine. The court said its “short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder’s exclusive prerogatives.”

Later, in Ocean Atl. Woodland Corp. v. DRH Cambridge Homes, Inc., the U.S. District Court for the Northern District of Illinois (where the ABA is headquartered), went further:

“Copyright law only protects expressions, not ideas.” However, there are situations in which a “given idea is inseparably tied to a particular expression.” If an idea is susceptible to only one form of expression, the merger doctrine applies and 17 U.S.C. §102(b) would exclude the expression from the Copyright Act. See, e.g., Veeck v. S. Bldg. Code Cong. Int’l. Giving copyright protection to the expression in those situations “would confer a monopoly over the idea itself, in contravention of the statutory command.” The allegedly infringing party bears the burden of proof on issues relating to merger, as the merger doctrine is an affirmative defense to infringement. (internal citations omitted)

Lerman and Schrag obviously could not accept the ABA restrictions, so their book quoted from language of the Model Rules from Delaware and other states that had adopted the exact language.

Our citation to the rules should be understood as follows. When we reproduce particular rules, we are quoting the Delaware Lawyers’ Rules of Professional Conduct, not the Model Rules. However, the rules and the comments that we quote from Delaware are identical in numbering and wording to the ABA Model Rules and comments. So, for example, where we provide the text of “Rule 1.2” without further elaboration of the citation, we are giving you Delaware Rule 1.2, which happens to be identical to the ABA’s Model Rule 1.2.

In a few cases, if Delaware did not adopt the ABA Model Rule verbatim, the authors specify the rule from another state that uses text identical to the corresponding Model Rule.

The alternative is to pay the ABA a “substantial fee.” What the ABA did not tell the authors—and what I recently learned—is that the ABA’s claim that it charges authors a royalty fee to protect its interest in its own publications is (let me think of the most polite word here) a fabrication. Or, if I follow my father’s advice and never use a $2 word when a 25-cent word will do, the ABA told a lie.

The ABA does charge some authors a substantial fee to reprint the ABA Model Rules. The ABA charges other authors a low fee, and it charges at least one author absolutely nothing—zero, nada, nothing, scratch.

The ABA charges different authors varying (or no) fees depending (apparently) on how well liked the authors are by the ABA. To be more precise, the “ABA” in this context is not the House of Delegates (the supreme body of the ABA) but ABA staff, rewarding their favorites. The House of Delegates never approved this favoritism by the ABA staff. Perhaps the ABA might want to review its consent decree. On the other hand, the ABA may prefer the present system, because, as Professor Michael Ariens explains, is, “rules and testing on rules sell, not only metaphorically, but economically.”