Normative Ethics and the Changing Face of Legal Technology

*First published by Shea Coulson in The Advocate, Vol. 75 Part 5, September, 2017

Lawyers traditionally served an important role as conduits and

mediators of knowledge. When the great majority of the population

could neither read nor write, lawyers authored written

deeds that transformed the very social-political basis of power:

land. The written mercantile contract enabled an entire system of commerce

that was previously impossible.

Today, despite much ink being spilled over access to justice, the structure

of the entire legal profession is premised on gatekeeping, not access.

Lawyers’ high fees, the partnership model, the leveraging of young lawyers,

face-to-face service delivery, obtuse procedural rules and legal jargon all contribute

to making access to justice by members of the public difficult.

However, the function of lawyers as gatekeepers is coming to an end.

Why? Technology. But while technology holds the potential for improving

public access to justice, it also carries risks. Lawyers must confront this situation

and the ethical and professional challenges that the future holds.

THE FUTURE OF LEGAL SERVICES: A ROUGH SKETCH

The legal profession in Canada, and in B.C. in particular, is behind the

times. Some lawyers still use fax machines. The courts lag massively behind

private companies in electronic systems, data collection and logistics.

Lawyers think conducting electronic discoveries is novel progress. Our outdated

regulatory environment and slow-to-adapt market norms have

blinded most lawyers to changes that are happening elsewhere, including

the following:

• The liberalization of the legal market to permit service delivery

by non-legal professionals. The Co-operative Bank in England

has started offering legal services at its bank branches. Even telecoms

are in the game, with BT offering everyday legal services.1

These services have been enabled by routinization supported by

technology. Certain segments of the market prefer to obtain legal

services from well-known brands. Solo lawyers will be replaced by

this trend.

• The creation of networks of freelance lawyers offering services

through online portals. Axiom has been offering this service

since 2000.2 This enables broadly accessible services at fixed fees

that are lower than those offered by traditional firms.

• The breaking down of legal services into discrete tasks that can

be routinized by technology. Algorithms and artificial intelligence

(“AI”) now exist for document review, legal research, due

diligence and routine contract drafting at major international

firms such as Allen & Overy and Herbert Smith Freehills.3 Dentons

has invested in Watson legal research AI called ROSS, among

other major AI investments.4 McCarthy Tétrault has announced an

acquisition of an outside firm, Wortzmans, specializing in legal

research that will operate as an independent business within the

firm, finding increased cost efficiencies through technology and

selling services to other firms.5

• The creation of document assembly systems designed to

replace lawyers by offering custom contracts through easy-touse,

interactive interfaces that consult users for preferences and

needs. Examples include Contract Express,6 Exari7 and Shake.8

• The creation of online commercial portals for jargon-free legal

service delivery. Rocket Lawyer9 and LegalZoom10 have been

expanding for years in the United States. Firms like Allen & Overy

have even more sophisticated online legal tools that can address

complex, multijurisdictional problems.11 These services are starting

to outperform human specialists.

• The development of intelligent search systems that can now

outperform junior lawyers and paralegals in the area of litigation.

See, for example, Neota Logic.12

• The advent of online dispute resolution. eBay uses an online dispute

resolution platform that has resolved 60 million disputes per

year without the need for lawyers.13 Courts are increasingly going

virtual (especially in the more progressive U.K.). B.C. has already

introduced the online Civil Resolution Tribunal.14

• The growth of advanced AI and machine learning. The technologies

described above already exist. The future also promises

massive advances in AI, predicted by Google’s AI breakthrough in

November 2016 that revamped the entirety of Google Translate

into a machine-learning algorithm. In the span of only a few

months this algorithm has already improved accuracy more than

the previous ten years of hard-coding language rules developed by

a much larger team of human coders.15 These breakthroughs will

reach the professional legal services market and AI will be able to

interact directly with users online and provide increasingly

sophisticated answers to legal problems. This will often occur

through non-traditional means. For example, AI already exists in

the U.S. that can outperform all top patent lawyers in predicting

the outcome of patent suits.16 With such powerful predictive

mechanisms, companies can settle disputes without resorting to

legal services.

With technologies like those just described, most educated people can

solve their own legal problems without having to seek the assistance of a

legal professional. Most legal tasks will be routinized and performed by

computers. This has the potential to enable an exponential enhancement of

access to justice, particularly in an age of government austerity—so much

so that the Lord Chief Justice of England and Wales initiated a call for radical

reform of the justice system in 2014, including progressive implementation

of the most advanced information technology.17

These radical changes will greatly reduce the need for lawyers to

perform most legal tasks as those tasks are currently defined. This will

likely reduce the number of lawyers needed generally. If one lawyer

working alongside AI and data specialists can perform the work of four or

five lawyers in the current system, such a reduction in need seems

inevitable.

To many, the reduction of lawyers and legal fees is welcome. And it

should be. However, there remains a deep, fundamental risk in this brave

new world. As technology platforms evolve to deliver professional services

directly to consumers, the ability to abuse the power of these technologies

will increase. Problems include those arising from the collection and potential

misuse of data concerning the nature of legal problems and the areas of

legal resistance to corporate and political power, the delivery of outcomes

based on individual circumstances and objectives without regard for larger

social impacts, and the realities of technical and resource limitations to regulatory

supervision and enforcement.

If the virtual portals to legal services end up being controlled by a small

number of powerful companies, these risks amplify. For instance, one Silicon

Valley company working alongside a handful of leading professionals

could design an AI-driven document drafting system that could replace

most solicitors but that is proprietary, owned by a single corporate entity.

States are already designing online dispute resolution mechanisms that

sidestep the courts and exclude legal professionals (e.g., B.C.’s Civil Resolution

Tribunal).

These pressures require the legal profession to re-evaluate existing codes

of legal ethics. These prescriptive codes, with their limited scope and protections,

will be insufficient in the radical future our profession faces.

There is an acute need for robust discussion of the normative ethical basis

of the law and the role of the legal professional in both safeguarding those

norms and enabling public debate about changes to those norms. Thus far

we have almost entirely failed to take up this fundamental challenge. The

time to do so is now.

CURRENT LEGAL ETHICS: THE PRESCRIPTIVE CODE

Modern codes of ethics encompass the principles of what has been referred

to as the “grand bargain” between the professionalization of law and sociopolitical

sanction of a professional monopoly.18 The normative basis for this

bargain is that lawyers put the interests of their clients and the public ahead

of their own. Pecuniary reward is thus theoretically secondary to the

lawyer’s fiduciary and public duties. In return, society grants exclusivity to

a small group of licensed professionals, enabling vast rewards of both social

status and income.

Today, the original normative basis for legal ethics of the 19th and early

20th century has become buried in a code that is treated more as a set of

prescriptive rules than a group of normative organizing principles. When

such a code is coupled with the conversion of the profession of law into the

market of law, it is not surprising that normative questions and duties have

virtually vanished from a lawyer’s day-to-day thinking. At the management

level of large firms, legal ethics has been mostly reduced to minimizing

conflicts to maximize profit.

A closer look at the Law Society of B.C.’s Code of Professional Conduct19

reveals mostly prescriptive rules, such as the following:

• Rule 2.1-1(a): A lawyer owes a duty to the state, to maintain its

integrity and its law. A lawyer should not aid, counsel or assist any

person to act in any way contrary to the law.

• Rule 2.1-2(c): A lawyer should not attempt to deceive a court or tribunal

by offering false evidence or by misstating facts or law and

should not, either in argument to the judge or in address to the

jury, assert a personal belief in an accused’s guilt or innocence, in

the justice or merits of the client’s cause or in the evidence tendered

before the court.

• Rule 2.1-3(a): A lawyer should obtain sufficient knowledge of the

relevant facts and give adequate consideration to the applicable

law before advising a client, and give an open and undisguised

opinion of the merits and probable results of the client’s cause.

• Rule 2.1-3(b): A lawyer should disclose to the client all the circumstances

of the lawyer’s relations to the parties and interest in or

connection with the controversy, if any, that might influence

whether the client selects or continues to retain the lawyer. A

lawyer must not act where there is a conflict of interests between

the lawyer and a client or between clients.

• Rule 2.1-5(d): No client is entitled to receive, nor should any

lawyer render any service or advice involving disloyalty to the

state or disrespect for judicial office, or the corruption of any persons

exercising a public or private trust, or deception or betrayal of

the public.

The above derive from the “canons” section of the Code, which is the

broadest section. The Code only gets more specific when dealing with topics

such as conflicts, trusts, marketing, etc.

While important, prescriptive rules have significant limits. They do not

require lawyers to reason through what values should be embodied in and

protected by the law and the delivery of legal services. The rules in prescriptive

codes, compared to rules requiring the individual to describe and

justify normative ethical tenets, are much further down the chain of moral

thinking.

THE CASE FOR A NORMATIVE CODE: THE MORAL LIMITS OF MARKETS AND

MORAL DECAY THROUGH EXTERNALITIES

Few would deny that the legal profession is inching closer and closer to operating

as a typical market for services. The trend toward consolidation exemplifies

this phenomenon. As technological solutions gain traction, this trend will

amplify. This is not all bad. Truly broad access to the legal system requires the

commodification of legal services and market mechanisms. However, as

Michael Sandel argues in his book What Money Can’t Buy: The Moral Limits of

Markets, markets have moral limits.20 In my view these limits can be classified

into two main categories: inequality of outcomes and externalities.

Inequality of Outcomes

Put simply, when resources and power are distributed unevenly, markets

produce outcomes characterized by inequality. This inequality represents a

profound problem today in an environment where legal services are affordable

only for the wealthy. Technology will assist in reducing this inequality

massively at first. But eventually new problems will arise. For example, a

concentration of legal knowledge in the hands of a small number of companies

will isolate the majority of society from a place of deep understanding

and knowledge of the law. There is a risk that net social knowledge of law

will trend toward zero. This enhances the ability of those with knowledge

to manipulate outcomes, either intentionally or unintentionally (e.g., algorithms

are built with guiding parameters, and those parameters can skew

outcomes). Distortion could result from simply not thinking through all of

the outcomes sufficiently or from manipulation by the unscrupulous.

Externalities

Markets operate on the logic of ordinals and cardinals. All goods and services

must be reduced to a measurable standard and then compared on a

fixed scale. Inevitably, markets will nonetheless attempt to value goods and

services that cannot readily be valued in this manner. The gap between the

true value of the good or service and the market’s imperfect valuation may

be lost as an externality.

Some of the functions performed by lawyers cannot be or will not be

incorporated into a market model of legal services. In particular, the political

and social aspects of a lawyer’s role in defending individual rights

against the government and against abuses of power are unlikely to be monetized

in an appropriately distributive manner. When combined with

the inequality problem created by markets, the lack of access to this sociopolitical

function of the lawyer is exacerbated and the aggregate total of

points of resistance against abuses of power is reduced. This could result in

the degradation of democratic institutions and the rule of law.

In other words, the traditional socio-political protections of the legal system

could easily be bypassed by a market model of legal services, cutting

lawyers and judges out of the picture. This threat demands debate about

and the creation of guiding normative ethical principles that govern the

delivery of legal services. In the interest of fostering such a debate, I will

highlight below several challenges facing the profession in formulating a set

of normative ethical principles.

FIRST CHALLENGE: PLURALISM

Creating and agreeing on a set of normative ethical principles to guide the

delivery of legal services to the public has significant challenges. Drafting

an actual code of normative ethics will prove even more complex. Put simply,

it is hard to get a diffuse and diverse group of individuals to agree.

Pluralism is the greatest challenge to normative legal ethics. If we seek

to construct guiding principles, how do we confront incompatible, competing

values? Can we construct a series of meta-values that are sufficiently

cohesive to allow for the multiculturalism and diversity our Constitution

protects? Or do we have to decide between competing values?

Ronald Dworkin offers one approach in his magnum opus Justice for

Hedgehogs.21 For Dworkin ethical life consists of three central principles: (1)

moral thought is independent, (2) moral values are unified and (3) the character

of moral values is interpretive. Dworkin’s analysis is complex and has

considerable nuance. For the sake of this article, the principles boil down to

the assertion that moral convictions are true or false and we determine

their truth or falsity through reasoning that interprets and analyzes moral

questions by engaging with values as opposed to empirical, scientific or

metaphysical inquiry. This means we resolve the disputes that arise in pluralistic

societies by identifying the values that underlie moral questions and

then applying moral reasoning to determine the ground of particular values

and their implications. We then reach answers to moral questions through

this reasoning process. For the legal professional, this approach requires

robust debate and scrupulous reasoning to foster, on average and in aggregate,

maximal justice, insofar as justice has actual normative content that

must be decided by choosing more legitimate and defensible values over

others.

In contrast, Amartya Sen suggests that justice in pluralistic societies

requires a combination of utilitarianism and deontology. For Sen the guiding

normative principle is to maximize the ability of people to access and

pursue things they have reason to value.22 The pursuit is itself as valuable

as the outcome for that individual. Law must balance pursuit with result.

This is often referred to as the “capabilities” approach—justice requires

expanding citizens’ capabilities. Under this model legal professionals

engage mostly in protecting meta-norms that safeguard processes and minimize

destruction or diminution of an individual’s access to the things he or

she has reason to value.

These are but examples of potential approaches. The best approach

remains to be determined, but the challenge is inescapable.

SECOND CHALLENGE: DUTY OF LOYALTY TO THE CLIENT

How can a commitment to normative principles be squared with a lawyer’s

fiduciary duty to the client? The classic conflict is between, on the one

hand, the lawyer’s duty to the public and the court and, on the other hand,

the lawyer’s duty to the client. A lawyer cannot advise a client to be

unscrupulous and cannot so act in order to benefit the client. However, the

challenge of normative ethics is much more complex and our current codes

provide no tools with which to work through the challenge.

What if, for instance, a professional’s duty to the public included a commitment

to equal access to the legal system, but a client’s best outcome

could be achieved most effectively by putting unequal cost pressure on the

opposing party? That is a fairly typical reality in the modern legal system

that we currently avoid discussing in any real depth as our ethical code contains

insufficient basis to require such a discussion. In the future, we cannot

avoid these questions, and they pose major challenges to building a normative

code.

THIRD CHALLENGE: FREEDOM OF EXPRESSION

Would embracing normative legal ethics constitute a form of thought policing?

As the controversy surrounding Trinity Western University’s proposed

law faculty exemplifies, lawyers do not always agree on major normative

questions. In fact, it is one of the current functions of the legal system to

debate and decide those questions. Would a normative code of ethics

impinge on freedom of thought and expression?

It may be easier to answer this question in a country like Canada as compared

to the United States. Our Constitution permits the balancing of freedom

of thought and expression against other public interests. Still, in

moving toward a normative code I anticipate massive resistance from professionals

who are used to there being significant zones of autonomy. However,

if we do not engage with these questions now, in a decade we may

have lost the opportunity to do so entirely. In effect, the ethical issues will

be decided by the structure of the technological solutions rather than

by proactive engagement by the profession in an open discussion with the

public.

THE ETCHINGS OF A NORMATIVE CODE

In the context of the professions, we need to proceed beyond generalities

to particular debate over the realistic limits, on moral grounds, of practical

expertise being made available to lay people without the possibility of

intervention or supervision by experts.23

Our future relevance as lawyers will depend on our willingness to take

up the challenge articulated above. We need to re-engage with the deep

socio-political ethical questions that lie at the heart of law. We cannot sit

back as technical experts for an ever-narrowing cadre of super-wealthy

clients. If we do sit back, we will abdicate our social, moral and political

legitimacy as a professional class.

The range of topics that require debate is extensive. I focus here only on

two values: transparency and access.

Transparency

The great legal philosophy debates of the 20th century focused on the distinction

between law as authority and law as legitimacy. Positivists like

H.L.A. Hart saw authority as the philosophical content of law.24 Law derived

its power through its promulgation by authority and its status as authoritative

rule making. This aligns well with many conservative political views—

it is the authority that makes law, and law must be obeyed because it is

authority.25 Positivism has a strange relationship with pluralism. In a society

of competing and sometimes incompatible values, decisions as to how

issues involving competing values are to be resolved are made by those

legally authorized to apply the law, the validity of their power being derived

entirely from positive authority rather than moral superiority.

In contrast is the Dworkinian school of thought that sees law as legitimacy.

26 This approach grounds often-used liberal phrases such as the

“moral arc of the universe”.27 Law has validity because it is a legitimate

expression of moral reasoning. While individual legal decisions may be

closer to or farther from what reasoned morality requires, the trend line in

law is toward closer adherence to reasoned morality. Law as such is thus

legitimacy rather than pure authority. Decisions in hard cases are not made

on the basis of pure authority but because moral reasoning demands a particular

outcome.

When legal services are delivered by technological portals enabled by AI

and legal solutions algorithms are proprietary, which version of law will

prevail? It is easy enough to embed prescriptive codes of ethics into the

parameters of such algorithms, but what of normative principles of transparency?

When legal thinking is increasingly hidden within inaccessible

algorithms that drive seamless service delivery, is it sufficient to rely on the

service provider to disclose the mechanisms by which decisions are being

made? Or is it preferable to engage a human legal professional bound by

rules and standards derived from normative ethical principles to work

alongside the technology? For example, could lawyers become independent

professionals who act as vetting mechanisms for technological service

delivery to ensure the transparency and legitimacy of the system? If not, it

may be that the positivist view wins out and law becomes increasingly

authoritative. Is this what we want?

Access

Increasing routinization and use of technology to reduce the costs of and

increase the access to legal services will reshape the debate about access to

justice. Is it certain that increased access through technologies such as

online dispute resolution, AI contract drafting and legal expertise commons

will ensure true distributive justice? Or will legal services inevitably divide

into two classes: on the one hand, those that use shortcuts and outcomesdriven

logic (to which most consumers will have access) and, on the other

hand, bespoke services that are more powerful and more able to engage

with the highest levels of law and government?

For most problems, the provision of shortcuts to generally acceptable

aggregate outcomes will be a great improvement to the current state of

affairs in which huge swathes of the population have no access to legal services

whatsoever. However, as we all know, the wealthy do not have exclusive

ownership of hard cases with deeply complex questions. Is it really

feasible to think that activist pro bono counsel work is the best way to

ensure such questions will get the attention they deserve? Or is it more

likely that technology will make it quite easy to bypass such questions as

online service delivery uses models that bypass lawyers and judges with

predetermined algorithms designed to ignore or reduce complexity in order

to reduce costs and improve aggregate outcomes? And are there not risks to

relying entirely on a small group of values-crusading lawyers to confront

society’s most important questions? Is that sufficient protection for the

majority of members of society who will be using services that never identify

or engage with such questions?

CONCLUDING THOUGHTS: THE FUTURE RELEVANCE OF LAWYERS

Technological change is ushering in social and political change and it will

transform the profession of law. The future relevance of lawyers will

depend on the profession’s willingness to engage with the difficult normative

questions that technology cannot now answer. Lawyers should become

the safeguards of ethics in the delivery of legal services as that activity

changes dramatically over the next two decades. The gatekeeper function

will greatly diminish. Technologies such as online dispute resolution,

expert crowdsourcing, automation and routinization, as well as the multisourcing

of legal work to disaggregated service providers, will decentralize

the delivery of legal services from a single or small group of legal profes-

sionals. Regulations will likely ensure certain basic prescriptive standards

similar to what we now have in law society codes of professional conduct.

Those will become embedded in the services themselves most likely without

the need for a lawyer. However, the larger social role of lawyers in protecting

certain normative values and ethical principles will retain merit if

lawyers engage with the challenge.

As a profession we are only relevant if what we deliver (knowledge) is

best delivered through us. As technical and everyday legal services are

overtaken by cheaper, more efficient and more accessible technological

solutions, lawyers should re-engage with one of their original guiding

tenets: ethics over profitability. That tenet has been lost in today’s profession

in favour of the profit model. Today’s profit model will be overtaken by

the global services firms and technological solutions, rendering most

lawyers as we know them today irrelevant. Large legal service providers

will not need as many lawyers as they did before in the traditional model

that relied on leverage to maximize profits per partner. Solo practitioners

will either die out or go on contract with the large providers. Specialists will

become backroom technical experts. But there remains room for lawyers to

upkeep and take on the more important roles of ensuring that those delivering

legal services engage with normative ethical questions, as well as

mediating society’s disputes about normative ethics.

The continued relevance of the legal professional will require of them far

greater breadth and flexibility than what is required of today’s lawyers. It

will demand innovation and expanding engagement beyond the technical

aspects of law. It will necessitate a deep understanding of how to modify

legal services to create space for moral debate within the maelstrom of

changes that have already started to revolutionize the law. Answering these

challenges will not be easy and will involve heartache and disruption. But

they are challenges we can no longer ignore, both for our own sake as well

as for society at large.

ENDNOTES

1. See Neil Rose, “BT Law Goes Live after Global Telecoms

Giant Wins ABS Licence”, Legal Futures (4

March 2013), online: <www.legalfutures.co.uk/

latest-news/bt-law-goes-live-global-telecoms-giantwins-

abs-licence>.

2. Online: <www.axiomlaw.com>.

3. See Dan Bindman, “AI-Based Start-Up Aims to Give

Law Firm and Their Clients Glimpse of the Future”,

Legal Futures (6 February 2017), online: <www.

legalfutures.co.uk/latest-news/ai-based-start-aimsgive-

law-firm-and-clients-glimpse-future>.

4. See “Using Artificial Intelligence (AI) to Streamline

Our Legal Services”, Dentons (1 December 2016),

online: <www.dentons.com/en/insights/news

letters/2016/december/1/uk-construction-briefing/

uk-constr uction-briefing/using-ar tificialintelligence-

ai-to-streamline-our-legal-ser vices>.

5. See Jennifer Brown, “McCarthy Tétrault LLP ‘Doubling

Down’ with Wortzmans Acquisition”, Canadian

Lawyer Magazine (4 January 2017), online:

<www.canadianlawyermag.com/legalfeeds/3618/

mccarthy-tetrault-llp-doubling-down-with-wortz

man-acquisition.html>.

6. Online: <www.business-integrity.com>.

7. Online: <www.exari.com>.

8. Online: <www.shakelaw.com>.

9. Online: <www.legalzoom.com>.

10. Online: <www.rocketlawyer.com>.

11. Online: <www.allenovery.com/online-services>.

12. Online: <www.neotalogic.com>. See also <www.lex

machina.com>.

13. Online: <www.modria.com>.

14. Online: <www.civilresolutionbc.ca>.

15. See Gideon Lewis-Kraus, “The Great A.I. Awakening”,

The New York Times (14 December 2016),

online: <www.nytimes.com/2016/12/14/maga

zine/the-great-ai-awakening.html>.

16. See MaxVal, “Litigation Databank”, online: <www.

maxval.com/litigation-database-services.html>.

17. See the Right Honourable Lord Thomas of

Cmwgiedd, “Reshaping Justice” (Speech delivered to

the organization “Justice”, 3 March 2014), online:

<www.judiciar y.gov.uk/wp-content/uploads/

JCO/Documents/Speeches/lcj-speech-reshapingjustice.

pdf>.

18. See Richard Susskind & Daniel Susskind, The Future

of the Professions: How Technology Will Transform

the Work of Human Experts (Oxford: Oxford University

Press, 2015).

19. Online: <www.lawsociety.bc.ca/support-andresources-

for-lawyers/act-rules-and-code/code-ofprofessional-

conduct-for-british-columbia>.

20. Michael J Sandel, What Money Can’t Buy: The

Moral Limits of Markets, reprint ed (New York: Farrar,

Straus and Giroux, 2013).

21. Ronald Dworkin, Justice for Hedgehogs (Cambridge,

Mass: Belknap Press, 2011).

22. See Amartya Sen, The Idea of Justice (Cambridge,

Mass: Belknap Press, 2009).

23. Susskind & Susskind, supra note 18 at 283.

24. See HLA Hart, The Concept of Law (Oxford: Oxford

University Press, 2012).

25. See George Lakoff, Moral Politics: How Liberals and

Conservatives Think, 3rd ed (Chicago: University of

Chicago Press, 2016).

26. See Ronald Dworkin, Taking Rights Seriously (Cambridge,

Mass: Harvard University Press, 1978).

27. See Lakoff, supra note 25.