Robots and legal ethics – duty to the court
by Michael Dolan.
In Henry VI, William Shakespeare’s character Dick the Butcher says: “The first thing we do, let’s kill all the lawyers.” Whilst originally meant to be complimentary of honest lawyers in the context of Dick plotting treason to install a new English monarch, ever since the 1600’s the world has regarded the words as a worthy pursuit for wider society, especially in the USA. In recent times there has been much written about the possible role for Artificial Intelligence (AI) in the practice of law and the administration of justice. There is much to commend this approach from an efficiency and cost-saving viewpoint, but it does have some significant limitations, especially in the area of lawyers’ ethics.
The use of AI in the law in Australia really came of age in the early 1980’s in the Royal Commission on the Activities of Federated Ship Painters and Dockers Union conducted by Mr Frank Costigan QC assisted by Senior Counsel Mr Douglas Meagher QC. (1)
In its Final Report, Volume 1 published in October 1984 the Commission outlined the course it had taken to use AI to manage efficiently and effectively the huge amount of information and documents which it had gathered in the course of its far-reaching investigations across Australia:
“The Commission commenced its hearings in the first week of October 1980. In the first few weeks its main task was to travel around Australia to each capital city and obtain from the Union all of its records. This exercise produced a massive number of documents. It became apparent in the first week of the Commission that the documents which would be acquired would be so large in number that no manual filing system could sensibly cope with them, and they would be impossible to analyse without the use of modern management systems. Accordingly, immediate steps were taken to make use of computer facilities under the control of the Department of Administrative Services. In addition, it became clear that special computer programmes would need to be written to enable the material to be accessed and manipulated in a way which would assist in the answering of the questions which flowed from the Terms of Reference.
This was put in hand and computer consultants were engaged.
They have continued to be engaged by the Commission since
that time. Senior Counsel assisting me, Mr Douglas Meagher,
Q.C., provided detailed specifications to the consultants setting out the precise needs of the Commission. The development of the programmes continued throughout the life of the Commission and enhancements to the system occurred almost on a weekly basis.”
Since the 1980’s there have been far reaching advances in the use of AI both in society generally and the administration of justice in particular. There is no doubt that in the “info-world” in which we now live, the use of AI is essential for democracy to function. The rule of law is a basic pillar of that system of societal government.
In a recent article published in the journal of the American Bar Association an AI commentator wrote:
“Despite the shaky ground on which certain hybrid intelligence applications stand, the legal domain does offer a hopeful, if still evolving, paradigm for the deliberate, mindful, progressive adoption of AI systems: electronic discovery. Hybrid intelligence has been applied in discovery for well over 15 years.” (2)
The article argued for the introduction of a moral code for the use of AI based on general ethical principles:
“While much remains to be done in addressing the complex ethical, legal and practical issues involved in entrusting legal decision-making to machines, electronic discovery offers an ethical blueprint on how humanity can reap the benefits of AI while mitigating its risks. This blueprint reflects six ethical principles that can be inferred from the combined—if still diffuse and unsettled—wisdom of courts, practitioners, academics, research institutes…”
Whatever may be the outcome of this increasing debate, one area that will continue to resist the advance of AI in the law is the field of legal ethics. In teaching ethics to solicitors I always make the point to my audience that very often there are no black and white answers to ethical questions – only lots of maybe yes, maybe no.
There is no doubt that much of the learning and research upon which we rely in legal ethics could be harnessed usefully in a digital format to save time and make us focus on the relevant, but, in the end, human personal and moral judgments will need to play a significant part in the final outcome.
We must always remember that, as officers of the court, our paramount duty is to the court and the administration of justice. Unless and until our judges are replaced by robots, we will need to continue to apply moral judgments in fulfilling our paramount ethical and professional obligations.
As much as Dick the Butcher may have wished to rid society of lawyers to further his own nefarious ends, it is doubtful that he will ever be placed in the situation where his plea will be: “The first thing we do, let’s vaporise all the robots.”
- Royal Commission on the Activities of Federated Ship Painters and Dockers Union,1984 https://www.parliament.vic.gov.au/papers/govpub/VPARL1982-85No175.pdf
- Nicolas Economou, A ‘principled’ artificial intelligence could improve justice, http://www.abajournal.com/legalrebels/article/a_principled_artificial_intelligence_could_improve_justice