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THE IMPORTANCE OF ETHICS IN A CHANGING LEGAL MARKET

November 8, 2019

Why ethical awareness must remain at the core of legal practice

 

 

In the last decade the legal market has rapidly changed – and it will only be changing more. Because of the emergence of new types of legal services, a more demanding clientele, globalization, and the increasing use of technology and artificial intelligence, law firms all over the world are facing new challenges. Everything in the legal industry is shifting, from the way people work to the way law is created and enforced. In this changing, customer-oriented market, fueled by technological developments, ethical challenges arise – challenges which can easily be overlooked. In this article I will discuss some of these developments and challenges, and argue why ethics are an important part of law which should not be overlooked. 

 

People are increasingly more aware of the options they have when seeking legal advice. Clients are seeking greater value for their money, pushing law firms to invest in ‘more for less’ technologies. Lawyers are expected to not only have extensive knowledge of the law, but also to be competent users of technology and have deep insight in the clients’ needs. While this ‘client-first’ approach has many advantages, morals and integrity might be at risk when client-service is constantly prioritized. Clients usually won’t be too concerned about ethical principles; that’s simply not what they are paying for. It is the lawyer’s task to be aware of this and find solutions that comply with professional ethics. Research has found that especially within in-house teams there is a general weakness of ethical infrastructure, with little attention being payed towards training, guidance, appraisal and discussion [1]. Law firms as well as in-house teams should always strive for a healthy balance between client-service and professional principles and ethical integrity. 

 

While clients are expecting more, the legal market is also expanding. With new types of jobs and different kinds of legal service providers emerging, the legal supply chain doesn’t just consist of lawyers anymore. When people have a legal problem, they will probably consult the internet first. Many internet-based businesses are providing legal services just like ‘classic’ law firms, but for a fraction of the price. Online legal providers however aren’t always as transparent as ‘real-life’ law firms. How do customers know if they are getting reliable advice from licensed lawyers? Again, ethical values might be at stake when new, alternative businesses are coming into the market, providing legal services in different ways. It is important to ensure that alternative legal business structures provide the same services as established law firms, based on the principles and ethics that lawyers work with. 

 

These developments are important factors in the transformation of the legal sector, but the most important development of the last couple of years is probably the rise of artificial intelligence. Algorithms, blockchain and smart contracts are key words in these developments. Despite a certain fear of ‘being replaced by robots’, artificial intelligence systems are becoming more and more integrated in legal practice, while lowering costs, increasing consistency and providing new solutions to legal issues. However, considering the speed at which new systems are being developed, moral values might be forgotten. Ethicists worry about a lack of transparency, poor accountability, unfairness and bias in automated tools. [2] For example, Amazon’s recruiting engine, which used algorithms to review job applicants’ resumes with the aim of mechanizing the search for top talent, turned out to favour men, after which the company had to stop using it [3]. 

 

Another important issue in artificial intelligence is that of liability. In the classic example of the self-driven car, who is liable when the car crashes into a crowd of people? And the question that precedes it: How should the car be programmed? Does it protect the crowd or the passengers? Should this also depend on the number of passengers as opposed to the number of accidental bystanders? The choice is no longer directly being made by the passengers of the car. How artificial intelligence systems make decisions is based on the work of several people such as designers, developers, financiers and users; therefore liability and responsibility are also distributed. 

 

Machine learning is still far from perfect and has many challenges to overcome. The results are usually only visible when the damage is already done, and there is serious lack of transparency. Decision-making systems are often deployed as background processes, unknown and unseen by those they impact. [4]  In the case of the Amazon recruiting system, job applicants might never know it was being used.

 

This makes it very difficult to undertake action against unfairness in algorithms. In addition, this raises big questions about liability. 

 

When important decisions are being made by machines, is there still room for ethics? Right now, the law is an ex-post mechanism: first, a fact occurs, after which law and rules are applied to these facts. By laying down rules in code, all possibilities are determined in advance. But should complex questions like these even be put in code?

 

There is no regulation for these kinds of questions yet. Lawmakers simply cannot keep up with human inventiveness, but the lawless space is rapidly growing. Lawyers understand where legal and ethical problems may arise: they should always use this knowledge when dealing with artificial intelligence. After all, artificial intelligence will become even more prevalent in the future. To use these systems responsibly, and to be able to perform their ethical duties competently, they need experience in how artificial intelligence works. Only then will they be able to give their clients valuable advice. And even when new laws are made, lawyers still need to be aware of ethical values. As Richard Susskind has said, one cannot look to the letter of the law, to tell what is ethical and what is not; one can only use the law to find out what is legal and what is not [5]. This does not only apply to lawyers, but to everyone who deals with artificial intelligence. Because of new types of jobs and more interdisciplinary work in the legal field, it cannot always be ensured that every person involved has had the same ethical education as a lawyer who went to law school has had. Technologists and other practitioners of artificial intelligence must become familiar with the study of ethics, and actively engage and work together with lawyers. In my opinion, this is the only way in which ethical issues can be tackled immediately when they emerge, without humans eventually losing control. 

 

Every innovation is a double edged sword: It can do a lot of good, but at least as much harm [6]. In the legal field, innovation brings many advantages, which are enjoyed by both legal professionals and their clients. However, it must not be at the expense of ethics. Ethics are a fundamental aspect of the law and legal practice and should remain so. Necessary regulation will probably be introduced in the coming years, but the law will always stay one step behind. In this ever changing, increasingly commercialized and digitized world, lawyers must be aware of the ethical questions that new developments entail. In this way, they can maintain their position in legal business, and increase the public’s confidence in their profession. Ultimately, this will result in a more meaningful legal practice which benefits all parties involved. 

 

Notes

  1. The FLIP report 2017, via https://www.lawsociety.com.au/sites/default/files/2018-03/1272952.pdf. 

  2. https://cpr.unu.edu/the-role-of-global-corporations-in-ai-ethics.html. 

  3. https://www.reuters.com/article/us-amazon-com-jobs-automation-insight/amazon-scraps-secret-ai-recruiting-tool-that-showed-bias-against-women-idUSKCN1MK08G. 

  4. The FLIP report 2017, via https://www.lawsociety.com.au/sites/default/files/2018-03/1272952.pdf. 

  5. ‘What’s artificial about ethical AI in the legal industry? Everything.’ Via abovethelaw.com. 

  6. https://www.law21.ca/2016/09/the-ethics-of-innovation/. 

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