No, legal ethics involves moral judgment
By Edward McInytre, Cartoon by George Brewster Jr.
Macbeth and his team had just finished their monthly Professional Responsibility Roundtable when Rugger rushed to the speakers’ table.
“Hey Macbeth!”
“Yes, Bill. Have a question?”
“Better. I’ve got a revolution. Brilliant, if I say so myself.”
“I’m sure, Bill. Duncan, Sarah, gather ‘round and listen to Bill.”
Duncan and Sarah pulled their chairs close.
“Go ahead, Bill, floor’s yours.”
“Well, you know these ethics rules you’re always talking about —”
“Rules of Professional Conduct and the State Bar Act?”
“Yeah, them. And the ABA stuff —”
“ABA Model Rules of Professional Conduct?”
“Whatever. And cases and opinions you go on about. Here’s my brainstorm. Ready? Use AI!” Grinning from ear to ear, Rugger waived his arms like a maestro concluding a grand symphony.
“Use artificial intelligence for what, Bill?”
“You know. All that AI you’ve talked about. How it will revolutionize law practice. Well, what about — Robo-Ethics!”
“Robo-Ethics? What pray tell —”
“Load in all the rules. Case authority. Opinions. Whatever. Then, you got an ethics question? Bingo. Answer in milliseconds. Nothing to discuss. Nothing to debate. Question — answer. Next question. Might put a few of you ethics nerds out of business but — hey, stuff happens.”
“Indeed, it does. Let me see if I understand.”
“Sure. Ask away.”
“Would you propose Robo-Ethics for civil lawsuits and State Bar Court discipline cases?”
“Sure, why not?”
“As you would have it, if facts might support the violation of a rule. Or a provision of the State Bar Act. Then, Robo-Ethics would match the facts with the rule, find the violation? Add the cases for support? All in the blink of an eye.”
“You got it. That’s the beauty of it. None of this ‘but if … but if’ back-and-forth.”
“What about experience? What about moral judgment? Where do they fit in?”
“What do you mean?”
“I’m reminded of Holmes statement, ‘The life of the law has not been logic; it has been experience.’”
“That was then. This is the digital age.”
“I see. May I test Robo-Ethics a bit?”
“Be my guest.”
“Assume a lawyer’s client trust account falls to $990 when he should have $1,000 of a client’s funds in the account. If the client asked for her money, it’s not all there. Clear indication of a Rule 4-100 violation, wouldn’t you say?”
“Seems like.”
“Robo-Ethics would find a violation, I assume?”
“Clearly.”
“If it were a civil case, Robo-Ethics would find liability. Say, breach of fiduciary duty.”
“Sounds right.”
“If it were a discipline case, Robo-Ethics would find culpability. Then look at the Standards for Attorney Sanctions for Professional Misconduct, I assume.”
“Yep. That’s what you say the State Bar Court applies.”
“It does. Supreme Court as well. Standard 2.2(a) calls for a three-month actual suspension from practice for trust account comingling or failure to pay out entrusted funds. So, with Robo-Ethics, the outcome is cut-and-dried? In milliseconds?”
“What’s the issue?”
“Assume this lawyer never had a trust account problem before. For 10 years. Also assume the $10 difference was for a routine bank charge he forgot — was in a three-week trial — to deposit into the account. For Robo-Ethics, same result? Positivistic. Rule, facts, result.”
“So?”
“That’s where Holmes’ reliance on experience comes in. That’s also where moral judgment plays a role. Is this lawyer a danger to the public? Are his clients at risk for this one mistake? Should he really be suspended from the practice of law for three months?”
“But you picked an extreme example.”
“Isn’t any ethics system tested at the edges?”
“Well —”
“Let me try another example. Assume a lawyer always cuts corners. But somehow manages to stay just within the narrowest reading of the rules. Just skirts discipline. Gets a lot of chalk on his shoes but never quite crosses the line. A couple of State Bar warnings, but no discipline.”
“Know the type.”
“Then he crosses the line. Assume a violation that calls either for suspension or a reproval. What’s Robo-Ethics do? What does it look at? What informs its ‘judgment,’ if I may call it that?”
“Well —”
“That’s where moral judgment enters the picture. It views conduct not just positively. Against static rules. But through a prism of moral values.”
“That’s a lot harder. How do you know when you’re right?”
“I agree, Bill. Moral judgments can be difficult. Take time. Discernment. Sometimes means confronting the unknown.”
“But —”
“Your Robo-Ethics may be a great help gathering and analyzing data. I agree. But in the end, doesn’t each of us have to exercise moral choices about what that data means. How we apply it?”
“Guess I hadn’t thought a lot about that. Haven’t considered moral philosophy since sophomore year in college. Slept through most of the course.”
Sarah spoke, “Macbeth, are you suggesting moral philosophy should be part of a law school ethics curriculum?”
“Well now, can you think of a better place? Bill, come to the office. We can talk about this some more. There’s a lot to discuss.”
Editor’s Note: The quote comes from Oliver Wendell Holmes Jr., “The Common Law,” Lecture I, p. 1 (Little, Brown, and Company 1881).
Edward McIntyre is an attorney at law and co-editor of San Diego Lawyer.
No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.
This article originally appeared in the May/June 2018 issue of San Diego Lawyer.