700 V O L . 7 5 P A R T 5 S E P T E M B E R 2 0 1 7 THE ADVOCATE
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
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.