702 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
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.
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.