Ethics Opinion: Judges Must Keep Up With Changing Technology

Judges “have an ethical obligation to maintain competence with and further educate themselves on advancing technology, including but not limited to artificial intelligence (AI),” according to a recent State Bar of Michigan ethics opinion.

The State Bar of Michigan Standing Committee on Judicial Ethics issued opinion JI-155 on October 27, 2023. According to the opinion, the increasing use of AI and other technological advancements requires that judicial officers understand how these tools will affect their conduct and the court’s docket.

“AI is becoming more advanced every day and is rapidly integrating within the judicial system, which requires continual thought and ethical assessment of the use, risks, and benefits of each tool,” the opinion says.

Michigan attorneys are ethically required to understand technological advancements. In January 2020, Rule 1.1 of the Michigan Rules of Professional Conduct (MRPC) was amended to adopt the duty of technology competence for lawyers. Shortly after, the State Bar of Michigan issued Ethics Opinion RI-381, stating that lawyers have an obligation to understand technology, including cybersecurity. The State Bar of Michigan offers training and information on technology competency through its Practice Management Resource Center. 

Opinion JI-155

Ethics opinion JI-155 points out that MRPC 1.1 says a lawyer “shall provide competent representation” to clients.

“The comment to MRPC 1.1 expressly references technological competence,” the opinion explains. “This need for competence applies to judicial officers as well. Specifically, Canon 3(A)(1) of the Michigan Code of Judicial Conduct provides that ‘[a] judge should be faithful to the law and maintain professional competence in it.’ As the use of technology increases, so does the requirement to maintain competence in what is available, how it is used, and whether the use of the technology in question would affect a judicial decision.”

Next, the opinion points to Canon 2 of the Code of Judicial Conduct for support. Canon 2 says:

“A judge should avoid impropriety and the appearance of impropriety in all activities.

                        …

B. A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.

C. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others, but participation in activities allowed in Canon 4 is not a violation of this principle. …”

The opinion further cites Canon 3, which says:

“A judge should perform the duties of office impartially and diligently. The judicial duties of a judge take precedence over all other activities. Judicial duties include all the duties of office prescribed by law. In the performance of these duties, the following standards apply:

A. Adjudicative Responsibilities.

(1) A judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interests, public clamor, or fear of criticism. …

B. Administrative Responsibilities.

(1) A judge should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials. …”

The opinion continues by discussing AI in more detail. “Artificial intelligence (AI) is not a single piece of hardware or software but a multitude of technologies that provide a computer system with the ability to perform tasks, solve problems, or draft documents that would otherwise require human intelligence,” the opinion states. “The increasing use of AI and other technological programs and devices requires judicial officers to understand how these tools will affect their conduct and docket in accordance with” the judicial canons.

“Canon 2(B) and (C) could be triggered, for example, if a judicial officer uses an AI solution that is considered partial or unfair and may influence the judicial officer’s judgment,” the opinion explains. “This could occur if the tool’s algorithm or training data creates bias. … An algorithm may weigh factors that the law or society deem inappropriate or do so with a weight that is inappropriate in the context presented. This is but one example of why knowledge of technology and AI is essential.”

According to the opinion, “AI does not understand the world as humans do, and unless instructed otherwise, its results may reflect an ignorance of norms or case law precedent. Competency with advancing technology is further required by Canon 3(B), which requires judicial officers to ‘maintain professional competence in judicial administration.’ Legal knowledge, skills, thoroughness, and preparation are required for judicial officers to perform their duties. This includes knowing the benefits and risks associated with the technology that judicial officers and their staff use daily, as well as the technology used by lawyers who come before the bench.”

The opinion acknowledges that AI may be used improperly. However, when AI is used appropriately, it is “an asset for the legal community, such as creating accurate content for pleadings and legal summaries, providing efficiency in docket management and legal research, and supplying answers to questions based on algorithms used by technological programs,” the opinion says.

“Judges must determine the best course of action for their courts with the ever-expanding use of AI,” the opinion states. “Judges need to understand artificial intelligence and the deep learning it eventually acquires for the following reasons:

• Advancing AI will eventually lead to inquiry and adjudication of AI-related technologies and their use in other matters before the court.

• Most artificial intelligence programs continue to learn, which requires adjustments in algorithms and formulas as they receive new and additional data. Due to this learning capacity, AI applications may need to be re-litigated or re-evaluated on an ongoing basis, even when there is precedent addressing the same AI tool.

• Due process will be a challenge when dealing with AI tools, as a litigant cannot question the algorithms and the deep learning the AI tool acquires over time.”

Further, judicial officers must not only understand the legal, regulatory, ethical and access challenges of AI, “but they will need to continually evaluate how they or parties before them are using AI technology tools in their own docket,” the opinion says. “Judges must also understand the science and law relating to electronically stored information and e-discovery. Judicial use of AI must distinguish between using an AI application to decide and using AI to inform a decision.”

The opinion concludes, “The most important thing courts can do today is to ask the right questions and place their analysis and application of how they reached their conclusion on the record.”