Michigan Ethics Opinion Requires Judicial Technological Competence

Emma Cueto reports that the Mich. State Bar Says Judges Ethically Must Keep Up With AI – Law360 (Nov. 9, 2023); see Ethics Opinion: Judges Must Keep up with Advancing Technology (michbar.org).  The full ethics opinion is posted at Ethics Opinions Search Detail (michbar.org).

I don’t think it is a good idea, for reasons I stated in  40th State Adopts a Duty of Technological Competence – Is It a Good Idea?(Mar. 31, 2022).

It’s not that I am against technological competence – I’m all for it.

However, the new duty is undefined and, perhaps, undefinable.  Vague exhortations to “be technologically competent or risk an ethics violation” have little meaning, in my opinion, and may “weaponize” an unclear technological issue.

I ask whether – without more definition – an express “technological competency” amendment adds much.  In my opinion, the contours of that duty are unclear.  And, if a “duty” cannot be clearly defined, is it a “duty”?  Id.

There is another issue.  How does one become technologically competent in AI?  See Craig Ball, The Conundrum of Competence in E-Discovery: Need Input | Ball in your Court (craigball.net) (May 6, 2019)(“Requiring competence is just part of the solution to the competence crisis.  The balance comes from supplying the education and training needed to become competent.  You can’t just order someone who’s lost to “get there;” you must show them the way.  In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.”)(emphasis added).

What is required by the Michigan opinion?

The opinion states: “Judicial officers, like lawyers, have an ethical obligation to maintain competence with and further educate themselves on advancing technology, including but not limited to artificial intelligence (AI).”  It adds:  “Judges must not only understand the legal, regulatory, ethical, and access challenges associated with 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 states that:

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 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.

….

Judicial officers have an ethical obligation to understand technology, including artificial intelligence, and take reasonable steps to ensure that AI tools on which their judgment will be based are used properly and that the AI tools are utilized within the confines of the law and court rules. Further, as AI rapidly advances, judicial officers have an ethical duty to maintain technological competence and understand AI’s ethical implications to ensure efficiency and quality of justice.

Ms. Cueto wrote: “In light of this, judges have an ethical obligation to understand the technology and its risks, the opinion concluded.”  The article states:

Ray McKoski, a retired Illinois state court judge and adjunct professor of professional responsibility at the University of Illinois Chicago Law School, said this opinion is exactly in line with the position he expects state bars across the country to take.

“The approach that the Michigan Bar Association took is totally expected, totally logical and totally consistent with how codes of conduct try to define a judge’s ethical obligations,” McKoski said.

In her excellent and comprehensive article, Ms. Cueto reported that: “The Michigan decision also resembles an ethics decision released in September in West Virginia, which also stated that judges have an obligation to remain competent in technology….  . Multiple states, including New Jersey, Texas, Florida and Connecticut, have a task force or working group put together by the state bar or state supreme court to study the issue, and the American Bar Association also launched a task force in August.”

I am in favor of task forces and working groups to study AI.  In my opinion, to transplant Craig Ball’s argument,[1] the Michigan opinion just orders someone “to get there,” without showing the way.

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[1] Craig was writing about rules requiring attorney technological competence.  The Michigan opinion applies to the judiciary.