The Algorithm as a Human Artifact: Implications for the Duty of Competent Representation

Obligated to remain ahead of the curve, comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct demands competence in both practice and technology. Together, these two competencies require attorneys to understand how algorithms work in our legal databases.

This, however, may be easier said than done. When using each of six different legal research databases, the search algorithms were given the same search terms to find cases in the same jurisdictional case database. Yet, the results returned were dramatically different.

Created by humans, every algorithm was made with its own preset matrix of assumptions, biases, and enhancements, resulting in a unique algorithmic worldview. So what’s a lawyer to do? Do we have an ethical obligation to use more than one research platform to better serve clients? What creative search strategies can the profession learn to overcome this algorithmic variability?