The Ethical Practice of Human-Centered Civil Justice Design

Abstract

Over the past two decades, legal professionals have increasingly engaged in a new form of professional activity: civil justice design. In the past, legal professionals handled cases and transactions for clients or served as neutrals, including mediators and arbitrators, who helped to resolve disputes between parties. Today, legal professionals increasingly play a principal design role in creating systems that resolve streams of conflicts, disputes, and grievances between parties. Lawyers regularly now create internal grievance procedures, procedures for companies to resolve disputes with customers, and court-annexed alternative dispute resolution systems. The emergence of this new role raises difficult questions about the ethics and responsibilities that attach to legal professionals who serve as civil justice designers. The primary ethical dilemma for these civil justice designers will be the tension between, on the one hand, maximizing a client's interest and, on the other, providing the public with vibrant, fair, just, and legitimate institutions for resolving disputes. The Model Rules of Professional Conduct offer little guidance on how to resolve these tensions, and socialization into the legal profession may lead legal professionals to distance themselves from ethical responsibilities. These trends and conditions may result in systemic civil justice problems and a tragedy of the commons, which saps the longevity of our legal institutions. Yet there is a wider more virtuous moral principle that applies to all human relations: the principle of neighborly morality. In this article, I discuss the principle of neighborly morality and an analytical framework developed by Professors Howard Gardner, Mihaly Csikszentmihalyi, and William Damon for understanding role ethics. I discuss the ethical responsibilities that apply to civil justice designers, including the criteria of excellence, engagement, and ethics, and a reflective practice of dispute system design, human-centered civil justice design, which assists civil justice designers in resolving this tension.