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Thursday, December 27, 2012

Deborah Jones Merritt: Should Law School Deans be Disbarred for Misleading Prospective Students?

Following up on yesterday's post, Subjecting Law School Officials to Professional Discipline for Deceitful Marketing to Prospective Students:  Deborah Jones Merritt (Ohio State), Deans Disbarred?:

That's a specter that Ben Trachtenberg raises in an important new piece that will appear in the Nebraska Law Review. Trachtenberg reviews the misleading practices that have tarnished legal education during the last few years -- from manufactured admissions statistics to deceptive employment data -- and asks whether any of this conduct violates the legal profession's Rules of Professional Conduct.

For the fraudulent acts committed by Paul Pless at the University of Illinois and Mark Sargent at Villanova, the answer almost certainly is "yes." ... Personally, I think it's embarrassing that no one has filed disciplinary complaints against Pless or Sargent. The new deans at Illinois and Villanova should have done so as soon as the wrongdoing was substantiated. This would have been an effective way to close out these incidents -- and to signal to the public that we take integrity seriously in the legal profession.

But let's move on. What about all of those other "lesser" acts of deception that law schools have practiced? Trachtenberg catalogues many of these: the rosy representations of high employment rates, the omissions of material data (such as the number of graduates reporting salaries, the number employed by their own school, or the number working part-time), the clever use of nested statistics, the understated debt, and the failure to explain significant details about scholarship awards. Do any of these acts violate the Rules of Professional Conduct?

Trachtenberg acknowledges, somewhat reluctantly, that courts would hesitate to discipline much of this behavior. ... Unethical behavior doesn't start with the big acts, it begins with the small ones. Once you abuse another person's trust, even in a small way, you set the stage for larger lies. And the abuses here weren't so small: Law schools made specific representations about salaries, scholarships, and other facts to encourage six-figure investments. The people making the representations were professionals with advanced degrees, who had inside knowledge of the legal industry. Most of the people receiving the representations were college students with relatively little knowledge of either law schools or law practice. ...

It's time to reclaim our integrity by acknowledging just how wrong all of this was -- and by moving even more aggressively to make our representations to prospective students as informative and helpful as possible. If you were a prospective student, what information would you want before investing three years of your life and $100,000 or more in law school? How would you want that information presented? These are the questions we have to answer as responsible professionals.

If you want to hear more about Ben's paper, and you'll be at next week's AALS conference, join us for our "Hot Topics" panel discussion on Saturday, January 5, from 8:30-10:15 a.m. Ben, Jeff StakeScott NorbergJerry Organ, and I will discuss "Transparency Revisited: New Data, New Directions." As Ben's paper suggests, this issue isn't over. Plus, you can stop by to compliment Ben on originating the title of this post: He used it for early drafts of his paper, before accepting a more academic, law-review-appropriate title.

Wall Street Journal, Professor: Law School Advertising Violates Legal Ethics:

Professor Trachtenberg argues ... that there is ”little doubt that dishonest law school marketing conducted by members of the bar justifies professional discipline.” He told Law Blog the paper was less a call to arms than “a warning for people who are in this business.” Professor Trachtenberg is weighing whether to approach bar counsel -- the lawyers who police their own in each state -- for advisory opinions on whether “common stuff that seems to happen at a lot of law schools” meets ethical standards, he said. "I think if bar counsel says ‘No,’ it could be a good wake up call,” he said.

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Comments

Speaking of manufactured admissions statistics. There was recently a scandal at George Washington involving undergrad admissions statistics, going back a decade, and resulting in US News sanctions according to this article:

http://www.cbsnews.com/8301-505145_162-57547972/a-new-college-rankings-scandal/

And who was the President of George Washington during much of that decade? Ben Trachtenberg's father, Stephen Trachtenberg, who, according to wikipedia "In the Chronicle of Higher Education survey of college presidents' salaries for 2007-08, then-President Stephen Trachtenberg topped the nation with a compensation of $3.7 million."

President Trachtenberg is a lawyer, according to wikipedia. http://en.wikipedia.org/wiki/Stephen_Joel_Trachtenberg

Posted by: Hugh | Dec 27, 2012 2:21:17 PM

I don't think Pless was ever a member of the bar and he currently does not practice law. I'd wager that many law school administrators are not attorneys.

Posted by: ILL | Dec 27, 2012 2:49:18 PM

The original title was indeed a lot better! This is a good example of student editor stodginess and poor writing ability. Here are some of the standard rules of style violated:

1. Use fewer words if possible.
2. Use fewer syllables if possible.
3. Prefer anglo-saxon to latin.
4. Choose the concrete over the general.
5. Use your title to inform the prospective reader of what your article is about.
6. Use your title to grab the attention ofyour reader.

The old title does violate one rule: "be" should be capitalized, because it is a verb. On balance, it wins, though.

Posted by: Eric Rasmusen | Dec 28, 2012 7:43:19 AM

Wow, thank goodness Hugh came in with that timely ad hominem guilt by association et tu, Brute thing. We've been saved!

Posted by: Concerned_Citizen | Dec 28, 2012 10:56:14 AM

"and to signal to the public that we take integrity seriously in the legal profession."

Honestly, I think it's a bit late for that; It's been some time since the idea that the legal profession takes integrity seriously wasn't cause for a horse laugh. Don't you, as a profession, have some bigger fish to fry on that score? Maybe doing something about fraudulent "billable hours", perhaps? Reestablish that sophistry is a vice, not a virtue? Wasn't "ambulance chasing" once considered despicable, not a job description?

I think at this point the only people who still think the legal profession takes integrity seriously are lawyers...

Posted by: Brett Bellmore | Dec 28, 2012 7:23:42 PM