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Wednesday, December 26, 2012

Subjecting Law School Officials to Professional Discipline for Deceitful Marketing to Prospective Students

Ben Trachtenberg (Missouri-Columbia), Law School Marketing and Legal Ethics, 92 Neb. L. Rev. ___ (2013):

Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics—especially those concerning the employment outcomes of law graduates—in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit.

This article exposes how pitches aimed at prospective students, including the seemingly straightforward recitation of statistics on law school websites, still paint an unduly rosy picture of the legal employment market. Focusing on Rule 8.4(c) of the Model Rules of Professional Conduct, the article explains that law school officials have exposed themselves to professional discipline, which may offer a solution to the pervasive problem of misleading law school marketing.

http://taxprof.typepad.com/taxprof_blog/2012/12/trachtenberg-.html

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Comments

Great Suggestion!
Of course, that would require the Bar to use the "self regulatory discipline system" against someone other than solo and small firm practitioners.

To date, I don't recall seeing any ethical enforcement against Big Law Firm lawyers or their firms (Daugerdas anyone?).

Although we might see the legal establishment take a run at Cooley, I suspect it will be a very cold day in He##, Michigan before we see any such enforcement against "Big Law Schools" (like U of Illinois, my Alma Matter)

Posted by: Doug | Dec 26, 2012 4:20:12 PM

It seems Prof. Trachtenberg just put together a collection of Campos' blog entries from the past yeat, as if he were presenting some original research.

Posted by: baxter | Dec 26, 2012 7:19:54 PM

The article conflates a bunch of things. False LSAT score reporting, which are the two most egregius examples presented at the beginning of the article, do not seem to have anything to do with the "value of legal education" , and this value propositiion seems to be his main argument for invoking the bar disciplinary process. Whe he gets to talking about employment statistics, he seems to be largely taking about what he considers to be true but misleading statements, rather than false statements; and indeed statements conforming to then existing ABA standards.

If true but misleading statements are the basis for bar discipline, many or most lawyers would face bar discipline on a regular basis while they zealously defend their clients within the bounds of the law.

Posted by: Hugh | Dec 26, 2012 9:07:25 PM

If the bar disciplinary authorities were to go this route, then schools will start hiring non-lawyers for their career services offices to do these certifications. That will mean another class of jobs unavailable to lawyers, thanks to Ben Trachtenberg.

Posted by: Grigg | Dec 26, 2012 9:40:19 PM

"do not seem to have anything to do with the "value of legal education" ,"

Well, perhaps because there is no value other than credentialing and school reputation recruiting/networking. There was nothing I learned in law school that even remotely transferred into actual practice - and I (or I should say my employer) paid the $2,000 or so for the Bar-Bri course that coached me through the exam that provided entrance into the profession. This isn't a unique story. Everyone at my first Biglaw firm said that the 3L year was a complete waste of time, as if the first two years weren't.

Posted by: UVAgrad | Dec 27, 2012 10:05:42 AM

Could this also be applied to lawyers who are politicians who work on political campaigns? I thought Mitt Romney's whole campaign was a deceitful and dishonest presentation of what Obama has done, and what Paul Ryan's budget says, and presented the basic math of his proposals in dishonest ways. Romney is a lawyer, and certainly had many on his campaign. Does this make him and the attorneys on his staff subject to bar discipline under the reasoning of this article?

Posted by: BT | Dec 27, 2012 10:22:34 AM

The biggest failure of disclosure is in not disclosing the bimodal distribution of compensation; however, most of this falls in the realm of the selective disclosure of true but incomplete and consequently misleading information. Until case law for this requires the granularity of disclosure required for real estate being sold in California and a few other states, nothing will ever change.

True disclosure would also include the extent of annual loan forgiveness for those taking jobs as Public Defenders, government employees, and such, i.e. total compensation, not just the offered amount. It would inform you of the statistical distribution of class rank for each group. This is important, because some of the lower-paying jobs are taken by trust-fund baby do-gooders, those who want a career as a judge or prosecutor, etc. This further squeezes the also-rans into the lower rungs of private practice, or out of the law completely.

Given that accomplishing all this though case law would involve putting some major institutions of the law under a magnifying glass - this will simply never happen through the courts.

Posted by: Doug Wenzel | Dec 27, 2012 10:30:50 AM

Thank you for the post (and thanks to the commenters for their responses).

One quick reply to Doug Wenzel: I agree that waiting for case law to develop may well mean waiting a long time. At page 53 of the draft, I mention the possibility of seeking advisory opinions from bar organizations. If bar counsel were to opine that certain current law school marketing practices violate the legal ethics rules of one jurisdiction or another, then law schools would have a strong incentive to shape up, without the need for any individual discipline.

Posted by: Ben Trachtenberg | Dec 27, 2012 1:16:16 PM

Hugh:

When you say "if true but misleading statements are the basis for bar discipline, many or most lawyers would face bar discipline on a regular basis while they zealously defend their clients within the bounds of the law" you somewhat miss the point - who is the client in this context? I would think it is the student - and lying to clients in an effort to bilk them of fees is the subject of bar discipline.

Posted by: MacK | Dec 27, 2012 4:40:34 PM

Above, commenter Hugh writes, "If true but misleading statements are the basis for bar discipline, many or most lawyers would face bar discipline on a regular basis while they zealously defend their clients within the bounds of the law."


Hugh, even accepting arguendo that lawyers use "true but misleading statements" while defending clients, is this at all relevant?

Are the law school actors engaged in the zealous defense of clients? Or are they advertising?

In their lawyer advertising, in nearly every jurisdiction, lawyers can indeed be sanctioned under the ethical rules for "true but misleading" statements made.

This would seem to be a much more relevant comparison - advertising - not "zealous defense of client".

Posted by: Concerned_Citizen | Dec 28, 2012 9:06:05 AM

Commenter Grigg writes, "schools will start hiring non-lawyers for their career services offices to do these certifications... another class of jobs unavailable to lawyers, thanks to Ben Trachtenberg."


Assuming this is not a joke or sarcasm - this is easily remedied when you consider that the dean can simply be made responsible (ethically as well as in fact) for the content of such certifications. Just as the chief executives of public corporations are made responsible for the content of theirs.

Of course, there does not at present seem to be any requirement by the ABA that the dean of an ABA accredited law school be and remain actively barred, but this also requires not more than a resolution to pass.

Posted by: Concerned_Citizen | Dec 28, 2012 9:12:40 AM

Concerned Citizen - Except in the stand-alone law schools, the Dean is not the CEO, the President is. For example, in the undergrad admissions data scandal that happened at George Washington University under President Trachtenberg's watch, according to recent press reports, President Trachtenberg was the equivalent of the CEO.

Posted by: Hugh | Dec 29, 2012 11:16:40 AM