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 Stake, Scott Norberg, Jerry 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,
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.