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." Rule 8.4(c) declares that "It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." As Trachtenberg acknowledges, disciplinary committees don't punish every deceit under this provision; it's ok to lie to small children about strange men in red suits. But committees and supreme courts do discipline lawyers for dishonesty that "jeopardizes the public's interest in the integrity and trustworthiness of lawyers." When law school deans--or their assistant deans--lie persistently and publicly about the credentials of their students, that seems to fit the disciplinary bill.
Trachtenberg also notes that Rule 8.3(a) requires lawyers to report ethical misconduct by their peers. The particulars vary from state to state, but most states impose this duty when a lawyer "knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." By this point, quite a number of lawyers know about the dishonest acts at Illinois and Villanova. Why hasn't any lawyer reported Pless or Sargent to the disciplinary authorities?
The honest (and cynical) answer is that we don't take these rules seriously. We look the other way, especially when the people who commit unethical acts are people "like us"--they graduated from good schools and followed conventional career tracks. We condemn the sins, but not the sinners. We assume that people like Pless and Sargent succumbed to overwhelming pressure, have learned from their mistakes, and have been "punished enough." Why make a big deal about all this? Can't we just forget about Illinois and Villanova already?
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. Some states require an intent to deceive under 8.4(c); others require at least recklessness. Going forward, it might be possible to prove recklessness or intent if a school persisted in discredited practices. But for past behavior, deans undoubtedly would argue that statistics are confusing, lawyers are bad at math, and they were just doing what other schools do. Do a few bad pie graphs really constitute intentional fraud?
Like Trachtenberg, I doubt that state supreme courts would have the stomach to discipline deans for the statistical shenanigans of the last few years. And many members of the legal academy will protest that cooked books are "a far cry" from slightly warmed statistics.
But I disagree with those protests. 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.
Law school deans and professors aren't as bad at math as they claim; their analytic skills are pretty good. Any faculty workshop or tenure review committee would have torn apart the reporting methods adopted by most law schools in recent years. And it's no accident that all of those methods happened to favor law school interests; these weren't random blunders.
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, law-review-appropriate title.
Update: Both the Wall Street Journal (subscription required) and TaxProf have posted on Trachtenberg's piece.