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« With Much to Celebrate, Room to Improve in Legal Education | Main | A Law School Fantasy: Slashing Costs and Improving Preparedness »

11/01/2011

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BL1Y

Here's the other reason we cannot expect change from the ABA:

"Finally, with respect to your specific question about requiring changes in the way schools report salary and employment information on their recent graduates, the Section is in fact looking at ways it might revise its annual questionnaire to law schools to elicit additional information. While there is no evidence that we have seen that schools are inaccurate in their reports, we may not be asking all the right questions, and that is under review."

Oh, well, that sounds promising. ...Until you see that it's from ABA President Carolyn Lamm, in January 2010.

How much good could be done immediately if an ABA President simply used the bully pulpit to condemn fraud?

There is actually very good evidence showing that if you remind people that they're supposed to behave ethically, they actually do so more often. The ABA President should go knock on every Dean's door and ask him to display the school's honor code prominently in his office.

Bill Henderson

I agree. We have a problem. Let's deal with it head-on. We would be better off with tough regulation for the benefit of prospective students. Short term pain (albeit unevenly among law schools) but longer term health.

Imagine if the ABA got tough five years ago? Hard choices get more expensive with time.

John Steele

The ABA bodies dealing with accreditation are dominated by academics. It's a case of regulatory capture.

Brian, why focus on 7.1, which deals with a lawyer's services? Shouldn't we focus on 8.4? Shouldn't a state bar investigate when anyone with a law license puts out false or misleading employment numbers?

EH

@ John Steele--Who puts out the employment numbers? How are the rules applied to law schools?

John Steele

I'm thinking of the couple of schools that admitted using false numbers. If the state bar were to be involved, it would have to be predicated on falsity by a licensed lawyer. Lots of assistant deans and deans are licensed -- although not all are.

Rule 8.4 charges can usually be based on falsehoods in any part of your life. It's usually not limited to law practice. Where a falsehood was so closely related to the legal profession, it seems to me to be a good candidate for a state bar investigation.

Thomas

While we're talking about professional conduct rules, I'd remind you of your obligations under Rule 8.3.

Russ LaPeer

We cannot expect any change from the ABA because unlike the ABA I learned about and participated in during the later 1970's and in the 1980's, the focus is no longer on assisting attorney's in their practice of their profession. Instead, the ABA is the captive mouthpiece of liberal idealogues whose principal concern is to foist their political & ethical viewpoint on every conceivable issue that arises, with the use of the members' money, while pretending to speak for those members. If the ABA would concentrate on benefiting the legal profession by assisting attorneys, there might be the change needed in obtaining truthful information about law school graduate placements. That is unlikely to happen because the ABA would have to cease its liberal interloping into every social, political, financial, international, and ethical question, and return to the objective of helping lawyers. Fat chance!

BL1Y

This is probably dumb question, but how when are ABA elections? Who gets to vote? How are committees selected?

Deborah J Merritt

I like the analogy to Rule 7.1 because it highlights the problem of material omissions. Ordinary business people are allowed to make material omissions when they advertise their services; the consumer must look for the fine print and ask the right questions. But lawyers are professionals with higher obligations. A defense lawyer could not ethically advertise "I take every case to court" when 99% of those courtroom resolutions are allocutions for plea bargains. The lawyer's statement is literally correct, but it omits material information. A prospective client would reasonably believe that the lawyer tried every case before a jury--a misunderstanding that might well persuade the client to hire that attorney.

Law schools, as Brian writes, have been making statements shockingly like "I take every case to court." When a law school announces that 99% of its graduates are employed within 9 months of graduation, prospective students reasonably believe that those jobs are full-time, professional positions drawing substantially upon the graduate's JD training. Information about the number of part-time jobs, law school created jobs, and non-law-related jobs is very material to prospective students. So is more accurate salary information--another area in which schools have been making technically accurate but grossly misleading statements. (Actually, the statements about salaries are downright embarrassing to any school that supports empirical research. Faculties would not tolerate analogous statements in research, and we shouldn't make them when advertising to prospective students.)

The point of Brian's analogy, I think, isn't to urge bar discipline against law faculties. I take it instead as an excellent way of asking the question: How, as professionals (in both the academy and the legal field), can law faculties tolerate making these kinds of material omissions to their future students and colleagues in the legal profession? It's a practice that absolutely needs to stop.

Brian Tamanaha

John,

I cite 7.1 for the reason Deborah suggests--because the Comment is right on point. Many legal educators questioned about these matters, including Dean O'Brien in his post, continue to insist that the numbers are "accurate." That is simply denial. Anyone who has paid attention knows of our misdeeds, and continuing to deny it merely further diminishes our collective credibility.

That aside, I believe an argument can be made that 7.1 applies to law schools, although it would require that we think in broad terms. The "legal services" provided by law schools is delivering a legal education--including teaching and modeling the rules of professional responsibility--and the dean (a lawyer) certifies information put out by law schools.

Having said that, I agree with you that 8.4 is more easily applicable.

Whether or not law schools are subject to sanction from the bar for these actions, it is evident that they are inappropriate. The fact that the Chair of the ABA Section on Legal Education continues to deny it is an indication that we are still resisting the necessary reforms.

BL1Y

Brian: Characterizing legal education as "legal services" is too much of a stretch. I think it's pretty clear that legal services refers to the practice of law. It refers to a lawyer and the lawyer's services. I think that's lawyer qua lawyer, and not the services of a lawyer qua professor. If teaching law counts as legal services, then we have a lot of people practicing law without a license.

8.4(c) is pretty spot on though. It doesn't even matter if the numbers published are "accurate." All you need is a misrepresentation or deceit. I think you can have that even with factual truth.

John Steele

Brian, I see. Personally, I'm serious about a bar investigation if, for example, one of those assistant deans who pumped out admittedly false stats has a law license. In that case, 8.4 is the horse to ride.

Years ago, I was at a plaintiffs' firm and we got a case dealing with SBA set-asides. You had to be 1,000 or fewer employees to be eligible. Under the regs, you had to count your employees each week and use the running 52 week average. But the SBA had inadvertently failed to delete an older, alternative way to measure size. Under that approach, you could measure yourself on the last week of each business quarter and average the four numbers.

Our client discovered that a competitor was using the 4-week method and was "firing" hundreds of employees for that week and "re-hiring" the following week. They argued that they were following the measurement rules. The judge, who was normally death to plaintiffs, actually granted us summary judgment on the issues of false statements and intent to deceive. It's a published decision. I don't know why that type of analysis wouldn't work for all those schools who "hire" their students for a few weeks so that they can juke the stats.

IIRC, a similar "end of the quarter" trick was used in the Refco case.

Jim Milles

John, you are absolutely right about the regulatory capture of the Section on Legal Education and Admissions to the Bar by legal academics. Perhaps a sign of the effectiveness is that capture is that most legal academics don't even see it. My sense is that most of my colleagues find the ABA standards to be irrelevant and intrusive precisely because the believe the process is controlled by the practicing bar. Think about that: the fact that so many faculty and deans completely dismiss any role of the profession in shaping legal education. (Well, the practicing bar does serve one purpose: development and fundraising.)

Mukesh

I was at the law school for their March atmdtied students weekend, and we were shuttled over to the theater to watch the musical's first night. The musical was fraught with references to specific professors, jokes on legalese, and inside jokes about the law school itself (our wireless internet is slow, har-de-har); I found these things particularly alienating and unfunny. However, most of the vocalists were surprisingly talented and those who weren't were at least passable. I also thought the song parodies were quite well-written and funny, and most of the dancing was impressive as well. I wouldn't have run off to see it on my own, but I don't regret seeing it. Would I describe it as funny? Not really; but for the most part it was entertaining.

Nuris

the potential of this bernuoging new media (there are over 500 million Facebook users) and the ABA just decided to can its tepid dive into social media ‘LegallyMinded.’ I’m not quite sure what message this sends to the legal profession and no reason was given

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About the Blog

  • Rising tuition. Misleading employment statistics. Inadequate skills training. Law schools have faced plenty of criticism for their role in the struggles of young lawyers today. The National Law Journal has assembled a panel of legal educators and law graduates to discuss whether law schools are facing a crisis, and how they should respond to their mounting problems.

Law School Review Contributors

  • Brian Tamanaha
    A professor at Washington University in St. Louis School of Law who writes about law schools on the blog Balkinization
  • Erwin Chemerinsky
    Founding dean of the University of California, Irvine School of Law
  • John F. O’Brien
    Dean of the New England Law, Boston and chairman of the Council of the American Bar Association’s Section on Legal Education and Admissions to the Bar
  • Kyle McEntee
    A 2011 graduate of Vanderbilt University Law School and the executive director of Law School Transparency, a nonprofit group advocating for legal education reform
  • Lucille Jewel
    Professor at Atlanta’s John Marshall Law School who has written about the problems faced by recent law school graduates
  • Michael A. Olivas
    A professor at the University of Houston Law Center and the current president of the Association of American Law Schools
  • William Henderson
    Professor at Indiana University Maurer School of Law—Bloomington who studies the legal profession

Law School Review: Further Reading