Why We Cannot Expect Change from the ABA

As Dean O'Brien writes, the ABA is currently considering a series of changes to how law schools report employment information for recent graduates.  Unfortunately, his statement of the problem raises doubts about this effort:

Though the number of institutions that fail to report employment data accurately is small, their actions hurt the credibility of our entire industry.  For that reason, the ABA Section on Legal Education and Admissions to the Bar (of which I am the current chair) has taken a fairly aggressive stance on addressing this issue, with job placement information now being reported directly to the ABA.  This will have positive impacts; the quality of the information will be better and the specificity of the data will increase.

The credibility of legal academia as a whole has suffered not owing to the bad conduct of a few law schools but because it has been widespread and systematic.  The problem is not that the information is inaccurate (though that is also a problem) but because it is stated in misleading ways.

Let me offer an example.  South Texas College of Law lists in the current US News profile its earnings quartiles for full-time private sector jobs as follows: $75,000 (25th percentile), $92,500 (median), $160,000 (75th percentile). That looks great. However, only 5 percent of the people employed in the private sector provided salary information. What this means is that those numbers represent 18 graduates (at most) out of a class of 376.

These numbers are "accurate" in the sense meant by Dean O'Brien, but there is a problem nonetheless.  Many law schools report salary numbers in problematic ways, including elite law schools, as I detail in this post.

The same kind of accurate but misleading information exists for the employment percentages reported by law schools.  As this article describes, law schools across the board have been advertising 90% to 100% employment rates in the past decade using all sorts of dubious methods.  Just about all of this was "accurate."  Meanwhile, as elaborated here and here, the true underlying picture is that as many as a third or more of law graduates during this period did not land jobs as lawyers.

Rule 7.1 of the ABA Model Rules of Professional Conduct specifies that "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services."  A Comment adds, "Truthful statements that are misleading are also prohibited by this Rule.  A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading."  A strong argument can be made that the salaries and employment rates law schools advertise fail this standard (setting aside whether it applies to law schools).

To my knowledge, the currently proposed reforms do not solve the misleading (though accurate) salary reporting problem, and the employment data for 2010 is less transparent (the ABA intentionally did not ask what percentage of the class obtained jobs as lawyers, nor what percentage of these jobs are part-time).  The reforms for 2011 will be an improvement, but if the data is reported in a manner that confuses prospective students (flooding them with details in a way that hides what is essential), the potential for misleading them will remain.

Genuine reform will not come until the ABA Section on Legal Education stops operating to protect law schools and instead serves a genuine regulatory function.

Brian Z. Tamanaha

Comments

[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

[louis vuitton shop]

Hello would you mind stating which blog platform you’re working with? I’m planning to start my own blog soon but I’m having a tough time making a decision between BlogEngine/Wordpress/B2evolution and Drupal. The reason I ask is because your layout seems different then most blogs and I’m looking for something completely unique. P.S My apologies for being off-topic but I had to ask! louis vuitton shop http://andhoffyo.webnode.fr