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Should Law School Deans Face Ethical Sanctions?

Saturday, January 26, 2013 17:11

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Law schools have attracted admissions with a litany of dubious claims. So it should come as no surprise that some have started talking about charging law school deans with ethics charges under Rule 8.4(c), which prohibits “dishonesty, fraud, deceit, and misrepresentation” by lawyers.

Law professor Ben Trachtenberg (U. of MO School of Law) has even written a law review article arguing for it, which Bloomberg Law summed up in a corny motivational-corporate-retreat-style video.

But would it make sense to use the rules of professional conduct to go after law school deans? I don’t think so. First, because it doesn’t really make sense. Second, because I don’t think the sanctions would be very satisfying.

Ethical sanctions don’t really make sense

Even if Rule 8.4(c)’s broad language would encompass deceptive post-law-school employment statistics, that does not necessarily mean it should be used that way. (Although, as a practical matter, I fully expect a raft of ethical complaints to follow the publication of this law review article, if they haven’t already been filed.)

Lawyers’ rules of professional conduct are primarily — and properly — meant to govern the practice of law and to protect consumers of legal services. However, the preamble to the Model Rules of Professional Conduct does addresses things lawyers should do as public citizens, like improve access to justice, the administration of justice, and the public’s perception of the legal system.

There are two kinds of rules. The stuff about not screwing your clients or stealing their money are must rules. The stuff about improving access to justice are should rules, meaning you aren’t subject to sanction for not doing them.

Rule 8.4(c) says dishonesty, fraud, deceit, and misrepresentation are professional misconduct. But what if the dishonesty, fraud, deceit, or misrepresentation are not related to actually practicing law or serving clients? I’m definitely not an ethics expert, but I’m not sure how broadly we ought to read the rule. Should lawyers also have to worry about disbarment for bouncing checks at the grocery store or calling in sick in order to go to the beach? According to the strict language of the rule, yes. According to common sense, I think not. It is hard to see how dishonesty and deceit not related to the practice of law could constitute “professional misconduct.”

So what about law school deans who have engaged in misrepresentation (by omission, perhaps) for years? The job of running a law school is only tangentially related to practicing law. Bossing teachers around, begging for money, and approving advertising campaigns does not have any connection to lawyers and clients. At worst, law school deans are making the legal profession look bad by deceiving its future members.

So I don’t think the rule is the right tool for the job, here. There have got to be better ways to hold law schools responsible for their pattern and practice of misrepresenting post-graduation employment data.

Ethical sanctions probably wouldn’t be very satisfying

Even if law school deans were found to have violated Rule 8.4(c), I’m not sure the results would be satisfying. I doubt we would see deans losing their licenses to practice. Since fudging law school graduates’ employment numbers does not have a whole lot to do with practicing law, I don’t think ethics boards would see serious sanctions as appropriate.

More likely, I think, is a few slaps on the wrist — at most. Or a few private admonishments.

How will law schools get their comeuppance, then?

Maybe Trachtenberg is more persuasive (or more optimistic about the chance for meaningful sanctions) in his forthcoming law review article. We’ll know when we see it. But for now, I think law schools (and law school deans) should be held accountable in other ways.

One result we are finally seeing is a sharp reduction in law school applications. Prospective law students must finally be getting the message about the poor value of law school. Hitting law schools where it hurts, profits, ought to have a measurable effect.

Of course, real accountability could come from the ABA. Ideally, the ABA would grow a spine when it comes to regulating law schools, and start imposing some penalties on law schools caught fudging the numbers. I would like to see some NCAA-style sanctions. When colleges are caught cheating in recruitment, they often get barred from competition for a few seasons. The same thing should happen to law schools caught misrepresenting employment numbers. Pull a law school’s accreditation for a few years, and see what happens.

At a minimum, I would like to see the ABA publicly call out law schools — by name — for engaging in deceptive practices. That would be just as satisfying as seeing a law school dean get a slap on the wrist from an ethics board.

But just writing this makes me reconsider. Just because applications are down does not mean admissions will be. Law schools may go on churning out graduates as fast as ever, choosing them from a shrinking pool of applicants. The ABA growing a spine is about as likely as the next Mayan apocalypse. The court cases are foundering, which is probably the right result. Maybe ethics complaints really are all the justice we’re going to get.

(image: Should Law School Deans Face Ethical Sanctions? from Shutterstock)