Ben Trachtenberg's Article on Deceptive Law School Marketing

Adding to the criticism of the law school industry is Ben article "Law School Marketing and Legal Ethics," forthcoming in Nebraska. It can be found at the URL below.

Judgment day is coming for our cushy corner of the universe, pushed along by declining enrollments and a J.D. job market that can absorb fewer than 60% of current graduates. While some of the j'accuse polemics may be overwrought and occasionally even unfair, much is deserved. Ben assembles the evidence with care and makes his case.

Article is here.

Here's the abstract:

Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics—especially those concerning the employment outcomes of law graduates—in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit.

This article exposes how pitches aimed at prospective students, including the seemingly straightforward recitation of statistics on law school websites, still paint an unduly rosy picture of the legal employment market . Focusing on Rule 8.4(c) of the Model Rules of Professional Conduct, the article explains that law school officials have exposed themselves to professional discipline, which may offer a solution to the pervasive problem of misleading law school marketing.

Comments

[John Steele]

Steve, the link you posted went to a microsoft mail exchange dead end, so I edited to add the link.

[Richard Painter]

Right on point. If these materials were used to sell securities, they would be liable for securities fraud under 1934 Act Section 10b. My solution: make all law schools sell $1 million in debt securities with a 1933 Act registration statement incorporating all of these materials by reference. Then lets see what happens. Graduates who took securities litigation would at least have some gainful employment.

[John Steele]

Ben does a good job making a catalog of all the ways that law schools use deceptive statistics. Another way to regulate law school deception is through law suits.

As we all know, the lawsuits against law schools, using consumer fraud statutes, have had mixed results. I recently posted about the New York appellate decision, which I found unsatisfying. The appellate court held for the law school. But the court wanted to have it both ways. At the end of the opinion, the court scolded the school for being less than candid. It seems to me that the behavior which warrants that scolding is behavior that survives a motion to dismiss under a fraud statute.

And in response to Richard's comment, I've long said that if I were a law school dean there is no way I would put my signature on any of the stats we've been seeing. If not making it a securities act disclosure, can we at least create a Rule-11-type standard?

[Ben Trachtenberg]

Thank you for the kind words. Readers interested in this subject may wish to attend a "hot topic program" panel at the upcoming AALS Annual Meeting in New Orleans. It's on Sat., Jan. 5, from 8:30 to 10:15 a.m.

The title is "Transparency Revisited: New Data, New Directions," and panelists include Deborah Merritt (Ohio State), Scott Norberg (Am. Bar Assoc.), Jerry Organ (St. Thomas -- Minn.), and Jeff Stake (Indiana), with me moderating.

See page 25 of the AALS meeting program (http://aals.org/am2013/FinalProgram2013.pdf) for details.

[Ben Trachtenberg]

Looks like I messed up the URL of the AALS annual meeting program in my previous comment. I'll try again: http://aals.org/am2013/FinalProgram2013.pdf

[Jacob Henny]

The analogy to the regulation of lawyer advertising seems misplaced. Lawyer advertising is regulated largely so that a lawyer can say very little about the chances of success. In discussing law school employment statistics, schools have been required to disclose to the ABA what their employment statistics are, utilizing ABA/NALP definitions. Those ABA/NALP definitions said something different in the past than they do now, and class action lawyers are saying the ABA/NALP definitions in the past said something different than a prospective student would understand them to be.

Lawyer advertising is regulated so that an employment lawyer is not allowed to say, e.g., I have won 85% of my cases. If we were to analogize this to the regulation of lawyer advertising, it would mean that schools would be largely prohibited from advertising any employment statistics, as past results are not a predictor of future success.

[Andrew Perlman]

I tend to agree that Rule 7.1 is a useful analogy for considering what law schools should be permitted to say about themselves: http://legalethicsforum.typepad.com/blog/2005/04/andrew_perlman__1.html

That said, I think it would be a mistake to amend Rule 7.1 to cover legal education. As the commenter above suggests, such an expansion of Rule 7.1 could make law schools reluctant to offer some useful information out of concern that bar counsel could potentially interpret it as misleading.

I'm also a little bit concerned about interpreting Rule 8.4(c) as expansively as Ben's excellent article suggests. If a lawyer could be disciplined for making misleading statements on matters of public import, I wonder how many politicians (many of whom are lawyers) would be subject to disciplinary proceedings under this understanding of Rule 8.4(c)?

That said, I still agree (as I did in my post from a few years ago) that this is a problem and that the ethics rules are useful by analogy. I think, though, that the solution is better ABA/AALS standards rather than lawyer discipline. Ben's article addresses those standards as well, and I think that's probably the better focus of attention.

[John Steele]

Just to follow up on Andy's post, we have indeed been tracking this issue of law schools cooking the books and juking the stats since at least 2005.

http://legalethicsforum.typepad.com/blog/2005/04/andrew_perlman__1.html

http://legalethicsforum.typepad.com/blog/2008/08/law-schools-and.html

http://www.legalethicsforum.com/blog/2010/02/law-review-circulation-numbers-cooking-the-books-and-legal-ethics.html

http://www.legalethicsforum.com/blog/2005/03/ethics_is_law_s.html

http://www.legalethicsforum.com/blog/2010/05/did-16-law-schools-commit-malpractice-spirit-vs-formalism-cooking-the-books-as-teaching-ethics.html

http://legalethicsforum.typepad.com/blog/2008/06/truly-truly-it.html ("I am scandalized by the lack of information, and misleading information, flowing from law schools to applicants and students. It's not fair and it's sometimes a consumer fraud issue. And, when we see law students become lawyers who are enmeshed in scandals that involve "cooking the books," we might well ask, "where in the world did law students get the idea that responsible grown-ups are supposed to play with the numbers like that?")

http://www.legalethicsforum.com/blog/2011/12/top-ten-legal-ethics-stories-of-2011.html

http://www.legalethicsforum.com/blog/2012/10/law-school-falsified-jobs-data-ex-employee-of-thomas-jefferson-law-school-says.html

http://www.legalethicsforum.com/blog/2011/11/aba-committee-readies-law-school-placement-salary-questionnaire.html

[Publica]

There have been a handful of cases of false reporting of undergraduate admission data as well, and Ben Trachtenberg's reasoning would seem to apply there as well to the extent school officials are lawyers. For example, Jonathan Turley describes a false reporting case which unfolded just a few weeks ago at George Washington University. According to Turley: "Worse yet, [Bob] Morse [of U.S. News] believes that we may have been misreporting for over a decade. There is no reported comment from our prior GWU President Stephen Trachtenberg, {Esq.]"

http://jonathanturley.org/2012/11/15/gw-stripped-of-ranking-and-placed-in-unranked-category-by-u-s-news-world-report/

There have been similar issues at Emory and Santa Clara.

[Publica]

Correction to my previous post -- it was Claremont McKenna, rather than Santa Clara, which had a similar incident to that at GWU. Professor Trachtenberg does address the Claremont McKenna incident on page 8, fn. 33, even to the point of indicating that "Had [President] Gann been involved personally, she might have been subject to professional discipline because she—a former law dean at Duke—is a lawyer licensed to practice in North Carolina." It seems President Trachtenberg is identically situated to President Gann -- but it seems inappropriate for the younger Trachtenberg to omit mention of his Father and GWU's incident altogether in the article while trying to draw a roadmap for anyone who wants to file a complaint against President Gann.

I know, Professor Trachtenberg will protest that he did not actually SAY that President Gann was involved, but only presented a hypothetical IF she was involved, of which he appears to have no evidence. In doing so, Professor Trachtenberg may be making a literally true, but misleading statement in his article.

The basic problem with the article is that it is trying to call out a lot of individuals and competitor schools under the guise of a scholarly article, assuming a lot of allegations to be true using real names and situations, without actual proof, then proposes a mostly retroactive remedy, which presumably would be applied against those individuals and competitor schools. This looks like a personal vendetta and a misuse of the law review process.