A couple of years ago, I posted my thoughts about the misleading nature of some law school promotional materials. As John noted in his post, the Wall Street Journal ran a story this morning that makes a very similar point. In light of the buzz that the WSJ story has generated, I thought that I would re-post my thoughts. I would urge people to take a look at the rather lenghty comments that appeared after my original post before leaving a comment here:
As you know, Model Rule 7.1 prohibits lawyers from advertising in a way that could be misleading to potential clients. What has troubled me is that so many law schools distribute promotional materials that would probably violate Rule 7.1, if that rule applied in the context of legal education.
Consider some examples. One law school’s promotional literature cites a report showing that its graduates claim to have among the best job prospects in the country, when in fact the law school’s own employment data doesn’t support the claim. Many law schools frequently talk about the quality of their clinical programs, not mentioning that their clinical programs are typically not big enough to accommodate all students who express an interest. Schools also brag about how their graduates take all sorts of interesting public sector jobs, when the reality is that many graduates won’t be able to afford those jobs given the crushing debt that they will have. The list goes on and on.
Currently, none of these claims are considered to be unethical or impermissible, although many of them would probably violate 7.1 if it applied. So I wonder why law schools are treated differently than lawyers for purposes of advertising? Indeed, many of the same rationales for lawyer advertising restrictions would also apply to law school promotional literature. First, just like someone who hires a lawyer, the prospective law student has a lot at stake. The student is about to invest three or more years and more than $100,000 (at many schools) to attend. Shouldn’t the promotional material avoid being misleading in any way?
Second, some information is hard to verify, just as it is for lawyers. Claims about job opportunities and clinical programs can be researched, but there is a lot of information that is typically hard to uncover for the average applicant without a good deal of homework.
Aside from any analogies to lawyer advertising, shouldn’t law schools simply be setting an example for lawyers about truthfulness in advertising? If we are trying to teach our students about ethics, aren’t we starting that instruction rather awkwardly if we engage in conduct that would be considered unethical if our graduates engaged in it? And in an era of concerns about the role of misleading lawyer conduct in various recent scandals, shouldn’t we be particularly sensitive to being misleading in our own promotional materials?
Law schools and law professors typically don’t have an incentive to take the lead on these issues. Indeed, no school wants to be the first one to eliminate spin from their promotional literature. Doing so would put that school at a competitive disadvantage, especially given the importance of admission data in various law school rankings. The solution (if there is to be one) would likely have to be in the form of an ABA or AALS regulation that more closely resembles 7.1 than is currently the case in regulations such as ABA Standard 509.
To be honest, I’m not a big fan of the restrictions on lawyer advertising for a number of reasons. (I set out some of my thoughts in this article.) But if we have them, there’s certainly a bit of hypocrisy if we (as legal educators) fail to follow them ourselves.