Some University of Oregon law students preparing for exams when the full text of an exam for one of their classes, Administrative Law with Professor John Bonine, inexplicably appeared on a university list-serve. Someone in the registrar’s office had pushed the wrong button.
Oops! Yay? Uhhh…now what?
Oh, Professor Bonine knew what: he thought he saw an opportunity to mint ethical proto-lawyers. As soon as he learned about the snafu, Bonine sent his students orders to delete the test, intoning that they faced a “moment in academic ethics” that would define the rest of their careers.
As he told the blog Above the Law,
“…I told them that they are bound by the honor code of the Law School and University (which they pledge, in writing, to abide by each time they take an exam) and also by the Oregon Rules of Professional Conduct and analogous Codes of Professional Responsibility in other states that are applicable to lawyers, because law students are bound by such codes the minute they set foot in law school. I explained that they can be denied admission to the Bar for engaging in dishonest activity, including failing to delete the exam or failing to tell me whether they read all or part of it….By the way, each member of the class deleted the exam and emptied the computer trash, and disclosed whether they had looked at any part of it or not inadvertently…If I were to send the exam, no longer to be used, there would be no “harm” to my evaluating them. I have withheld it for another reason, namely to help teach professional ethics. Ethics is often taught in one class and it is questionable whether it sinks in through that method.”
Blogger Elie Mystal didn’t buy the professor’s reasoning. She wrote that if she had received the exam,
“…I would have printed it out (lest the mistake be quickly corrected) and I would have used the exam as the basis for any further study of that course. I believe in ethics. I believe in honor. But I do not believe in putting myself at a competitive disadvantage because somebody else screwed up. I’d read the exam and sleep easy that night, with my conscience clear. “
Elie’s wrong. So was the professor.
First, let’s examine the blogger’s ethics. Her reasoning proves that the professor was right about at least one thing: legal ethics hadn’t sunk in, at least for this student. The fact that she strongly suspected other students would cheat—for anyone using a mistakenly revealed exam to prepare for that same exam, whether or not the professor told them to ignore it, would indeed be cheating—is not an ethical justification for doing the same. It is a rationalization.
I once faced an analogous situation in law school. My Constitutional Law professor had the foolish idea of giving a take-home, open-book, self-timed final exam. We were told to set an alarm clock and allow exactly three hours at one sitting to complete his exam, stopping mid-sentence, if necessary, once the alarm rang. I knew, absolutely knew, that many if not most of my classmates would ignore the time limit, but I, good little future ethicist-to-be that I was, took the test exactly as required, running out the clock well before completing the test. Several fellow students, Elie-ites all, told me that they also would have taken the exam fairly if they felt the rest of the class would abide by the rules, but that they had a right to take extra time so as not to be unfairly penalized for being honest. They also opined that I was a naïve moron, which my grade confirmed. It appears that I was the only student in the class who didn’t complete the exam.
Yes, I was placed at a competitive disadvantage by not cheating, just like the baseball players who didn’t use steroids, just like politicians who don’t get campaign fund donations by selling out to lobbyists. Being ethical is sometimes difficult and even painful, but concluding that cheating is acceptable because you suspect others are doing it is taking a leap down the slippery slope to corruption. In that respect Professor Boninewas right about something else: it could be a defining moment.
Mystal argues that there is no duty to the professor the school or the class to ignore the gift exam. Bulletin to Ellie: there is always a duty to be fair and honest, whether you are a student, a lawyer, or a yo-yo competitor. Living is civilized society carries these duties. Is there a written, formal “Code of What To Do When A Law School Exam is Mistakenly Sent to You”? No, but duties arise from the need to have mutual trust, and are defined by tradition and common sense. Mystal, like all law students, knows what exams are supposed to measure, and that getting a bootleg copy of an exam in advance ensures that the exam can no longert fairly measure it. She owes the duty of honesty and fairness to her classmates, her school, her professor, future employers who will see her grade, her future clients, and yes, herself. If she is going to be willing to cheat to get a competitive advantage, then she is likely to become an unethical lawyer. At this point, I’m not optimistic about her prospects.
Professor Bonine, on the other hand, wins no prizes either, although he was superior to my Constitutional Law professor who blithely made it easy for his students to cheat and penalized those who did not. To begin with, he is wrong about law students being “bound” by the Oregon Rules of Professional Conduct. Those Rules are written specifically for lawyers and only lawyers. They are enforced by the bar and the courts, and never against law students. They don’t suspend or disbar law students, because there’s nothing to suspend and disbar them from. True, a law student who engages in disreputable or dishonest conduct may be denied membership in the bar, but that process has nothing to do with the Rules. Indeed, the standards for getting admitted to a state bar are more stringent than the Rules. The professor’s belief that students are “bound by” them is nonsense.
Professor Bonine also implied an invalid parallel between what happened with his exam and the situation where a lawyer inadvertently sends confidential information that could hurt his case to opposing counsel, as in a misdirected e-mail. There is no comparison. For one thing, jurisdictions and courts don’t agree about what a lawyer’s ethical obligation is in such situations. The lawyer has conflicting ethical duties to his or her client and to the justice system. Some states take the position that the receiving lawyer has an obligation to use the information for the benefit of the client. Some states hold that the lawyer must return the material unread, and disqualify himself from the case if he read it by mistake. The ethical obligations of a student seeing a leaked copy of an exam before the test is given, on the other hand, are clear and unquestionable. There are no competing ethical considerations. The student has a duty not to use the exam to cheat. If he or she reads it, and later finds that the same test is being given, the student must tell the professor and hope for the best.
The professor was unfair to play impromptu ethics games with his students while exploiting the school’s mistake. Having the next day’s exam turn up on student’s computer screen isn’t a common occurrence like a lawyer’s receiving a misdirected fax or e-mail from an adversary.The latter situation is the topic of endless seminars, panel discussions and law journal articles, and lawyers are supposed to be prepared for it if and when it happens. I think almost all law students would react to the unexpected appearance of an upcoming exam on their listserv by reading it, and assuming that it wouldn’t be used, unless the professor contacted them with instructions that suggested otherwise, as Bonine did. Any student who believed that Bonine would stick with the same exam was faced with a dilemma similar to the one I faced, the near certainty that other students would take advantage of the situation to the detriment of any student who did not. The ethical choice is clear, but it is still an irresponsible one for an Administrative Law professor to create, knowing how crucial students believe grades are to their future.
Bobine created a false crisis, forcing students to choose between secretly using the test to their benefit because other students would be sure to do so, or revealing that they had read some or all of the test, and perhaps be penalized for it. Then he gave them a different exam anyway. I understand his broader point: in law and in life, you never know when an ethical problem might arise, and you need to be able to sort out the elements and make an ethical decision. But law exams are difficult enough without professors launching ethics challenges in the middle of exam preparation, especially badly thought out ethics challenges. His rationale was faulty, for this wasn’t at all like a typical legal ethics dilemma. His standards were incorrect, for the students are not governed by the legal profession’s Rules of Professional Conduct. His plan was unfair, because law schools are not very successful at teaching ethics, and he was not a legal ethics specialist. Finally, his timing was rotten. The students should have been allowed to study for his Administrative Law ( yechhh!) exam without having to navigate his half-baked ethics hypothetical.
How should Professor Bonine have handled the situation? Honestly and fairly, of course. He should have sent the students the following message:
“Unfortunately for all of us, the exam I was preparing to give you was sent, in error, over the listserv. Please use it as a study aid, or not, as you wish. I will have a different exam ready for you to take. I apologize for the confusion and the disruption this has created in your study schedule.”
Bonine told Elie Mystal that he viewed the situation as “a teachable moment.” What it taught was that he should stick to Administrative Law, and leave teaching legal ethics to others.