Law professor Ben Trachtenberg has caused a stir by suggesting in a law review article for the University of Missouri Law School Journal that law school administrators responsible for intentional and egregious misrepresentations in advertising for their schools have violated the professional ethics codes and could, and should, face discipline, such as disbarment.
I don’t want to cause Nando a fatal cognitive dissonance attack, really I don’t, but I agree with the professor wholeheartedly. I have long believed that the Model Rules prohibition of dishonesty in Rule 8.4 should be applied to lawyer conduct not related to the practice of law more frequently and stringently than it is. Lawyers, for their own protection, are fond of the fictional Clinton myth that one can be an upright and trustworthy lawyer while displaying deceitful and dishonest conduct in their “personal lives,” as if lawyers are ethically schizophrenic. The proof: John Edwards still has his license.
The law school deans that Trachtenberg targets, however, don’t get the benefit of this pass. They are lawyers who were dishonest in their professional duties that, while not requiring a law license, have a clear impact on the legal profession. Trachtenberg writes,
“In light of the common application of Rule 8.4(c) to lawyers who engage in dishonesty unconnected with the practice of law, there is little doubt that dishonest law school marketing conducted by members of the bar justifies professional discipline. Paul Pless lied repeatedly, over a period of years, about the quality of incoming students at the University of Illinois College of Law, deceiving the ABA and U.S. News, along with prospective students and others who relied on statistics they compiled.191 Mark Sargent conspired with colleagues to engage in similar conduct at Villanova.192 Can anyone dispute that these men engaged in “conduct involving dishonesty, fraud, deceit or misrepresentation”? Surely serial dishonesty—committed with the purpose of gaming the rankings used by prospective students deciding whether and where to spend tens (if not hundreds) of thousands of dollars—is at least as serious a violation as falsifying a resume and transcript.”
Sure it is. As with Edwards, however, the profession is unlikely to be willing to expand the range of activities by lawyers outside of actual practice that will trigger discipline.
When I worked for a large national trial lawyers’ association, I handled the development and operation of its various profit centers related to membership services. This required mailing information to members, so I often acquired the association’s membership mailing list. The number of members on the list was more than 20% less than the membership number the association advertised and claimed in its public statements. That number was, in fact, a lie, though most members and most of the staff never knew it. Membership had fallen in recent years, and since a trade association’s perceived influence and power is directly related to its number of members, the association’s membership staff and executive director, with the approval of key association leadership, kept putting off an update. Once I discovered the discrepancy, I went to the association general counsel about this, which I felt was unethical and unconscionable conduct for an organization run by and representing lawyers. His responses were:
- “Everybody does it.” (True, most associations over-state their memberships. But, I pointed out, lawyers hold themselves to higher standards of trustworthiness. And “Everybody does it” is just a rationalization.
- “We’ll fix it soon.” (The number the association claims today is lower, but I’ll bet you it’s still inflated.)
- “It would be a blow to our ability to meet our mission and protect plaintiffs’ rights if our membership suddenly dropped 20%.” (Well, our membership HAD dropped 20%. This was, in effect, “the ends justifies the means.”)
- “Butt out.”
If law deans are held to have violated professional ethics standards for misleading law students, why wouldn’t the lawyer leadership of legal associations be just as culpable and deserving of discipline for lying to potential members, the press and the elected representatives they lobby regarding their membership size? The next step would be to hold corporate council responsible for overseeing intentionally misleading advertising by corporations, and lawyer-politicians susceptible to professional discipline for telling whoppers on “Meet the Press.” I would support all of these, by the way. Lawyers shouldn’t lie, and the more vigorously the profession promotes this standard, the more trustworthy the profession will be.
John Edwards still is regarded as a lawyer in good standing, however. Prof. Trachtenberg is right, but I will be surprised if the profession is willing to extend its enforcement of professional discipline for dishonesty, misrepresentation, fraud and deceit that far.
I hope I’m wrong.
Pointer: Legal Ethics Forum