WSJournal. Blog. Law School Advertising Violates Legal Ethics

http://blogs.wsj.com/law/2012/12/27/professor...;mg=id-wsj

Jobless and underemployed law graduates have filed more than a dozen lawsuits this year against their alma maters, alleging consumer fraud. (None has succeeded, so far.) Some academics have suggested a fate worse than civil liability for law deans whose schools advertised misleading statistics about recent graduates’ employment rates.

And now a law professor in Missouri is drawing attention to potential ethical violations that he says could lead to disciplinary action against school officials who are licensed to practice law.

In a new paper , Ben Trachtenberg of the University of Missouri School of Law enumerates several alleged law school sins with which readers of this blog, by now, are familiar: reporting salary statistics based on unrepresentative samples of graduates; claiming a high percentage of graduates are employed, without specifying whether their jobs are part-time or full-time or whether the jobs require a law degree; under-reporting student debt.

Such practices could violate Rule 8.4(c) of the American Bar Association Model Rules of Professional Conduct, which prohibits lawyers from engaging in “dishonesty, fraud, deceit, and misrepresentation,” according to Professor Trachtenberg. The model rules inform ethics codes adopted by the states.

Law school officials have argued they followed the rules imposed by the ABA, and courts in Illinois, Michigan and New York have jettisoned lawsuits accusing schools of manipulating their stats. In a recent case, a judge described New York Law School advertising materials as “unquestionably incomplete” but said they weren’t “false or misleading.”

In his paper, Professor Trachtenberg argues, however, that there is ”little doubt that dishonest law school marketing conducted by members of the bar justifies professional discipline.”

He writes,

In cases of technically accurate yet misleading law school marketing, the question is whether the lawyers involved exhibited either an intent to mislead or, in certain states, recklessness such that discipline is appropriate. As knowledge of the highly misleading nature of commonly used statistics becomes more widely known in the legal academy, findings of intent and recklessness should become increasingly easd to reach.

He told Law Blog the paper was less a call to arms than “a warning for people who are in this business.”

Professor Trachtenberg is weighing whether to approach bar counsel — the lawyers who police their own in each state — for advisory opinions on whether “common stuff that seems to happen at a lot of law schools” meets ethical standards, he said.

“I think if bar counsel says ‘No,’ it could be a good wake up call,” he said.