A Law-School Lesson, Learned the Hard Way

Michael Morgenstern for The Chronicle

January 14, 2013

As 2012 drew to a close, the movement to hold law schools accountable for misleading marketing suffered another setback. The Appellate Division of New York's Supreme Court upheld a trial court's decision dismissing a lawsuit against New York Law School. Graduates of the law school had accused it of issuing alumni-employment statistics that painted an unreasonably optimistic picture of their job prospects after graduation.

Judge Melvin Schweitzer had dismissed the case in March, holding that even if the statistics published by the law school were bunk, "plaintiffs could not have reasonably relied on NYLS's alleged misrepresentations ... because they had ample information from additional sources and thus the opportunity to discover the then-existing employment prospects ... through the exercise of reasonable due diligence." In other words, no reasonable person would have relied on the school's statistics, and so unhappy law graduates cannot win satisfaction under consumer-protection laws.

The Appellate Division did agree with the plaintiffs that "there is no question that the type of employment information published by [NYLS and other law schools] during the relevant period likely left some consumers with an incomplete, if not false, impression of the schools' job placement success."

The court noted that the marketing materials allowed unwary consumers to believe that "employed" recent graduates held full-time positions, while in reality the advertised number of "employed" graduates included not only those doing part-time legal work, but also those not working as lawyers at all—waiters and babysitters, for example. It criticized the law school's "statistical gamesmanship," observing that the American Bar Association had recently "repudiated" such trickery, which for years has been common practice in legal academe.

Nonetheless, despite being "troubled by the unquestionably less than candid and incomplete nature" of New York Law School's advertisements, the Appellate Division upheld the dismissal, saying the misleading marketing was not the sort of deceptive practice that violates the state's General Business Law or the common-law prohibition on fraud.

In short, two courts found that New York Law School had published marketing materials that sensible prospective law students should not trust, and concluded that graduates who had been misled have no legal remedy. Similar cases against law schools have been dismissed in Illinois and Michigan. Others are pending.

My own research has revealed comparable misleading marketing by law schools nationwide, with schools obscuring who counts as "employed" as well as how many employed graduates are in jobs paid for by law schools themselves. Schools also publish salary data based on skewed samples of highly paid graduates. Other researchers have documented cases in which law schools issued misleading scholarship offers, concealing the lesser likelihood of students' continuing to qualify for their awards beyond the first year.

For example, when collecting data for the National Association for Law Placement—which produces the best-known salary statistics for recent graduates—law schools exclude those in part-time jobs. In addition, the survey sample is not random; the association acknowledges that higher-paid graduates are more likely to respond. The problem is then exacerbated because the association encourages law schools to use public information (such as social media and law-firm Web sites) to determine the salaries of nonresponding graduates, and salary data are more commonly public at the largest law firms, which tend to pay the top salaries.

Despite those flaws, which make attending law school look more financially attractive than it otherwise might, law schools commonly report the "average" salaries of their graduates without any useful disclaimers concerning the upward skew.

Law schools may protest that their salary numbers are collected according to industry standards. But so what if they are? If a school knows that the salary numbers reported by the National Association for Law Placement skew upward, it misleads prospective students by presenting an "average" or "median" or "75th percentile" salary absent an explanation of why the number should not be trusted.

As for scholarships, law schools have awarded merit aid contingent on academic performance—not itself necessarily objectionable—without explaining how forced grading curves may make it impossible for many students to retain awards. An admitted student might be told something like, "You need a first-year GPA of x to keep your scholarship," without being told that (1) only 30 percent of the class can attain such a GPA; and (2) more than half of her classmates have the same deal.

So where do we go from here? In addition to rules recently enacted by the American Bar Association to curb the sharp practices described above, there is, perhaps, one hint of a silver lining for reform advocates in the Appellate Division's opinion. Despite letting a law school get away with bad behavior, the court asserted that "the practice of law is a noble profession that takes pride in its high ethical standards," and that "to join and continue to enjoy the privilege of being an active member of the legal profession, every prospective and active member of the profession is called upon to demonstrate candor and honesty."

The rules of legal ethics prohibit lawyers from engaging in misrepresentation, dishonesty, and deceit, and the prohibition extends beyond the practice of law. Indeed, lawyers have been disciplined for filing false police reports, forging law-school transcripts and recommendation letters, and committing academic plagiarism. It is high time for state bar officials to safeguard prospective students from dishonest pitches by law schools.

I have not found any disciplinary cases related to misleading law-school marketing. But that could change overnight if a single state bar took action—perhaps prompted by complaints from former students, who know all about the marketing tactics. Case law concerning other forms of deceit by lawyers makes clear that at least some law-school administrators have exposed themselves to discipline.

In addition, bar organizations can issue advisory opinions on ethical issues. A notice that certain "business as usual" marketing techniques are considered dishonest by the state bar would prompt quick corrective action by law schools, which commonly include licensed lawyers among their leadership.

The appeals court's opinion stated that law schools "have at least an ethical obligation of absolute candor to their prospective students."

If law schools cannot clean up their act, disciplinary authorities may begin proceedings against their administrators. Misleading marketing has no place in legal academe, and there is no excuse for further delays.

Ben Trachtenberg is an associate professor of law at the University of Missouri at Columbia.