Why We Cannot Expect Change from the ABA

Brian Tamanaha

The National Law Journal is sponsoring a discussion on legal academia. In this post I critically respond to a post by the Chair of the ABA Section on Legal Education:

As Dean O'Brien writes, the ABA is currently considering a series of changes to how law schools report employment information for recent graduates. Unfortunately, his statement of the problem raises doubts about this effort:

Though the number of institutions that fail to report employment data accurately is small, their actions hurt the credibility of our entire industry. For that reason, the ABA Section on Legal Education and Admissions to the Bar (of which I am the current chair) has taken a fairly aggressive stance on addressing this issue, with job placement information now being reported directly to the ABA. This will have positive impacts; the quality of the information will be better and the specificity of the data will increase.

The credibility of legal academia as a whole has suffered not owing to the bad conduct of a few law schools but because it has been widespread and systematic. The problem is not that the information is inaccurate (though that is also a problem) but because it is stated in misleading ways.

Let me offer an example. South Texas College of Law lists in the current US News profile its earnings quartiles for full-time private sector jobs as follows: $75,000 (25th percentile), $92,500 (median), $160,000 (75th percentile). That looks great. However, only 5 percent of the people employed in the private sector provided salary information. What this means is that those numbers represent 18 graduates (at most) out of a class of 376.

These numbers are "accurate" in the sense meant by Dean O'Brien, but there is a problem nonetheless. Many law schools report salary numbers in problematic ways, including elite law schools, as I detail in this post.

The same kind of accurate but misleading information exists for the employment percentages reported by law schools. As this article describes, law schools across the board have been advertising 90% to 100% employment rates in the past decade using all sorts of dubious methods. Just about all of this was "accurate." Meanwhile, as elaborated here and here, the true underlying picture is that as many as a third or more of law graduates during this period did not land jobs as lawyers.

Rule 7.1 of the ABA Model Rules of Professional Conduct specifies that "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." A Comment adds, "Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading." A strong argument can be made that the salaries and employment rates law schools advertise fail this standard (setting aside whether it applies to law schools).

To my knowledge, the currently proposed reforms do not solve the misleading (though accurate) salary reporting problem, and the employment data for 2010 is less transparent (the ABA intentionally did not ask what percentage of the class obtained jobs as lawyers, nor what percentage of these jobs are part-time). The reforms for 2011 will be an improvement, but if the data is reported in a manner that confuses prospective students (flooding them with details in a way that hides what is essential), the potential for misleading them will remain.

Genuine reform will not come until the ABA Section on Legal Education stops operating to protect law schools and instead serves a genuine regulatory function.

Brian Z. Tamanaha
Posted 7:47 PM by Brian Tamanaha [link]