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March 19, 2006

Sunday Sermon: Teaching Integrity

What makes lawyers behave badly? And how can we teach them to do better right from the start?

These questions spring from the big legal news of the last week (besides the little fact that our representatives in Congress seem to think the president is above the law)— the prosecutorial misconduct in the sentencing phase of the Moussaui trial. While countless others have already made many interesting points about this attorney misconduct (see, e.g., Concurring Opinions here and here, OrinKerr.com, and Scoplaw), I want to raise it now in connection with the fact that the faculty at GW law are convinced their students are completely untrustworthy cheaters. I believe this sort of law school faculty attitude helps produce attorneys who act unethically.

You see, at GW law you must take your exams when they are scheduled; there are no exceptions of which I'm aware. Therefore, when you pick your class schedule, you must also check to see that none of the corresponding exams will overlap or conflict w/one another. This sometimes means students cannot take the classes they would like to take merely because the exam schedule doesn't work. Therefore, students recently proposed more flexibility in taking exams so that not everyone in the class would have to take the exam at the same time. Professors said (and I'm paraphrasing) “no way; then our students would cheat!”

Students at GW (and any other law school where the faculty act in similar fashion) are getting the message loud and clear, and that message is: I'm expected to cheat. If students then do, in fact, cheat, they are only fulfilling the expectations set for them by their professors.

So we have law students learning that they are expected to behave unethically and break the rules whenever they can get away with it. Is it any wonder we have attorneys like Carla J. Martin, the rule-breaking and unethical lawyer in the Moussaui case? She was just living up to her profession's (and society's) expectations of her as a lawyer—expectations she probably learned well in a law school that didn't trust her.

(As an aside: Putting the President above the law does relate to questions of professional ethics. If our elected leaders don't have to follow the law, why should any of the rest of us (professionals or not) have to follow it either? And if laws are made to be broken, how much more fungible are rules of ethical conduct?)

In the February '06 edition of Student Lawyer Magazine, Professor Lori Shaw addressed similar questions about exam policies; she asked whether cheating really is a problem in law school, and if so, what should be done about it. (The article is not available online.) Professor Shaw is conducting an online survey to collect responses to these questions—I'm sure she'd love it if you took a minute to complete the survey.

The questions Professor Shaw raises are good ones and I look forward to hearing what she learns from her survey. But even without knowing those results, I have little doubt that policies like GW's exam policy are sending exactly the wrong message to law students who are learning to become members of a profession that is supposedly self-regulating.

Hence, the sermon: Law students need to learn from day one that they have an extremely serious obligation to behave ethically and to report ethical breaches (cheating) by their peers. This is vital because they must regulate themselves and each other while in practice. No one likes to tell on their friends, but so long as the legal profession continues to maintain that that's the best way to regulate legal services (a dubious position, to be sure), law students and lawyers are going to have to do exactly that. It takes work to get people to actually become the ethical actors and tattletales that a self-regulating profession requires them to be; that work needs to begin in law school.

(Read on for a couple of the questions from Professor Shaw's survey and my responses to them.)

17. Who within the law school should be responsible for identifying cheaters? Law students often find themselves extremely uncomfortable in the role of accuser, but most law school honor codes place the responsibility for reporting wrongdoing squarely on students. Is that where it belongs?

Students should have the responsibility to not cheat in the first place and to report cheating if they see it or learn of it. If this is going to remain a self-regulating profession, that needs to begin in law school. If you teach students that you don't trust their integrity, you'll teach them to have none. Currently my law school teaches exactly this, which is why I'm not surprised to hear about lawyers behaving badly. Of course, it goes both ways. Law students see that in practice they will generally have to be *seriously* unethical to suffer any serious sanctions, so that may also teach them that breaking the rules a little here and there is no big deal and is expected and accepted by the profession.


19. What is the proper punishment for a law student found to have cheated on exam? What should happen to cheaters?

They should get an F in the course but also a letter that will be forwarded to all the state bar where that student applies for membership upon graduation. The letter should also remain in their professional file permanently.


20. In recent years, many universities have taken the position that the undergraduate years are a time of growth and that even a student's serious error in judgment should be viewed as creating a learning opportunity. Should the same standard apply in law schools, or should expulsion be the rule? Has the time for “living and learning” experiences passed, or is youth still a viable defense? What type of punishment fits this crime? Should we be seeking to rehabilitate, to deter, to punish, to denounce, to incapacitate, or some combination of the foregoing? Should law schools adopt a zero-tolerance policy?

Law school is a learning experience, so no, the punishment for cheating should not be so permanent as expulsion. The goals should be deterence, punishment, and rehabilitation. That's why I think the appropriate punishment is to fail the course and have a letter sent to the bar association in the state where the student applies for admission to practice. This is a serious penalty, but it should not destroy the person's legal career. (Of course, that's assuming the state bar association does not decide to refuse admission to anyone with such a letter. But again, there's no reason for them to be so draconian. Instead, state bars should take such letters as a warning that they need to look over this application more carefully and look at all other factors of the applicant. But mostly the letter should just remain in the student/lawyer's professional file for the rest of his/her life as a reminder and added incentive to follow the rules as a professional.)


22. If cheating is a real problem or is perceived as a problem, how should law students and law schools address that problem? Are there ways to change the culture?

I don't really think it's that big a problem. But regardless of the size of the problem, law schools should teach ethical behavior and put the responsibility on students to meet high expectations. If there's a problem w/bad ethical behavior in the legal profession, part of the reason for that has to be that students learn that they are expected to behave badly (see answer 17 above). We can start changing that by setting higher expectations and showing law students how a self-regulating profession is supposed to work.

(As an aside: If cheating is a problem in the legal profession I also think you can attribute much of it to the rise of law and economics and its cost/benefit analyses that encourage any sort of behavior so long as the benefits outweigh the costs. If that's true, then penalties for cheating need to be greater -- for both law students and practitioners who act unethically. However, this only makes it more important for law schools to teach students that as professionals they are expected to adhere to very high expectations. Exam policies that rely more on the honor system and less on surveillance and suspicion are one great way to start teaching those lessons.)

Posted March 19, 2006 09:27 AM | 3L law school


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I also do not trust/think GW law students are cheaters. The flexible exam policy puts too much pressure on the honest friends that see some of their other friends who fall behind. It may not even be a direct call for help, but a wink and a nod of pointing where to focus studying. As a GW student I think the even playing field is the only way to go. The chances of being caught are slim, the pressure of good grades in law school is too high, and the benefits of cheating are too high regardless of whether we are learning how to be ethical lawyers at the same time. Professors already have the option of giving take-home and paper finals without changing to a flexible exam policy. Just my 2 cents.

Posted by: Reckless Murder at March 19, 2006 05:29 PM

I think it a bit of an over generalization to state that because law students are expected to cheat, they then in fact cheat. You do remember your first year, and how, as time went on you were able to judge what kind of person your classmates were: the gunner, the silent one, the ones that played computer games, the one that became totally obsessed with class rank and gpa. I dare say that you could spot the people most likely to cheat that first semester. Further, cheating is an epidemic in every level of american education, elementary, high school and undergraduate. It is no wonder that professors believe law students would cheat if given the chance.

Posted by: Jasmine at March 20, 2006 12:35 PM

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