Do We Need a Code of Ethical Conduct for the Academy?

Having taught government ethics for years (no comments necessary, I've heard them all), written about the subject, and even co-chaired a state bar task force on the same, I can’t help but keeping coming back to the article in the National Law Journal this past week about the “scandals” or questionable alleged behavior by members of the Academy. I couldn’t agree more with Prof. Deborah Rhode who talked about a climate of integrity on campus. I am careful to tell my students and those who attend government ethics CLE programs that vast majority of government officials are honest hard-working individuals and the same as can be said of my colleagues in the Academy. The very few who stray create an appearance of lack of integrity for everyone else.

The National Law Journal article focuses on the conduct of members of the Academy both inside and outside of the classroom or work environment. The take-away message we need to remember is that professors and administrators are people held to a higher ethical and moral standard because of the position of trust we have with our students and with the various constituencies we represent and steward on behalf of our schools. Just like government officials, K-12 classroom teachers and members of the clergy, our behaviors are subject to far greater scrutiny than the average member of the public. This stems both from our position as lawyers and from our position in the Academy. Despite the fact that the vast majority of us are people of integrity who do not misuse the position of trust, who conduct ourselves in accordance with the highest expectations of members of the bar (just think about what needs to be disclosed to state bar character and fitness committees), what must we do to counter the negative messaging from these hopefully “isolated” incidents?

When the heat is turned up on public officials, legislators and governors respond (with the support of the good government groups) with committees, hearings, and proposed legislative and regulatory reforms. Do we really need to go down this route? Do we need a formal code of professionalism? Membership in the AALS already requires in part that, “A member school shall attract and maintain a faculty of high competence…to provide ready professional relationships among the faculty and between the faculty and the students…” (see,By-Law Section 6.4) The AAUP Statement of Professional Ethics notes that professors should,”…avoid exploitation, harassment…of students.” Perhaps Chapter 4 of the Standards on Legal Education should be amended to include language about the expectations of professionalism on the part of the faculty when it comes to our students and the community.

Have we reached a tipping point with this NLJ article that demands conversations at the AALS, the ABA Section on Legal Education and AAUP? Do we need to spell out community norms beyond the obvious illegal nature of the alleged activities? Do we need a formal ethical code of conduct for the Academy that goes beyond the provisions cited above and transcends codes and rules adopted at individual campuses? How can we restore confidence in our integrity where the lapses of a small few cloud the environment for everyone else?

Comments

[Jim Milles]

Almost all law professors are lawyers and should be subject to the applicable state rules of professional conduct.

[Orin Kerr]

Jim, you raise an interesting question: How many law profs have an active bar membership? I'm really not sure of the answer.

[Jeffrey Malkan]

Jim, Your school is SUNY Buffalo, so I'll comment in reference to that institution.

1. The Rules of Professional Conduct in New York apply to attorney-client relationships and the obligations of attorneys to the court. They are intended as a framework for the ethical practice of law. They do not apply as binding rules outside that capacity and context, certainly not to dishonesty, harassment, or embezzlement by members of a law school faculty in their duties as an educator or administrator. If a faculty member is not a member of the New York bar, the Committee on Character and Fitness of the Appellate Division has no jurisdiction over law school faculty at all.

2. SUNY Buffalo has a Faculty Code of Conduct for the entire University, but no one in the Law School even seems to know about it, much less adhere to it.

http://www.buffalo.edu/content/dam/www/provost/files/FacultyAffairs/pdf_codeOfConductWeb.pdf

There is a sexual harassment policy and procedure in the Faculty-Staff Handbook, at sec. IV.B. After an adverse finding of fact, any disciplinary action against the faculty member is at the discretion of the administrator of that unit (the Dean).

http://www.business.buffalo.edu/UbbContent/Hrs/facultyhandbook/IV.htm#H

There is a state code of ethics that applies to SUNY faculty and requires disclosure of outside income for faculty members who earn more than $55,000 base salary.

3. The Law School has a Student Honor Code, but the faculty does not by inference apply those principles and rules to itself. The Student Honor Code requires, among other things, that students report violations of the Code by other students. The Honor Code has a due process enforcement mechanism and sanctions that include disqualification for the bar examination. Faculty members, especially after they have been granted tenure, seem to be constrained by nothing except their own personal moral and ethical beliefs, which can be quite flexible and idiosyncratic.

4. The Law School has a Grievance Committee for faculty members to complain about violations of the Faculty Bylaws by other faculty members, but the Dean can block that process without any explanation or appeal and refuse to allow the Grievance Committee to issue a recommendation to the faculty. There are further appeal procedures from the Law School faculty to the Executive Committee of the University Faculty Senate, but, if the Law School faculty has been unwilling or unable to make an initial recommendation, there will be nothing to appeal.

5. The SUNY-UUP Collective Bargaining Agreement has a grievance procedure, but it is only applicable to provisions of the CBA itself and cannot even address those CBA provisions if the grievance requires interpretation of any other University policy or procedure.

So, in summary, there is nothing to discipline a faculty member at SUNY Buffalo, much less the Dean, for unprofessional conduct within the Law School, unless the faculty member or Dean violates state or federal law, in which case the plaintiff at his or her own risk and expense must have recourse to the judicial process. Since faculty members and administrators are covered by Public Officers Law sec. 19, they are in most cases defended and indemnified at the state's expense until there is a judicial finding of intentional misconduct. If the case is settled prior to a final judgment, the expense is borne by the Law School, not by the faculty member.

I think Dean Salkin's and Professor Rhode's concerns about faculty integrity are certainly warranted and should be addressed. The problem is wider than the National Law Journal article indicates, and includes dishonesty in word and deed, incivility and defamation, as well as lack of transparency about the dispersal of funds from the Law School's endowment to favored faculty members and administrators.

[Derek Tokaz]

Relevant Simpsons reference:

Bart: I just think our veterans deserve a little recognition.
Lisa: That's what Veterans Day is for, Bart.
Bart: But is that really enough to honor our brave soldiers?
Lisa: They also have Memorial Day!
Bart: Oh, Lisa, maybe you're right, maybe you're wrong, the important thing is that veterans deserve a day to honor them!
Lisa: They have two!
Bart: Well, maybe they should have three.

You've got the AAUP statement. You've got your school's code of conduct. You may, in addition, have a third party sexual harassment training program that a lot of schools have been buying. And when it comes to prostitution, you've got the criminal code. And on top of all that, there are the general standards of ethics and decency that govern society. So, is another code of conduct really going to make much difference? I think not.

If you've read Dan Ariely's The Honest Truth About Dishonesty, you'd know that what's really important is reminders of how we're supposed to act. What's great is that reminders work even in the absence of enforceable rules, and they don't even have to be directly on point (thinking about the Ten Commandments gets kids to cheat less on tests, for instance).

Do law professors regularly have professional training? And I don't mean on the substantive law. I mean on pedagogy. For instance, the program I'm in had a 2 hour grade norming workshop this past Saturday morning (yeup ...working on aSaturday morning, and I haven't even been paid yet this semester, wth?). This is just anecdotal, but I suspect talking about grading principles probably also had a positive effect on things like class preparation and creating better assignments, and just professionalism generally.

[public interest lawyer]

I think Dean Salkin's and Professor Rhode's concerns are well-taken.

I'm basing the following comment on what I know about rules and procedures in place at the law school of a major state university. (I'll refer to it as U.)

There is very little infrastructure to maintain faculty discipline at U. for unprofessional conduct within the Law School. In addition to sexual misconduct(the focus of the National Law Journal article), a complete view of the problem would include dishonesty in word and deed, incivility and defamation, as well as breaches of fiduciary duty.

1. The Rules of Professional Conduct in our state apply to attorney-client relationships and the obligations of attorneys to the court. They are intended as a framework for the ethical practice of law. As far as I know, they do not apply to dishonesty or misconduct by members of a law school faculty in their capacities as educators or administrators. If a faculty member is not a member of the Bar, the disciplinary authorities in the state judiciary have no jurisdiction at all.

2. U. has a Faculty Code of Conduct for the entire University, but no one in the Law School seems to know about it. (I was never given a copy and never heard anyone mention it.) It is not referenced in the Faculty Bylaws or linked on the Law School website. A complaint to the Provost would go back to the Dean who may be complicit in the violation or have other priorities.

3. The state code of ethics applies to U. faculty and requires disclosure of outside income for faculty members who earn more than $55,000 base salary. That is basically a formality for conflict of interest purposes in state government.

4. There is a University-wide sexual harassment policy and procedure in the Faculty-Staff Handbook. The flaw is that, after an adverse finding of fact, any disciplinary action against the faculty member is at the discretion of the administrator of that unit (i.e., the Dean). It also assumes that the complainant is willing to go through the process. (Most students don't know that there is a Faculty-Staff Handbook. It sounds like a guide to local dining options and on-campus parking.)

5. The Law School has a Student Honor Code. The Student Honor Code requires, among other things, that students report violations of the Code by other students. Faculty members have never applied that obligation to themselves, as far as I know, probably in deference to collegiality. Faculty members, before they receive tenure, are under risk of termination for misconduct as well as poor job performance, but after tenure, termination for cause is unlikely. The Faculty Bylaws don't provide a procedure for revocation of tenure. I don't know of any case of a tenured faculty member at U. being terminated for cause through any open procedure. (It's possible that these matters would resolved through some type of plea bargaining with the administration, especially if law enforcement is involved.)

6. The Law School has a Grievance Committee for faculty members to complain about violations of the Faculty Bylaws by other faculty members, but the Dean can block that process by refusing to allow the Grievance Committee to attempt to "adjust" the grievance or to go on the agenda of a faculty meeting to issue a recommendation. There are further appeal procedures from the Law School faculty to the Executive Committee of the University Faculty Senate, but, if the Law School faculty has been unable to make an initial recommendation, there will be nothing to appeal.

7. The Collective Bargaining Agreement (this is a unionized faculty) has a grievance procedure, but it is only applicable to provisions of the CBA itself and cannot even address those CBA provisions if the grievance requires interpretation of any other University policy or procedure.

8. If a faculty member or the Dean violates state or federal law, the plaintiff at his or her own risk and expense may have recourse to the judicial process (with all of the doctrinal hurdles of pre- vs. post-deprivation due process and qualified immunity). Since faculty members and administrators are state officials, in most cases they are defended and indemnified at the state's expense until there is a judicial finding of intentional misconduct. If the case is settled prior to a final judgment, the expense is borne by the Law School, not by the faculty member.

The question I would ask is whether these options are sufficient to protect the integrity of a law school faculty at a time when legal education, for many reasons, has come under increased scrutiny.