The Volokh Conspiracy

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Character and Fitness in the Trap House

One of the most disconcerting elements of the Yale fiasco was the threat to report the student to the bar.

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Eugene and David have blogged about a recent fiasco at Yale Law School. Here, I will focus on one of the most disconcerting elements of the incident. An administrator told the student:

"You're a law student, and there's a bar you have to take. So we think it's really important to give you a 360 view."

The implication here was not too subtle: apologize, or we will report you to the Character & Fitness committee of the bar.

Later, the administrator insisted that the Yale would not make a referral to the bar:

"We would never get on our letterhead and write anything to the bar about you. You may have been confused."

Uh-huh. Confused. After the Washington Free Beacon story, Yale issued a statement:

"At no time was any disciplinary investigation launched or disciplinary action taken in this matter. While any person may report concerns about a lawyers' character and fitness to the bar, the law school has a longstanding policy of reporting only formal disciplinary action to the Bar Association."

I admire the student here who refused to cave to the school's demands, even in the face of a character and fitness referral. But not all students may be able to exhibit such fortitude. Indeed, in most cases, there is no need to follow through on the threat. Merely hinting at the possibility of a referral will be enough to force a student to self-flagellate.

What can be done here?

First, the administrator's position seems akin to extortion: the school would get its way through the threat of making a complaint, especially where that threat would never actually be followed through. Indeed, it may even be unethical for administrators who are members of the bar to use the threat of a bar referral to induce a law student to abjure his constitutional rights. These administrators may themselves be subject to disciplinary proceedings!

Second, it may be necessary to seek advisory opinions from state supreme courts and disciplinary committees about whether character & fitness referrals are appropriate for protected speech. Speech protected by the First Amendment should not be the basis for excluding someone from the bar. But if some bureaucrat decides that discipline is warranted, then the bar should be sued.

Third, Yale and other schools should formally instruct their administrators not to dangle the threat of a bar referral as a way to force students to self-cancel. A character and fitness referral should only be entertained after the full disciplinary process is completed. This arrow should be permanently removed from the associate dean quiver.

Finally, this incident illustrates why ABA Model Rule 8.4(g) should be fought even more vigorously. Generally, law students are subject to the same sorts of rules attorneys are subject to. The bar should not be weaponized to punish the freedom of speech.

If students at other schools have been subjected to a character-and-fitness extortion, please email me.

NEXT: Qualified Immunity Reform Stalls in the States - and in the Supreme Court

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  1. Simple and direct; bring back dueling.

    1. Why should the culture war's victors give any chance to the losers?

      (if you catch one song today, make it that one)

    2. YLS should be embarrassed. It made Josh Blackman 100% correct in a post. Do you know how badly you have to screw up to make Josh Blackman right about something?

  2. " The implication here was not too subtle: apologize, or we will report you to the Character & Fitness committee of the bar. "

    When someone at a baseball game yells 'duck' or 'watch out,' does Prof. Blackman conclude that the person who has provided the warning also threw the ball or bat traveling toward Prof. Blackman's head?

    1. More like, "Duck..." "Or I will throw a bat at your head."

      1. "Duck, because I will do nothing to protect you from an illegal assault on your Constitutional rights"

        Yeah, that's a good look from a law school.

    2. "When someone at a baseball game yells ‘duck’ or ‘watch out,’ does Prof. Blackman conclude that the person who has provided the warning also threw the ball or bat traveling toward Prof. Blackman’s head?"

      Your honor, my client said that it would be a shame if somebody burned this place down. He never said he would do it himself.

      1. Some people have a difficult time parsing social cues, particularly at this blog.

        1. Yup. But every time I read one of your comments, I think, "There's a guy who understands social cues."

          1. In the misfit world of the bigoted and autistic, I guess I should not run for class president?

            1. Weren't you defending rape the other day Rev?

              1. Sounds like me -- in the right-wing fever dreams on the intertubes.

              2. "Weren’t you defending rape the other day Rev?"

                If a man's wearing a dress when he rapes a woman, it's not rape, it's progress. Right Arthur?

                1. It's a shame that conservative thought has devolved into stupid crap like this. And people here wonder why the world slips from them? It's because you are too caught up in your fantasies.

                  1. I assume he's making a sarcastic reference to events in Loudoun County.

                    "In May of this year Smith said he was summoned to the school because “his 15-year-old daughter had just been physically assaulted in a bathroom by a male,” according to the Wire. Smith said the situation was worse than what the school portrayed; he claims a boy who was wearing a skirt entered the girl’s bathroom and sexually assaulted his daughter.

                    The school did not give much detail to Smith, only saying it was handling the situation in-house. Smith made a scene out of frustration with the school, and the school called the police on him.

                    The school superintendent then sent an email to the community which described “an incident” involving Smith but did not mentioning the assault or alleged rape of his daughter.

                    The incident involving Smith’s daughter did not go completely unnoticed. Smith’s attorney confirmed that “a boy was charged with two counts of forcible sodomy, one count of anal sodomy, and one count of forcible fellatio, related to an incident that day at that school. ”

                    A rape kit was tested on the daughter later which lent “favorably” to a case against the suspect. Prosecutors met with the boy who “made self-incriminating statements in an interview” and from that “a conviction was expected imminently.” Smith commented favorably on the possibility of a plea deal with the boy, making his sentence less harsh than the initial charges. Smith appeared to place more of the blame on the school board policies that allowed the assault to occur, then he did on the boy himself.

                    The incident led Smith to attend the school board meeting which resulted in his detainment for disorderly conduct and resisting arrest. His charges were dropped before the top prosecutor in the county, also a progressive, sought jail time for Smith. He was still found guilty of a lesser sentence and forced to pay a small fine and given 10 days of suspended jail time reliant on his ability to exhibit “good behavior” for the rest of the year.

                    The case for the young man who allegedly raped Smith’s daughter was expected to be resolved with the plea bargain on October 14. However, the same boy was charged with sexual battery involving a different girl in the same school on October 6. He was placed in juvenile detention, and his court date has been moved to October 25 to handle both this new charge and the one against Smith’s daughter."

                    1. Brett, I'm aware. Not sure how anyone gets the conclusion that because of that incident, that rape is okay when the person wears a dress. How about rather than spending paragraphs explaining to me what I already know, you address the thing I actually questioned.

            2. You should run for King, Arthur. But you don't need to. You will always be King in that world.

    3. Right, and when mobsters told people, "Nice business you have here, it would be a shame if something happened to it", they weren't making threats -- they were just giving out friendly advice about, say, having a good security system, insurance coverage, and that sort of thing.

      1. A Soviet dissident referred to the Soviet government as "undisguised political mafia."
        I find it curious that, according to the Free Beacon article, "diversity director Yaseen Eldik" is "a former Obama White House official."

  3. Time to tax these hedge funds with colleges attached.

    1. Tax them? Nah, that leads to a bad place (to me). How would you tax endowment funds and not churches? How does that line get drawn?

      But force them to open up their books, and let the sunlight in? To expose what they do with the funds entrusted to them? Yeah, that I could see. Charitable orgs have a myriad of reporting requirements. Maybe it is time for endowment funds to join in on that fun.

      1. What would be wrong with asking churches to stop freeloading?

      2. "How would you tax endowment funds and not churches?"

        No church has an endowment in the billions.

        "How does that line get drawn?"

        By amount of the endowment. Yale has a $42 billion endowment, Harvard more.

        Why should contributions be deductible? They don't need them, they can never ever spend that endowment, not in a hundred years.

        They should pay tax on their profits too. You do.

        1. Bob from Ohio...I guess I keep coming back to (in my mind) is this: The power to tax is the power to destroy.

          Forced transparency? I think that is appropriate. And then I'd want to see how that does for a decade or so before contemplating more changes. Sometimes, just shining a spotlight on problems is enough to prompt changes (or reforms, if you will).

        2. Tax schools and not churches.

          Good luck with that one in an improving America.

        3. Taxing endowments above a certain size isn't a bad idea.

          A problem with our educational system is that increased in demand don't seem to drive increases in supply.

          Taxing endowments would encourage schools to increase capacity in response to higher education prices.

          1. I hope right-wingers keep choosing superstition over education.

            Mostly because I want the liberal-libertarian mainstream to continue to win the culture war.

            1. Taxing endowment with the aim of getting schools to spend them on education is not choosing superstition over education, Arthur.

              I guess it's clear that the reason you comment the way you do is that you're too stupid to participate in a real discussion.

              1. Its ignorance and bias is now hitting you? Crikey, the motherflipper has been at the zenith of stupid bigotry for years.

        4. Endowment not used for tuition should be taxed AND Harvard and Yale should take the lead in getting donations to the top 100 private colleges so they too can be tuition free for a significant number of students from middle class families. So if Harvard and Yale believe Emory and Miami add value to America then Harvard and Yale should decline donations and direct the donors to donate to other top 100 private universities specifically for tuition for students from middle class families.

          1. In this command-and-control approach to ordering society, how should we handle televangelists, faith healers, online Bible schools, Liberty, and Regent?

            1. Wealthy people like Bloomberg already understand tuition is asinine and so he donated over a billion dollars so Johns Hopkins could follow the lead of Harvard and Yale and be tuition free for students from middle class families. Query—how many 18 year olds do you know with $200k under their mattress for college tuition??

        5. I remember when $1B was a big endowment.

  4. Second, it may be necessary to seek advisory opinions from state supreme courts and disciplinary committees about whether character & fitness referrals are appropriate for protected speech. Speech protected by the First Amendment should not be the basis for excluding someone from the bar. But if some bureaucrat decides that discipline is warranted, then the bar should be sued.

    Surely even Prof. Blackman can't actually be stupid enough to think that 1. this is an open question or that 2. the question has been resolved the wrong way.

    1. Oh, I don't know. I use protected free speech to exclude several politicians from the group of people I would ever vote for.

  5. Or get rid of bar associations' role in certifying lawyers. Let customers ask about their credentials. I doubt anyone looks at those damned things anyway, other than the credentialites who think Prof. Blackman is unqualified because he isn't at Harvard, or want to impress the gullible with how qualified the Supreme Court nominee is. How many people even know where their dentist or doctors hangs his credentials? How many ask? None. They ask friends, they find out who their health insurance covers.

    1. So apparently you also don't know the difference between a state bar and harvard?

  6. I'm retired from the practice of law after close to 50 years, so I don't have a dog in this fight. The great majority of the lawyers I dealt with in my career were graduates of good or excellent law schools. But I did work with and against graduates of second and third rate law schools (particularly, but not exclusively, on what for me were pro bono matters). In an ideal world, I would favor allowing the law guild to continue to serve as gatekeepers for admission to the practice of law. But the misconduct by officials of Yale Law School -- in my day one of the creme de la creme of law schools -- makes me wonder whether we ought to consider allowing anyone who chooses to hang out her shingle to walk into court, and let the customers decide whether or not she's competent.

    1. I sense you might have a dog, and that the dog is a disaffected, right-wing dog.

      1. Who knew caveat emptor was a "right wing" principle?

        1. For classist bigots who are against the freedom to select one's own attorney, it is.

    2. The difficulty is in becoming an informed consumer.

      For most products you can tap in to a large number of both anonymous reviews and first hand experience. For doctors, you might interact with multiple physicians in a single year.

      With a lawyer, you're likely to have much less available information.

      I also get the sense that even with gatekeeping, we have an abundance of lawyers.

  7. "...implication here was not too subtle: apologize, or we will report you to the Character & Fitness committee of the bar."

    Not that I want to stick up for the administrators, but jumping to the conclusion that *the administrators* will report the student to the committee is as big a leap as the assumption of minstrel show & blackface.

    It's pretty clear that *somebody* will complain to the committee if their attention span is that long, but not necessarily the administrators who bungled this incident. I don't see it so much as a threat as a prediction.

    Don't they teach critical reading skills in law school any more?

    1. "*somebody* will complain"

      When I give advice along those lines, I'm typically very clear that *I* am not someone who would report or complain.

      Is it plausible to think that students will file complaints with the bar?

  8. Too much is being made of this specific threat. It was presumably picked because it’s the easiest and the one where the student has the least recourse.

    Take away this one avenue to threaten the student and the "diversity and inclusion" office would simply find the next most coercive threat they could make.

    It seems pretty clear the university supports and values this sort of behavior by the "diversity and inclusion" office.

  9. I've seen less result in an extortion charge: A statement, in a demand/pre-action settlement letter to an attorney, that practicing as a professional corporation without malpractice insurance was, by rule, unethical and had to be reported to the Bar. A couple extra adjectives and underlining was all it took. The malpracticing attorney's own lawyer filed an extortion charge (this, in a state that allowed private prosecutions at the time) and used that to make the malpractice case go away.

    The Rulebook solution for this situation is to report the dean to her Bar for unethical behavior, three counts: extorting the apology letter out of the student, lying about it to exculpate herself while knowing he had a recording of the encounter, and generally bringing discredit to the profession and not reporting herself. The rulebook solution is more honored in the breach, but members of the Bar(s) she's member of, should they know all the details, themselves commit an ethical violation by not reporting her.

    And in most jurisdictions, reporting alleged attorney misconduct is immunized against suit.

    1. "lying about it to exculpate herself while knowing he had a recording of the encounter"

      So, the charge would not be lying, as such, but lying when it was stupid to do so?

      1. Well, when you think about it, don't most ethical issues boil down to stupidity?

        1. Most, but not all, unless you're talking ethical egoism.

  10. I'm curious that Prof. Blackman allows everyone to remain anonymous. Yale clearly doesn't extent the same courtesy. Anyway, someone should file an ethics complaint against Ellen Cosgrove. (That's her name.) It's not only contemptible, but unethical, to threaten a negative reference to the character and fitness committee on account of speech that is (i) wholly innocent and (ii) even if it weren't, constitutionally protected.

  11. Which is sadder? That Koppelman felt he had to include this first paragraph in order to safely write on this topic? Or that he actually thinks it will protect him?

    L'Affaire Trap House at Yale Law School

    "The movement for diversity and inclusion has improved people’s lives in many tangible ways. A few days ago at Northwestern Law School, where I’m a professor, I went into the men’s restroom and saw that the school had provided tampons and sanitary pads on a shelf there. It made me happy. There are people here who menstruate and identify as male. Their needs matter, and the school now recognizes that.

    But in other respects, the diversity and inclusion movement is becoming the enemy of diversity and inclusion..."

    1. "There are people here who menstruate and identify as male. Their needs matter, and the school now recognizes that."

      Diversity means mental health issues no longer matter.
      I would not use a lawyer who cannot acknowledge reality.
      If you can menstruate, you are female. Deal with it. And deal in a manner that does not attempt to force me to disavow facts.

    2. Which is sadder? That Koppelman felt he had to include this first paragraph in order to safely write on this topic? Or that he actually thinks it will protect him?

      That Brett feels that people who say and do things don't mean them, but always have ulterior motives that only he is clever enough to discern.

  12. that threat would never actually be followed through.

    Of course it would have been. Admin meets Leftist lawyer for a drink, asks it if it's heard of the "student name here" situation, Lefty lawyer files complaint. Everyone with a brain cell knows EXACTLY how it works.

  13. By high school I had learned that the "good" teachers were the ones who would generally teach you what they wanted you to learn.

    While it was the awful teachers who would provide the more valuable, but wholly unintended lessons.

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