Law Professors, Law Schools, Legal Ethics, Screw-Ups

Leaked Exam a ‘Teachable Moment’ on Ethical Consequences for Oregon Law Students

Oregon Law Logo.JPGIt is exam time, and everybody is hunkered down. Law students at the University of Oregon are undoubtedly excited about the upcoming Rose Bowl, but they’ll have to get through finals first.
One group of Oregon Law students received an unexpected surprise during study period last week. They checked their list-serve for Professor John Bonine’s administrative law class, perhaps expecting an administrative announcement about the administrative law exam. Instead, they saw the entire admin law exam, sitting right there on the list-serve. A tipster reports:

so the school emailed the admin law instructions to the admin law listserv. only problem was that instead of the instructions, they sent the actual exam. bonine is in copenhagen for the un conference. exam is supposed to be monday.

Oh, happy day! But there’s a catch:

In the spirit of the psuedo-ideal world that Oregon Law students live in, the professor replied with the comment that everyone should delete the test, and that this is a “moment in academic ethics” that will define the rest of their careers.

Wait a minute, somebody else screws up, and now it’s become a matter of professional ethics for students who were just trying to study?
According to Professor Bonine, that is precisely what is going on here. We reached out to Bonine (now in Spain) and he explained that he was using the accidental exam leak as a “teachable moment” in professional ethics.

Let me be clear: if I opened my inbox and a copy of my upcoming exam had been sent to my entire class list-serve, I would have considered that exam to be public information. I would have printed it out (lest the mistake be quickly corrected), and I would have used the exam as the basis for any further study for that course. I believe in ethics. I believe in honor. But I do not believe in putting myself at a competitive disadvantage because somebody else screwed up. I’d read the exam and sleep easy that night, with my conscience clear.
Professor Bonine thinks that my imagined actions would have been in error. When Above the Law corresponded with him via email earlier today, the professor explained why he thought the students were duty-bound to delete the exam:

I told them that they are bound by the honor code of the Law School and University (which they pledge, in writing, to abide by each time they take an exam) and also by the Oregon Rules of Professional Conduct and analogous Codes of Professional Responsibility in other states that are applicable to lawyers, because law students are bound by such codes the minute they set foot in law school. I explained that they can be denied admission to the Bar for engaging in dishonest activity, including failing to delete the exam or failing to tell me whether they read all or part of it.
In short, even though I decided to give them a different exam, I considered it important to help reinforce ethical principles regarding what they had to do with the exam that they inadvertently received. By the way, each member of the class deleted the exam and emptied the computer trash, and disclosed whether they had looked at any part of it or not inadvertently. If all this makes the story a bit boring, so be it.

Really, all the students deleted or honestly disclosed how they used the exam? Really? The students in that class — competitors, mind you, in difficult job market — are supposed to just trust that everybody else was honest about this?
If so, why not just go ahead with the original exam as planned? Just dock the students who used the exam while it was up a third of a grade. That would be fair — if they really weren’t supposed to look at documents made available on a class wide list-serve. Why the need for the second exam? Why the two orders?
I asked Professor Bonine why professional responsibility came into play when it came to studying the leaked exam, especially since Bonine decided that he would give the students a different test. I noted that students study from old exams all of the time, without risking their admission to the bar:

Students study from old exams that are made available to them for that purpose. Any study of exams they obtain by another means may lead to crooked lawyers.

Crooked lawyers? It’s not like these kids sneaked into his office in the dead of night and purloined the exam from his hard drive. They didn’t lie, cheat, or steal to get the exam. Instead, a copy was sent to them. It was on the list-serv, for God’s sake. As Pfc. Louden Downey might say, “They did nothing wrong!”
Obviously, there is some deep moral dilemma here that I am just not getting. I’m no ethicist (or Marine), so I asked Professor Bonine to expand on the professional responsibility issues at play:

If I were to send the exam, no longer to be used, there would be no “harm” to my evaluating them. I have withheld it for another reason, namely to help teach professional ethics. Ethics is often taught in one class and it is questionable whether it sinks in through that method.
In this instance, I required deletion and then engaged in discussion with the students for the explicit reason of taking advantage of a “teachable moment” on a matter of ethics …
Lawyers are entrusted with clients’ money, expected to be forthright with a judge, their word relied upon by other lawyers, and required to be honest with others in society as well. Getting law students to take ethical responsibility for their actions in the pressure-cooker of exam preparation is about as good a teaching vehicle as one could imagine, it seems to me. Handing out the exam to them — that is, NOT asking them to delete it and report what they had seen or not seen, but instead saying, “Go ahead and take a good look” — would have missed that opportunity.

If I’m understanding the professor correctly, he’s saying that he could have made the problem go away by just allowing his students to look at the exam he no longer intended to use. But, by requiring them to delete the exam, confess if they’d read it, and rat out other students they believed to have read the exam, Bonine was able to convey a practical lesson in real world ethics to his class — apparently in a way that specific classes on ethics are not getting across to Oregon law students.
Bonine also cited various rules of professional conduct. Rule 8.4 seems to be the most on point to this discussion:

“Rule 8.1 Bar Admission And Disciplinary Matters:
“An applicant for admission to the bar, or a lawyer in connection with a
bar admission application . . . shall not: . . . (b) fail to disclose a
fact necessary to correct a misapprehension known by the person to have
arisen in the matter . . . .
“Rule 8.3 Reporting Professional Misconduct:
“(a) A lawyer who knows that another lawyer has committed a violation of
the Rules of Professional Conduct that raises a substantial question as to
that lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate professional authority . . . .
“Rule 8.4 Misconduct:
“It is professional misconduct for a lawyer to: . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”
Since students are bound by the Rules when they set foot in law school, failure to delete the exam and failure to disclose whether they had look[ed] at it and how much would have violated Rule 8.4. They are all aware of that and perhaps are more highly attuned to ethical responsibilities as a result of our discussion.

Well, it seems to me that it is only dishonest conduct if the students had a duty to disclose. Here, is there a duty to not look at a document that has been made available to your entire class via a list-serve? Is there a duty to disclose that you looked at something that was sent to your whole class? And that duty attaches, when? When the professor demands that you ignore his mistake and the delete the document?
Maybe it’s a nice law school hypothetical, but like so many law school hypothetical situations, I question its real world relevance. Admin law is not a court; Professor Bonine is not opposing counsel. I get the analogy to actual instances of professional responsibility, but this is a nice hypo in the face of real-world exams that will have actual professional consequences in the form of employment opportunities. Do students really need a surprise ethics hypo in the middle of studying for admin law, because somebody sent the wrong thing to a list-serve?
If you accidentally come across opposing counsel’s work-product, that is one thing. If a law professor accidentally publishes his exam to the entire class, that seems to me to be a different case entirely. Analogous? Sure. Similar? I guess there’s an argument there. But “the exact same thing and therefore subject to all the rules and regulations of professional ethics”? I think not.
In any event, that is Professor Bonine’s argument. What do you guys think?

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