Law Schools

Letters Of Recommendation: An Ethical Conundrum?

Most aren’t, but it’s worth thinking about when they could be.

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The Twitter discussion started with a question: “Serious question, so serious answers only. Student wants a rec letter to work for a Senator who voted not to certify Biden’s win. Do I write the letter?” Multiple parallel threads, interplaying and ignoring one another, simultaneously went off.

The author of the question was careful to clarify that he has written letters for people he disagreed with before. This went beyond that.

#Lawtwitter got busy with the question, with some offering definitive negatives and others saying they would definitely write the letter.

I initially pointed out that the question is a complicated one. Once you say “of course I will write this letter and so should everyone else,” the next question is what you will say in the letter. It’s trickier than just “yes” or “no.” And what does it mean about other letters you would write and not write? What are your limits?

It isn’t an answer to say we should always advocate on behalf of our students, even to the devil himself. Some of us have been able to have a practice solely on the side of the angels (as we perceive them). Also, we have different devils.  I might be fine writing a letter of recommendation to some employers and more squeamish about others, with other colleagues more inclined the opposite direction. Some colleagues may have no devils. And to others, the devil may be deeply personal.

Also, the student isn’t a client. To say that “as lawyers, we have to represent people we may not like” is skirting the issue. Client representation is based on an adversarial model. Everyone deserves equal access to justice. A letter of rec is not adversarial. Unless your student is a Red Sox fan, and you are very much a Yankees fan.

A letter of recommendation is not a compulsory act. I’ve not been put in a position where I felt uncomfortable writing a letter for a student, with the exception of letters to judges with whom I’ve had run-ins such that my name may not contribute in the best possible way to the student’s interest. I’ve written letters for many jobs (not just law), including for people who worked for folks with whom I vehemently disagree. But I’m not required to write them. If I were, it wouldn’t be a letter of recommendation. I might as well get on Yelp and give all fives to every joint that puts pineapple on pizza and uses an Instant Pot because, at that point, my recommendation matters not at all.

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Most professors can dodge the ethical bullet by counseling the student to get a different recommender. But that doesn’t answer the question asked by the initial tweet. Or maybe it does. Despite saying you’d write the letter, by counseling the student against it, you are ultimately saying that you really wouldn’t.

For those who would write the letter, there’s another question: Would you write it well? I don’t mean would you TRY to write it well. Of course, you would. But: Would you write it well with that deep subconscious bias swirling within? Do you think you can mask your biases that well, or is Dunning-Kruger at play here?

There are consequences going the other way, too. Saying, “Of course, I would not write the letter” leads to a larger question. If everyone has those same ethical standards, where would such a student go for a letter? Does the answer imply we need more conservatives in the academy? Does your stance extend beyond those who opposed certification to an entire political party?

As I said, I believe the choice of whether to write the letter is a personal decision. To the extent that people wish to impose some uniform standard, I’m suspicious. Much in the same way I have a visceral response every time someone tells me we must all do scholarship the same way, in the same journals, and in the same fashion. Conformity kills sometimes. For example, some schools have threatening administrators who denounce faculty that write letters of rec for student transfer.

I’m not comfortable with absolutes, particularly when law professors are GREAT at being dismissive of hypotheticals created to elicit responses from them because, for the most part, they know full well they can avoid the ethical question in real life. But that’s not a real answer to the question of the tweet, is it?

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If you would write ANY letter to ANY employer, what does that say about your core beliefs? Sure, you can mock extreme hypotheticals about whether you’d write a letter of rec for a student who wanted to join a hate group, but there’s a deeper foundational question. If you have no limits, what are your core beliefs? And what does it say about the value of your letter?

If you’d refuse to write the letter to ANY group which you oppose, what does that say about your willingness to engage with opposing viewpoints? What does it say about the degree to which you hold your convictions to be unimpeachable?

And to what degree does the letter have ripple effects? Law professors LOVE to call each other out on Twitter about “how must your students feel when you tweet that (liberal or conservative) stuff,” but letters have that effect too, don’t they? For example, do we consider a letter of rec to MTG for one student to be without impact to transgender students?

As I said, I have my own guidelines as to when I would write a letter of rec, with the presumption being that I’ll write it. But it’s worth thinking about these issues and being understanding with those who have different standards than us.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at lawprofblawg@gmail.com.

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