Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Tuesday, September 7, 2010

The Most Appalling Professional Misconduct by an Academic Job Seeker Ever

The story that follows came to my attention awhile back, and while I have removed details identifying the perpetrator (whose identity is now known, and may be posted here subsequently--for now, we'll call her P) and the victim (whom I'll call V), as well as the school involved, I want to share the basic details to gauge reader reaction.

P and V were both on the academic job market.  (I know V, I do not know and have never spoken to P.)  They had somewhat overlapping areas of research interest, and so might have been thought of as competitors, as it were.  Both P and V were under some degree of consideration at Major Law School (hereafter MLS).  But V, unlike P, got a fly-back to give a job talk at MLS.  On the morning of the day of V's job talk, P sent the following e-mail under a pseudonym ("Jade West") from an e-mail account created for that purpose.  The e-mail began with a quotation discrediting V's scholarship and disparaging V's publications.  P alleged that this quotation came from an email that was sent to P's "colleagues" at MLS.  The e-mail concluded with these lines:  "In other words, WE DON'T WANT YOU...HERE AT [MLS].  You belong at a crap school like [name omitted].  Hope you blow your job talk today."

Fortunately, V did not see P's e-mail until after the job talk.  V was obviously very distressed, however, and the intent of the malicious missive was clear.   Its contents were also false, i.e., no e-mail had circulated among faculty at MLS like the one P purported to be quoting, and P was never a faculty member at MLS.

An acquaintance of V, a computer expert, set up a technological trap known as a "honeypot" to decisively link P's fake email account to P's school account.  P's identity is thus now known.

P, in fact, secured a tenure-track job at another law school. That law school does not know about P's appalling misconduct. 

Should MLS notify the law school that hired P about what P did?   Should V?  Should those of us, like me, who now know the identity, do so?  Should that information be made public?   The school that hired P did not know of P's misconduct; what should they do when they find out?  Is P's appalling misconduct a firing offense?  Grounds for tenure denial?

I am curious to hear what readers think, or if they have ever heard of misconduct this egregious.  Only comments with a full name in the signature line and a valid e-mail address will be posted.

UPDATE 9/9:  Please see the update.

http://leiterlawschool.typepad.com/leiter/2010/09/the-most-appalling-professional-misconduct-by-an-academic-job-seeker-ever.html

Advice for Academic Job Seekers, Legal Profession, Of Academic Interest, Professional Advice | Permalink

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Comments

This conduct would disqualify P for the Bar, so she should be disqualified from Academia, too.

Someone should get in touch with whatever Bar she has applied for, or is a member of (if any).

Someone who knows what she did should communicate with her and advise her to resign the position she obtained. Possibly it could be agreed not to make her name public if she does not apply for another position within X years, or after some proof of "rehabilitation". (She needs professional help; she should get it.)

Posted by: Margaret Jane Radin | Sep 7, 2010 5:03:23 AM

I agree with Margaret that the thing to do would be to contact P directly and give her the chance to resign. But yes, I do think her employer should be told if she declines. We are in the business of educating lawyers, and this person has no business educating professionals. The school can, of course, choose to do whatever it wants. But I wouldn't want this person on my faculty.

Posted by: Mark McKenna | Sep 7, 2010 5:51:35 AM

I think that the Associate Dean of P's school should be informed. Contacting P directly and attaching conditions (ie., "Resign or else") feels wrong to me.

Posted by: Gerard N. Magliocca | Sep 7, 2010 6:58:13 AM

Well I'm no Randy Cohen (the NY Times ethicist), but if this isn't unethical, then just what is? I would be very very sure indeed, though, that the person was guilty and also--don't laugh--that the entrapment itself doesn't raise legal or ethical issues. I will conclude with the observation that this tells you about all you need to know about the hiring process at "major law schools" and what is wrong with it.

Posted by: mike livingston | Sep 7, 2010 7:48:35 AM

I'm very curious how the acquaintance was able to set up a honeypot that did not in some way violate the computer fraud and abuse act or the stored communications act.

I don't say that to somehow justify the perpetrators conduct, or to say that what the acquaintance did was morally or ethically wrong, but rather to say that there are some other considerations in terms of coming forward in improving the misconduct.

Thus, I think that Victim should contact Perpetrator and tell them -- without too much detail -- that they know of the misconduct, and tell perpetrator that they have two weeks to report the misconduct to the administration at their school. (And that they expect to receive a communication from the administration verifying that they have learned of the misconduct.)

If they don't, then Victim can come forward with information.

Posted by: Max Kennerly | Sep 7, 2010 7:53:13 AM

I am generally much less hostile to anonymity than you are in other contexts, Brian. Having registered that general point, in this case the email is not only anonymous and abusive but also contains disinformation. I agree that an implicit threat -- resign or your identity will be revealed -- is not the appropriate approach; surely this person's identity either needs to be revealed or not. The right thing would be to approach an appropriate dean at the school. Remember too that, as Prof. Radin says, this behavior might be so aberrant that it is indeed the action of someone who needs help more than anything else.

BL COMMENT: I have to say that it never occurred to me that there could be any moral entitlement to remain anonymous in an instance like this. I do concur with you and Professor Radin that this behavior suggests an underlying psychiatric disturbance, which is why I am loathe to publicize the name on the blog. On the other hand, the behavior is so malevolent, and destructive to the academic enterprise, that it requires some kind of sanction.

Posted by: Paul Horwitz | Sep 7, 2010 7:59:50 AM

Might a demand that P resign in return for keeping the information secret be considered blackmail?

Posted by: Steve Swanson | Sep 7, 2010 8:57:46 AM

I would go further. Publish. This sort of information about the character of an academic and a lawyer should be known by the community as a whole before s/he victimizes anyone else.

Publish, that is, if you're completely confident in the evidence. (Publicity will also allow him/her to come forward with any defense.)

Posted by: Paul Gowder | Sep 7, 2010 9:45:04 AM

(Addendum: also, this business of telling the perpetrator to step down and the information will be kept secret smacks far too much of blackmail for my taste. And why is it the business of the people with this information to help the wicked hide their misdeeds?)

Posted by: Paul Gowder | Sep 7, 2010 9:46:47 AM

As a dean of a school, I would want this information to be shared with me, because if it is true I would have a need, at the very least, to assure that no further behavior like this ever happened at my school. If someone with the courage not to remain anonymous notified me of this (ideally not through a blog post to the world), I would initiate appropriate internal steps to investigate, including notice and an opportunity to be heard by the accused professor. Deans get lots of anonymous allegations; is anyone out there willing to step up and speak directly to the dean of the school involved?

Posted by: Kent Syverud | Sep 7, 2010 12:24:29 PM

I only want to add that the burden of action should not be placed on V, who has already been through enough. If the interests of the academic community as a whole are at stake here, or at least those of MLS and/or the school at which P is teaching, other interested parties should act, leaving V out if it, unless she chooses to become involved.

V might worry that continued involvement might generate further harassment by P. V should be able to focus on beginning her career, and not on any further involvement with P.

Posted by: Mary Dudziak | Sep 7, 2010 12:52:45 PM

The academy shouldn't tolerate this type of bullying behavior by P. And I agree with Prof. Radin--P's bar should hear about this conduct, too. Neither faculty members nor state bars should tolerate behavior so clearly wrong (not to mention childish).

Posted by: Nancy Rapoport | Sep 7, 2010 12:54:15 PM

I would want to be quite certain about P's identity as the author before taking public action. Not knowing the details of the honeypot make it difficult to say how much certainty it provides. Email accounts can be hacked; it is possible that P is being set up.

BL COMMENT: That's not an issue in this case. But, as I indicated above, I am loathe to publicize the name, and I am hopeful that P will own up to the misconduct.

Posted by: James Grimmelmann | Sep 7, 2010 5:19:27 PM

Just to be clear, I don't think there's any moral entitlement to remain anonymous in a case like this (or in many others). I only wanted, perhaps unnecessarily, to agree that something ought to be done without signing on to any other positions about when anonymity is or isn't acceptable.

Posted by: Paul Horwitz | Sep 7, 2010 6:06:17 PM

P's actions were extremely unprofessional and ugly(and probably abusive to boot), but I am not persuaded that this incident would automatically prevent bar admission if it were a one-time, aberrant action from an otherwise upstanding individual. Nor am I convinced that LS must immediately fire P as some of the commenters suggest. While I am very troubled to learn that a colleague in the legal academy engaged to such ugly behavior, I would like to learn more before making that kind of assessment.

Posted by: rebecca bratspies | Sep 7, 2010 6:57:04 PM

As a law dean who is now serving as Provost & Vice President for Academic Affairs, I believe that the most effective way we teach is to model the behavior we expect of the next generations of students entering professional or civic life. Placing the onus on V strikes me as unfair to V, for the same reason that as an administrator it is my responsibility to take appropriate action when I become aware of serious misconduct. My other concern about letting this bubble below the surface is that I would be very apprehensive about how P would interact with colleagues and/or students. Without going all Dr. Phil on you, the best predictor of future behavior is past behavior. As someone in the chain of what we laughingly call "command," I'd want to know that this behavior had occurred and at least have an opportunity to assess(or seek professional evaluation of) the riskiness of continuing to employ the person who had displayed such an appalling lack of professionalism, honesty, and concern for the well-being of others.

Posted by: Paul LeBel | Sep 7, 2010 7:35:41 PM

I don't have anything to add to the sound advice offered by this group of able academics and deans. But I would omit the gratuitous comments about P's psychological condition or or circumstances. Unless one of the posters has some special psychiatric expertise this is really beyond the expertise of a group of legal academics, no?

Posted by: Dan Rodriguez | Sep 7, 2010 10:23:03 PM

Just to clarify my own post in light of some of the comments that follow it - I had thought it implicit in what I was saying that giving the person the chance to resign would entail giving an explanation to his/her dean. So I guess what I meant is that I think it is fair to give the person a chance to disclose the information him/herself to the dean and to resign (which certainly would not prevent the school from investigating as Kent suggests), or to have someone else inform the dean. Perhaps I should have made that clearer.

Posted by: Mark McKenna | Sep 8, 2010 5:59:56 AM

C'mon, Dan, there is nothing that is really beyond the expertise of a group of legal academics. You know that.

BL COMMENT: Now, now, we are not going to have this turn into the Dan & Frank Show. With regard to behavior this unprofessional and malevolent, the hypothesis of psychiatric problems is the charitable explanation.

Posted by: frankcross | Sep 8, 2010 7:52:42 AM

As a candidate on the market this year, I feel compelled to weigh in. P's actions were shocking and repulsive, as all agree. I cannot imagine what would motivate someone to do that. To be honest, though, I'm not entirely convinced that this is more than a horrible (and still mean-spirited) prank gone wrong. P used language in her email that should make someone question its authenticity. Maybe that was intentional so that, by the end of reading the email, V would know it was all a prank. Does that excuse the conduct? No. Does it mitigate, at least a bit, the harshness of the penalty that ought to be exacted? I think it might. But the real quesetion is what her employer (and colleagues think). And I imagine from their perspective, they would prefer not to have private demands of resigning placed on their employee from members outside their community.

That is why I think it would be best for Professor Leiter to notify the school's dean in a formal letter, cc'ing P. It shouldn't be accompanied by calls for action, but it should alert the dean to the problem. That would allow the school to pay careful attention to P's interactions with students and colleagues. If another instance like this arises, she won't be able to offer the "it's an aberration" excuse then. But if nothing like this happens again, maybe the school will accept that.

Of course, I do want to make perfectly clear that, as a candidate this year, I agree at least 100% percent with every single one of the comments posted above (and 150% with those comments posted by members of hiring committees).

BL COMMENT: I've seen the complete e-mail, it was no prank, it was an act of malice intended to harm a competitor.

Posted by: Michael Teter | Sep 8, 2010 8:25:00 AM

I want to caution against publicizing P's name, but not because P has any claim to retain anonymity. Rather, publicity would seem likely to create other, ancillary harms, which can be avoided by communicating with appropriate deans at P's school. For example: P may have begun teaching, and an internet s***storm about P could undermine P's classes and negatively affect P's students' learning.

Moreover, I don't think that P will remain anonymous for long; this kind of thing will be gossip fodder for a long time. But if the information is first conveyed to the dean (which seems like the right course), it gives the school a chance to deal appropriately before the internets do their thing. It also may give a chance to get P some help, if that's appropriate.

Posted by: Alan Rubel | Sep 8, 2010 8:33:09 AM

Selfishly, as a member of a faculty, I would want my Dean to know about this behavior of a recent hire. If P sees competitors everywhere and deals with them in this way, then her fellow colleagues might be her next victims. So, with future incidents in mind, I would suggest alerting the Dean and the bar, if not the public at large.

Posted by: Christine Hurt | Sep 8, 2010 8:46:01 AM

I agree with Kent, as a Dean this is information I should have. I don't know why V has some special responsibility to disclose it to the Dean of P's school, that would be up to P Nor do I think relying on the "word" spreading is a decent approach. I'd would like to believe that the Dean who had the information on behalf of MLS would approach the Dean at P's school to give them the information. What the Dean at P's school does is a topic worthy of discussion

Posted by: Hannah Arterian | Sep 8, 2010 9:13:14 AM

Professionally, isn't this "conduct involving fraud, deceit, dishonesty, or [and] misrepresentation," under the Rules of Professional Conduct (8.4(c))? I should think that a member of the bar who has non-confidential knowledge of the conduct is obliged to report it to the appropriate professional authority.

Posted by: William Bridge | Sep 8, 2010 9:26:01 AM

I find it difficult to imagine that someone capable of so despicable an act would otherwise lead a blameless professional life. Would you want this person around when her tenure file goes up, perhaps along with others from her school? Nor would I want such a person serving as a model for future lawyers. Nor would I want P to get off scot-free. On the whole, I agree that going public is probably not ideal just now, curious as I am about P's identity. But by all means pass the information on to P's dean and P's state bar. At a minimum, they should have a chance to act first; they're the ones who watch over P's professional behavior. In the end, they also would have more facts, in particular about P's mental state, to help guide their decisions.

If, however, nothing happens, and it becomes clear that the dean and state bar intend to do nothing, it would be time to consider going public. For example, if the administrators in question have decided for personal or institutional reasons that sweeping this under the rug would serve their interests best, I don't think those who can identify P need to honor that decision. But that issue isn't ripe.

Incidentally, I forwarded a link to this discussion to a friend who is a clinical psychologist. After the usual and appropriate caution that diagnosis on the basis of third-hand information is perilous at best, she said that this behavior is consistent with some degree of psychopathy -- but she added that there is a difference between immorality and psychopathy that we would do well to remember.

Posted by: Larry Garvin | Sep 8, 2010 9:35:15 AM

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