X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
“It seems surreal to me,” lamented Mary Ann Mason, dean of the graduate school of the University of California at Berkeley. “It is an unnecessary, foolish, tragic incident.” You might think she was reacting to a reckless car crash or a wild fraternity prank gone bad, but, in fact, she was talking about a decision by the U. S. Department of Education that disqualified 30 Berkeley graduate students from seeking coveted Fulbright grants. While the situation was obviously regrettable, Mason’s reaction was overblown, especially since the problem was largely of her own staff’s making. Of course, there is nothing unusual about university administrators — or anyone else — trying to shift the responsibility for their mistakes. But, in this case, the dean’s response can provide us with some interesting insights into ethics education. Here are the basic facts: Applications for the current round of Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship Program had to be mailed by October 20, 2003, evidenced by either a postmark or a “dated shipping label” from a common carrier. The University of California’s graduate division had assembled 30 applications (they could not be submitted individually) on time, and arranged for a FedEx pickup that would have met the deadline. Alas, the FedEx courier did not arrive by the end of the day, due to what has been characterized as a software error. At that point, according to the Department of Education, a simple trip to the post office or a FedEx drop box would have satisfied the mailing requirement. But instead, a university employee e-mailed the department, explaining the failed pickup and stating that the package would be sent the next day. There was no immediate reply to the e-mail, and nothing more was done that day. FedEx duly picked up the package the following morning, and apparently agreed to backdate the air bill, incorrectly showing that the applications had been shipped on time. Eventually, however, Education Department officials matched the e-mail to the corresponding grant proposals, and determined that they did not meet the deadline, notwithstanding the backdated air bill. After several months of negotiation, including high-level lobbying and a trip to Washington by university Chancellor Robert Berdahl, the Department of Education held firm. The applications could not be considered because they had not been posted on time. At least 60 other institutions had managed to meet the deadline, and the University of California was not going to get special treatment. (Disclosure: I am a Berkeley graduate, J.D. 1973.) The Education Department’s determination to enforce the deadline is debatable, but not irrational. There is a limited amount of fellowship money available, with many applicants for each possible award. Given the finite resources, every grant provided to a late applicant is necessarily taken away from someone who applied on time. Lawyers generally understand that some deadlines are absolute, but university administrators apparently do not. Instead of accepting the consequences of their own poor judgment, Berkeley officials lashed out at the Department of Education, calling the decision outrageous, senseless, stupid and worse. Most interesting for our purposes, however, was a comment of Mason’s, reported in The New York Times, that placed the blame on Education Department attorneys: “The final terrible remark of the lawyers was, �If you hadn’t e-mailed Washington, we would have let it go because we wouldn’t have known there was a problem,’” she said. According to Mason, the lawyers’ implicit message was “Honesty is not the best policy.” Mason is free to take any lesson she wants from this fiasco, but it is breathtakingly wrong for her to suggest that she and her students were somehow disadvantaged because of their honesty. After all, a graduate division employee (we don’t know who) evidently sent in the application packet with a backdated air bill, misrepresenting the actual date of shipping. Nor does it seem that the university ever explicitly corrected the misrepresentation, rather than leaving it to the Department of Education to put two and two together. The New York Times reports that the e-mail was “apparently the only evidence that the applications had not been sent on time.” But let’s not quibble with Mason’s definition of honesty. There is something even more fundamentally troubling about her comment. Her obvious claim is that the e-mail’s honesty should lead to a waiver of the deadline, thus proving it to have been the “best policy.” Never mind that it would hurt the chances of hundreds of other students who “honestly” got their applications mailed on time. Need it really be said? Honesty is the best policy because it is, well, honest — not because it gets you something. Mason and her employees were under an ethical obligation, perhaps even a legal one, to correct the misleading air bill. Her remark suggests a belief that she should have been rewarded for coming clean, but that would reduce truthfulness to the level of opportunism, with dire consequences for education and society. And that brings us, finally, to the study of legal ethics. Over many years, I have observed any number of law teachers — in professional responsibility, trial advocacy, negotiation and other courses — tell their students that “lying is counterproductive.” Liars, they say, will eventually be caught and disgraced, if not disciplined. At the very least, their reputations will suffer as word gets around, and no one will trust them. The admonition, then, is that lying will hurt your practice. This approach has always seemed questionable to me. I think most lawyers would agree that liars (and assorted cheaters) often succeed and prosper, with no loss of clients or income, nor any other comeuppance. It is impossible to know how many liars have avoided all detection, so there is really no empirical basis for believing that bad actors are always, or even usually, unmasked. Perhaps it is preferable to level with students, telling them that lying can indeed work, at least some of the time. Lying is egregiously wrong, but not because of some shrewd utilitarian calculus. Professional responsibility, after all, involves principles, not expediency, and ethical behavior should be motivated by something more than fear of adverse consequences (or, as Mason intimated, the promise of a benefit). And consider this: If we teach law students to refrain from lying for fear of being caught, what will happen when they find themselves in situations where exposure seems nearly impossible? What then is the motivation to tell the truth? Lawyers today face immense pressure to maximize profits and optimize results. There is always temptation to cut corners or to fib, and too many lawyers have found themselves, say, withholding discovery or forging documents. No one ever does that expecting to be caught, and we can only wonder how many have managed to get away with it. There will always be situations in which the advantages of lying promise to outweigh the likely consequences. Unlike Berkeley’s Mason, we need to recognize that truthfulness does not always pay off, no matter how much we wish it would. Of course, we all hope that liars will be nabbed and disciplined, shamed and ostracized. Unfortunately, we cannot guarantee it. Nonetheless (to paraphrase Coach Vince Lombardi), “honesty isn’t the best policy, it’s the only policy.” Even if you lose your grant. Postscript: As of this writing, the Department of Education has not relented, but it appears that an alternative solution is in the works. A group working out of the U.S. Department of State will review the applications from Berkeley and determine which students are the most fellowship-worthy. The University of California will then fund their grants, perhaps with a contribution from FedEx. In other words, Fulbright lite. Steven Lubet is a professor of law at Northwestern University. His most recent book is “Nothing but the Truth: Why Trial Lawyers Don’t, Can’t and Shouldn’t Have to Tell the Whole Truth.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.