Plenary: Candour in Disclosing Character and Fitness Issues

by Paul Maharg on 22/04/2012

The full title of the first speaker’s session is ‘Trends in Character and Fitness from the perspective of a Seasoned Law School Administrator’ — Ann Lukingbeal, from Cornell — Asst Dean, Admin.  She pointed out that students are sanitizing their applications to law school, ie concealing negative information.  eg at Cornell the ‘Have you ever been arrested for …’  — there’s been no increase in the affirmative to that question.  In student fitness issues there are silent records from faculties and deans, and letters of recommendations that are silent about issues.  There is increase in international applicants.  There’s less knowledge of backgrounds, and different standards for candour in admissions.

Character issues…  Vast majority of students are excellent, but there’s increasing evidence in 2011 class of anger management issues, narcissism, increasing focus on self & career, and more conscious of pitfall potential.    There are more requests from students for administrative intervention; listserv incivility, fertile ground for claims of lack of professionalism.  Debt management is a new area of inquiry.  There is a growing literature on law graduates’ inability to pay their loans.  Many law school admissions committee are caught — they want to help students borrow, but this may be a poor choice for students.  120000/60000 debt on average.  Defaults are reported to university.  NY Bar question 15e now asks ‘Do you have any loan made or guaranteed by the NY State HE Services Corp currently outstanding?’ and asks about default.  Law School admissions co’ttees are now forced to become detectives seeking information.  Where do we go from here?  Develop techniques based on available information, eg look carefully at transcripts, meaning of several leaves of absence, etc.

Next Robert Schuwerk, a member of faculty at the U of Houston Law Centre, specializing in attorney tort & disciplinary law and law student well-being concerns.  He was concerned about students lying in character and fitness situations.  His committee engaged with students to let them know what the real issues were; simplification of discovery and investigation procedures, and a digital feed directly into student records (if I’ve got that right…).

Has it succeeded?  Yes, in that issues are raised sooner than at the Exam Board.  Minor disclosure problems get resolved quickly.  Feedback on the application & disclosure is positive.  Problems remain in getting fewer students to make disclosure errors.  What about sanctions for not entirely proven but probably false statements…?  Ie being careless with the truth or its interpretation.  Some form of discipline is probably important for law schools to impose, eg some form of probation or putting students on record.  Finally, how shd you treat the all too rare student who fesses up — ‘I knew I had to tell you about X but I was anxious and shd have.  Sorry’.  He asked — is this mitigating or aggravating?  Example: student confessed –private high school — expelled for cheating — student said there were no records — no one will ever know — Robert replied, well not quite no one knows — student asked what he shd do.  Robert told him it was a reportable offence, and that reporting it this time wd make it easier for the student to do the right thing next time.  Student was listening carefully to that.  He handed himself in, was punished, but Robert respected him for his decision.  Rationalization and denial — we must be careful that we don’t teach students these lessons, Robert said.  Interesting talk.

Finally, Peter Ash, psychiatrist, gave a mental health perspective on candour etc issues.  There’s a real overlap between mental health & practice fitness issues.  Most people work on a risk model — mental health problems give rise to fitness issues.  But the protective model says wellness leads to professionalism.  He offered a caution — do acts reflect character or situation?  Eg the Princeton Theology seminarian Good Samaritan study.  Lecture given to students in one building, then students had to move to another building.  There was someone in distress, some students more in a hurry than others, etc.  Study summarised here.  You have to structure candour such that it’s obvious that this is the right thing to do.

He raised the Index Problem.  There’s a developmental history to almost all problems that occur in early twenties.  Eg spouse abuse — violence will be part of that person’s developmental history. Issues:

  1. social and brain maturation
  2. judgement
  3. short term reward valued over long term consequences
  4. assess change

DSM Axis 1 disorders — depression & psychotic disorders — may give rise to impairments, but are not usually primary in cause candour issues.  Personality issues, Axis 2, character doesn’t usually change:

  1. antisocial personality/psychopathy
  2. developmental disorders (Asperger’s, PDD)
  3. narcissism

The last is esp problematic, eg grandiosity, need for admiration, lack of empathy, beginning by early adulthood & present in a variety of contexts, sense of entitlement.

Substance abuse: abuse v. dependence, etc.

Assessment of this?  A mental health person asks about facts, but also ‘what was in your mind when you did this?’  Important question, Peter said.  Very interesting summary of some of the mental health issues.  Wish we had more time on this.

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