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GBB partner Traci Buschner will be moderating a panel on Ethics at this year’s Federal Bar Association Qui Tam Conference. In this video, she previews the panel in an interview with Scott Oswald, chair of the Qui Tam Section of the Federal Bar Association. Watch the video or read the transcript here https://www.employmentlawgroup.com/in-the-news/articles/qui-tam-2019-panel-preview-ethics/.

by Reuben Guttman

American law schools are in trouble. I represent whistleblowers and ferret-out fraud for a living; I sense that something is very wrong in the world of legal education and a mere scan of cyberspace validates some of my concerns.

Start with Twitter and internet pop up ads. These are the cyber-bazaars where degree programs are hawked; and this degree advertising is no longer just the province of for-profit colleges looking to make a buck off students who can snag US Government-backed loans.

Law schools affiliated with seemingly reputable universities are taking to the internet to advertise degree programs that do not come close to enabling the practice of law.

Once thought of as specialized degrees for law graduates entering a technical area or students contemplating academia, LLMs are now being sold by the fistful to foreign students who will pay full freight.

To expand their output, US law schools are making many of these opportunities available online while waiving testing requirements to incentivize the flow of applications. And to service the new crop of students, many law schools are resorting to adjunct or contract faculty, leaving tenured faculty to concentrate on research and selected teaching. At the end of the day, students seeking a quality education from a branded institution are getting something akin to the second tier product of an outlet store.

What is driving all this is undoubtedly the need to grab the cash necessary to compete for US News rankings. And why is there a need for cash? It is simple, with the US News focus on JD programs, law schools need to recruit students with high GPAs and LSATs, which are the currency to get the rankings; and it is the scholarship money that lures the students to the classroom. The spend on students — too many of whom aren’t even in financial need — is something akin to the baseball free agent market.

Unfortunately, the truly top law schools are most likely to get the students with the deepest potential. This leaves lower-tiered schools left to bid for those students whose claim to accomplishment is statistics; indeed statistics without regard to college major, the rigor of the undergraduate institution, or the challenges that the student had to overcome in making it through college.

The truth is that too many law schools are turning themselves upside down and inside out to meet the criteria set by a for-profit magazine that calls itself US News but which actually no longer reports the news.

Placed in context, we live in an era where we relish competition and the data that comes with it. Our nation’s law deans are participating in a competition that is as obsessive to them as realty TV is to the millions of Americans who tuned into “The Apprentice.” The problem is that, with this rating chase, more than a few law schools are turning themselves into academic Ponzi schemes. Money brought in from these newfangled degree endeavors and online programs are being channeled to buy JD candidates with the “right stats.”

The system now favors well-heeled applicants with the financial backing to take LSAT review courses and who have never had to work through college, leaving them time to concentrate on course work. It discriminates against those who may be first in their family to go to college, worked through school, and scrounged together the dollars necessary for a college education. And it is a system that punishes the student who endeavored to push their intellect to the edge with challenging classes; perhaps including those in math and science.

Step back and think about it; our entire system of legal education and how schools award scholarship money is being crafted by ratings profiteers. Placed in perspective, we now have a President who was elected because a TV network anointed him the god of business management and 63 million voters were led to believe it to be true. And how is that going for us?

I could be wrong about this and so I have checked my concerns with colleagues who are law deans, law school administrators, or professors. In my informal outreach I could not find a single member of legal academia who said something positive about the US News rankings. The problem, of course, is that I have failed to find anyone who is willing to take on this ratings system which is both discriminatory and interferes with the task of educating future custodians of the rule of law.

Yet, as historians know all too well, there is often the day when someone wakes up and challenges practices that are well accepted but fundamentally wrong. In these perilous times, I hope that sooner rather than later there is an awakening to our perilous state of American legal education.

With regional offices of the Securities and Exchange Commission, the Environmental Protection Agency, and the Equal Employment Opportunity Commission, Atlanta is not just a center of international trade, it is also a center for compliance enforcement.

With the growth of multinational corporations whose businesses are not defined by geographic boundaries, government agencies and their regional offices that enforce compliance must leverage limited resources to maintain a watchful eye and enforce the laws. Today, this may mean collection of evidence abroad.

The notion of leveraging resources to enforce compliance is not new. In the 1960s and 1970s when our nation passed sweeping legislation proscribing discrimination and protecting the environment, citizens suit provisions were bolted into these laws so that average taxpayers could initiate litigation where government regulators failed to take action. And of course, at a state level, a myriad of consumer protection statutes now provides citizens with the right to seek enforcement of substantive law.

Consistent with our tradition of citizen involvement in compliance enforcement, the United States has laws that, under limited circumstances, allow whistleblowers to take action even where they have not been personally aggrieved.

Federal and State False Claims Acts allow citizens to bring suit in the name of the government where they have information that the government has sustained economic injury through fraudulent or other types of wrongful conduct.

Under the Dodd Frank Amendments to Federal Securities laws, citizens can now report claims of securities fraud to the Securities and Exchange Commission.

The IRS has regulations allowing whistleblowers to bring information about tax cheats to the attention of that agency.

Under the FCA, Dodd Frank and the IRS provisions, whistleblowers are incentivized and thus compensated for their efforts with a bounty where their information or litigation leads to government recovery.

Under the False Claims Act alone, the government has recovered billions of dollars, but more importantly FCA litigation has surfaced information about the honesty of the drug industry, the quality of care provided at nursing homes, the safety of public transportation systems, and the integrity of products integral to our nation’s defense.

In an era where consumer products are manufactured abroad and shipped into domestic ports of entry like Atlanta, and drug trials necessary to secure FDA approval are often conducted abroad with little immediate supervision from the Food and Drug Administration, whistleblowers have become a mainstay of compliance enforcement. They bring forward original information or analysis, technical expertise, and through knowledge of language and culture, the ability to report wrongdoing that would otherwise go undetected.

Yet, at the same time whistleblowers add value, there is a need to ensure that whistleblowers do not flood the agencies and the courts with claims that are not properly documented and pegged to a cognizable legal violation.

Last year, for example, the SEC received thousands of whistleblower complaints but secured relief on less than 10. While many of these complaints may lack merit, some may be falling by the wayside because of a lack of understanding on the part of the whistleblower of what the SEC needs, and failures in communications and investigation by all concerned about the strengths and weakness of these cases.

There is a need to create a better relationship between whistleblowers, their counsel, and government regulators, to the common end that serious harm to the U.S. consumers can be exposed and deterred.

Earlier this month, Emory University School of Law convened a conference of whistleblower counsel and senior government regulators as part of a first step in helping these groups focus the relationship to better enforce compliance in a global economy. This was the first of what may be many dialogues that the Law School’s Center for Advocacy and Dispute Resolution hopes to convene with these parties.

How should claims be investigated before they are brought to government regulator attention? What types of claims are of interest to the government and important for establishing compliance precedent? How can government make better use of whistleblowers and their counsel? These types of issues were vetted by conference panelists.

As little as a decade ago, such a conference would be unprecedented. Yet, the world has changed markedly. Our regulatory bodies must monitor relationships across the globe while electronic communication has exponentially expanded the sea of information from which proof of wrongdoing must be culled.

In this new era, leveraging the resources of whistleblowers is consistent with a legal tradition that for more than a century has depended on the role of average citizens in enforcing the law.

By Paul Zwier and Reuben Guttman

Also, available on line at AJC.com