Not a Cheater? Are You Sure?

Vol. 41 No. 4

By

G.M. Filisko is a lawyer and freelance writer in Chicago.

Few things are certain. Death, taxes, and the fact that, after you read Robert FitzPatrick’s harrowing story, you will want to ensure you don’t experience the same trauma.

FitzPatrick was accused of cheating while studying at The Thomas M. Cooley Law School in Auburn Hills, Michigan.

“It was for a research and writing course paper where you get the facts and have to find the correct statute and write a memo for your final grade,” recalls the solo practitioner in Berwyn, Pennsylvania. “We were told we couldn’t talk to anybody about it. Later, I was talking to a friend in the library and doing research completely unrelated to that assignment. Another student thought I was talking about that assignment and turned me in. I got a letter in the mail, probably about 10 pages long, essentially saying, ‘You have been accused of cheating; you have the option of hiring a lawyer.’”

The dean investigated. FitzPatrick wrote a letter explaining his actions, and he and the student he was speaking with met with the dean to explain themselves. “The dean was good because she resolved it quickly,” says the eventual 2011 graduate of Oklahoma City University School of Law (he transferred for reasons unrelated to the accusation). “I got a letter saying no cheating was found and no actions would be taken against me. I have saved that letter in case something ever happened.”

“But getting the accusation letter was the most stressful thing ever,” recounts FitzPatrick. “I knew it could kick me out of law school. I had already been in for a year, and I thought about how much debt I already had, the time I had invested, and the fact that I had moved from Dallas to Michigan to go to law school. I had to try to explain myself for something I didn’t do and deal with that along with the stress of finals. On top of all that, I had to worry about whether there was going to be a letter in my file that my state bar would get and then question my character and fitness to practice law. It was pretty scary.”

How do you avoid a similar accusation? Sounds simple: Don’t cheat. That, however, did not work for FitzPatrick. Here are tactics for protecting yourself and your career against an accusation—or, even worse, a finding—of cheating.

Can You Recognize Cheating?
How common is cheating in law school? “It is incredibly rare,” reports Lori Shaw, dean of students at the University of Dayton School of Law in Ohio. “I am not saying no one has ever cheated. But I have been impressed with law students in that they get they are going to be judged on their reputation as well as their exams.”

Vickie Williams, associate dean for academic affairs at Gonzaga University School of Law in Spokane, Washington, concurs. “Despite the fact that there seems to be rampant discussion about cheating, I get about 10 to 12 reports a year; of those, less than half proceed to a full charge.”

Students rarely commit “obvious” cheating, says Williams. “Instead, I see a steady amount of, shall we say, the inadvertent failure to follow a rule. I had an episode last year involving a few students in a class where the teacher’s instructions in writing on the syllabus were that students could collaborate with one person. On a later assignment, he reminded them they could collaborate but didn’t refer back to the syllabus, and a number worked in groups of threes.”

But “obvious” cheating does occur. “What I would call real cheating—that nobody would question as cheating—tends to involve using technology inappropriately,” explains Williams. “There is some old-fashioned collaboration with knowledge that it was prohibited. But the ones I see most commonly in a traditional, timed exam or even a take-home exam involve inappropriate use of technology. A professor says, ‘I want 500 words, and the page margins have to be XYZ.’ I have seen students try to gain an advantage by reducing their font size. I also had an episode a few years ago of a student who didn’t think we would notice she hadn’t logged out of the exam software. She left the exam room and went to the library, where she worked on her exam for another hour.”

Whether intentional or not, the behavior is problematic. “The things we have tended to see more than anything else are that so-and-so went over time or something like that,” Shaw explains. “It is almost like an unforced error in tennis. Students aren’t even thinking of it as cheating, but it is. Sometimes students want to say, ‘I was just negligent; that wasn’t cheating.’ But most schools have strict liability. It is not whether you intended to cheat. It is: Here is the rule. Did you follow it? If you didn’t, you have cheated.”

How to Avoid Cheating Charges
To avoid a cheating allegation, understand what constitutes cheating at your school—and in each class and on each assignment. “Students should check their school’s code of conduct or honor code,” Williams says. “Certain types of cheating will or should be defined there.”

You must also pay careful attention to the syllabus in each course, along with your instructors’ instructions for each assignment and exam. “I know it sounds really simple, but when you are talking about something like an exam or any assignment, what we call cheating is a failure to follow the proctor’s or professor’s rules,” explains Shaw. “I think that is where students get into trouble first.”

Read each assignment with a critical eye to identify danger zones. “Places that tend to be gray include the failure to properly cite an authority and whether that’s plagiarism or just sloppiness,” explains Williams. “Another is the failure to follow the professor’s instructions when the instructions are not as clear as they can be.”

Alison Monahan knows those gray areas all too well. The San Francisco lawyer and founder of The Girl’s Guide to Law School (http://thegirlsguidetolawschool.com) and two other legal websites was a teaching assistant while attending Columbia University School of Law in New York, New York. “The first one that came to mind, which I think illustrates the inherent ambiguity of what you could say is ‘cheating’ in law school, was a class with an open-book exam,” she recalls. “This particular professor waited until the very end of the semester to talk about what was allowed. What wasn’t allowed was prior student outlines, but schools often put old student outlines on file so everyone can reference them. So was it OK to take an old outline and retype it verbatim yourself? What if you changed 5 percent? What if you changed 50 percent? I remember a friend who had been planning to use an old outline deciding he would just write his own notes on it and call it his own. Was that cheating? Probably. Did I say anything? No.”

For each assignment, always ask certain basic questions:

  • Am I allowed to talk to someone about this paper? “When I was working on a paper in undergraduate school, where everybody had a different topic, I might talk to someone, but I might not garner a lot of information for my paper,” explains Shaw. “In law school, you might have 150 people writing about the same thing. So you can’t walk out the door thinking you are always going to be able to do that.”
  • If I am allowed to talk to someone, are there any topics or actions that are forbidden? “Know what level of conversation you can have,” Shaw adds. “Ask, ‘Am I allowed to show the paper to someone, and if so for what purpose?’ Professors in legal writing have strict policies on whether you can discuss or share a paper with someone else. Then students get in trouble because they don’t read the rules as carefully as they should. Mom’s a whiz at grammar, so they assume she can read it. We specifically say you can’t do that because mom’s not going to be practicing law with you. There may be stuff in research and writing that you can’t have someone read; in a doctrinal class, it may be OK. But I wouldn’t assume.”

Shaw suggests similar questions for exams. “You want to know long before you walk into the room whether it is going to be an open- or closed-book exam,” she says. “Some professors have variations on the theme. It will be closed book, but you can use your statutory supplement. When I was in law school, I wrote all over my supplements. So you should ask, ‘Am I allowed to have something written in the supplement?’ Some students have been shocked because the professor said they could use their supplement, and they didn’t realize the professor was going to hand out a clean copy when students walked in the door. When you are sitting in the exam room is not the time to ask these questions.”

FitzPatrick couldn’t agree more. “If it was an open-book, in-class exam, I would ask the professor beforehand, ‘Is it just the casebook we can use? Can I have my outline? Can I have my commercial outline?’” he recalls. “I have had a professor tell us, ‘You can bring in anything other than a live person.’ The point is that it is usually the professor’s personal preference, and you have to ask.”

Avoiding allegations of cheating is, in the end, “pretty simple,” according to Williams. “Read and familiarize yourself with your school’s code of conduct. Read all the instructions on an assignment. If you think something is gray, ask the teacher before you act. And don’t assume we won’t know if you cheat. There is a tendency for students to think we are not going to find it if they cheat. But we have seen it all, and we find it all. You are here for three years. We are here forever.”

 

The Investigation and Penalty Phases

What happens if you are accused of cheating? That depends on the process at your school. “All allegations of cheating go before our honor council, which makes a decision as to whether any policy was violated and a recommendation to the dean on how to respond,” says Lori Shaw, dean of students at the University of Dayton School of Law in Ohio. “The dean doesn’t have to follow the recommendation but does use it as a guide.”

At Gonzaga University School of Law in Spokane, Washington, Vickie Williams, associate dean for academic affairs, personally enforces the school’s code of student conduct. “What I can and can’t do is dictated by our code,” she explains. “It doesn’t allow me to have any kind of summary process to basically investigate and say, ‘You need to be more careful’ and dismiss an allegation. Once an allegation has been brought to my attention, my only option is to investigate. Then that winds up being something students have to disclose to a bar committee. So the consequences for even an allegation of a technical violation can be pretty severe.”

What happens if you are found to have violated your school’s rules? Again, that will vary depending on your school and the seriousness of the offense. “Where people have gone over time on an exam, the most common sanction has been a letter that goes to the file and a grade penalty,” says Shaw. “Then that incident comes into play during the character and fitness review. I have not seen any graduates who weren’t permitted to sit for the bar for something on that end of the spectrum. But it does make for an uncomfortable character and fitness meeting.”

The more severe and blatant the cheating, the more likely you will suffer severe sanctions, says Williams. “I have not seen expulsion even in most severe cases,” says Williams. “But in the most blatant examples, I have seen students voluntarily withdraw from school. It is going to follow them throughout school and to the bar as well, and they probably shouldn’t continue.”

Shaw says disciplinary actions are not reported to employers. That is also true at Gonzaga—unless an employer asks. “We have obligations under federal law to not give out student information unless the student has allowed us to,” says Williams. “Generally, the student would have signed a release for the employer to ask that question. Some employers do require that, and, of course, the bar does. However, I don’t recall that occurring in the four years I have been in this position.”

Perhaps that is because employers are unaware they must make such a request? “I don’t know that we do find that out,” says Johnny Loper, a partner at Womble Carlyle in Raleigh, North Carolina. “I have always assumed the system is self-policing, that if a student was convicted of some honor code violation, the school takes care of that. I have never considered that someone who is convicted of cheating would make it through the process. That may be something our firm ought to consider asking.”

Loper has also never encountered applicants who volunteered that they were found to have violated their school’s honor code. What if he did? “You would want to think long and hard about bringing someone in who has had an honor code violation,” he says. “You are certainly on your honor when you practice. It is not much of a leap to say a person who cheats during school might cheat his partners or, worse, his firm’s clients.”

 

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