March 2008
Featured Disciplinary Case
Topic
A law professor who cheats in an academic environment is subject to disciplinary sanction
Summary
Originally from California, Ken Kress graduated from UCLA with a BA in 1978. He later garnered an MA, and then attended the Boalt Hall School of Law at the University of California, Berkeley. After receiving his law degree in 1985, he accepted a teaching position at the University of Iowa College of Law in Iowa City. Four years later, he earned a doctorate in jurisprudence and social policy from Boalt and was promoted from associate professor of law to full professor at Iowa. Over the course of his academic career, Kress lectured on a multitude of topics, ranging from torts to jurisprudence to mental health law. He published in a number of different substantive areas (See e.g., Kenneth J. Kress, Why No Judge Should Be a Dworkinian Coherentist,” 77 Texas Law Review 1375 (1999)), but his primary publishing focus was in the field of mental health law (See e.g., Kenneth J. Kress, Must the Criteria for Initiating Coerced Treatment or Commitment be the Same as the Criteria for Ending Coerced Treatment or Commitment? Behavioral Science & the Law, Vol. 24 (2006).
Toward the end of the end of his law school’s 2004 spring semester, the students in his classes were asked to complete a faculty evaluation of Kress. In order to protect the integrity of the faculty evaluation process, Iowa, like most law schools, requires students to complete their evaluations outside the presence of any faculty member. Student evaluations are managed in a confidential manner and strict protocols are put in place to ensure that faculty members never learn which student said what about them. At Iowa, faculty members are instructed to have their secretary administer the evaluations, collect them, and present them to the administration in order to avoid any direct faculty member involvement in the process. At Iowa, scores on student evaluations are a factor in determining who will be appointed to faculty chairs. Going into the 2004 spring semester evaluation period, Kress was under the impression that he had been treated shabbily by the law school. He believed that he should be a faculty chair, but had not yet received one.
Kress had an afternoon class that semester. Evaluations for that class were administered properly on the designated day and without incident. He had a second class, a mental health law seminar consisting of ten students that met in the evening. As to that class, his secretary had gone home for the day. Kress arrived at the seminar as scheduled. At the evening seminar, Kress decided to pass out the evaluations himself. Prior to disseminating them, however, he gave a ten-to-fifteen minute speech about the importance of the evaluations, stressing that his job was “on the line.” Kress attributed his problems at the law school to jealousy among the faculty. His demeanor appeared normal, he spoke at a normal rate, he did not exhibit frenzied excitement or seem confused, his speech was not disordered or rambling, and he seemed to express logical thoughts.
After handing out the evaluations, Kress, against university policy, remained in the classroom. His research assistant, however, urged him to leave, and Kress eventually complied. After Kress left, the students engaged in a discussion about his conduct. Several students indicated that they were going to fill out the evaluations honestly, regardless of Kress’s comments. The students agreed that Kress’s research assistant should collect the finished evaluations and return them to the administration in the morning, a common practice when classes are held in the evening. When the students left the classroom after completing their evaluations, they found Kress in the immediate area outside, giving rise to concern that Kress may have overhead their discussion about the propriety of his conduct. When Kress’s research assistant told Kress that he would drop off the evaluations with the secretary in the morning, Kress directed that he and his assistant would take the evaluations up to the secretary’s office that evening. This conversation took place in front of the other students, who exchanged concerned glances with each other. Kress then escorted his research assistant to his secretary’s office, where Kress unlocked the door, and instructed the research assistant to leave the evaluations inside. His research assistant hoped that Kress would leave the building with him, but Kress remained behind. When the research assistant left the building, he met classmates and a further discussion of their concerns over the evaluation process ensued. The next day, a student informed an Associate Dean about Kress’s actions. Thereafter, the law school administration conducted a confidential investigation. The investigation determined that three neutral or unfavorable evaluations were discarded and replaced with favorable versions, two were altered in order to raise the scores, and two evaluations were unchanged. The effect of the changes was to raise Kress’s composite teaching effectiveness score on a five point scale from 2.86, a relatively low score that might attract the attention of law school administrators, to 4.86, a very high score that few members of the faculty were able to achieve. When confronted with the results of the investigation, Kress did not claim a medical or mental defense.
Thereafter, the law school entered into an agreement with the errant professor whereby Kress was placed on paid sick leave at the beginning of the 2005 school year. While on sick leave, he was not to teach or have any “employment duties” at the school, although the university promised to provide him with an office on campus, secretarial help, and 300 hours of research-assistant time at public expense. Further, he was promised cash payments of $203,400. The university also agreed to deposit $22,600 into his retirement account and provide him with health insurance through June 2008. He promised to resign effective January 9, 2006, and release the state from any legal claims arising from his employment at the university. Apparently, the university entered into the settlement agreement to avoid the expense and time of prolonged proceedings before the Faculty Judicial Commission, a thirty member panel that handles ethics complaints.
The Iowa Supreme Court Attorney Disciplinary Board charged Kress with two violations of the Iowa Code of Professional Responsibility for Lawyers: DR 1–102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and DR 1–102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). After an evidentiary hearing, the Iowa Supreme Court Grievance Commission sustained the allegations and recommended that Kress be suspended from the practice of law for a period not less than one year. Later, the Iowa Supreme Court engaged in a de novo review and concluded that the professor violated DR 1–102(A)(4). He was suspended indefinitely with no possibility of reinstatement for three months with conditions on any possible readmission.
During the course of the disciplinary proceeding, Kress admitted that, in light of the evidence, he must have tampered with the evaluations. He asserted, however, that at the time of the wrongdoing, he suffered from mental and physical illnesses that excused or mitigated his actions. Specifically, he noted that, after going with his research assistant to his secretary’s office, he woke up in his own office, either from sleep or from a “delirious loss of consciousness”, after hallucinating about two dogs. He told disciplinary authorities that he believed that conspirators had succeeded in sending rays into the students’ minds, changing their neurons and altering their answers on the evaluations. Kress further testified that in light of the mind-changing rays, he believed that it was only fair for him to change the evaluations back, so they would be correct. He further believed he was confronted with a matter of life or death. He said that he hallucinated about being in prison, where a medieval jury was laughing at him for failing to save the world from the parade of horribles that was coming. Changing the evaluations thus was transformed from a personal matter to a universal struggle between good and evil. After recounting this delusionary experience, Kress maintained that he had no recollection of actually altering the evaluations. A diabetic who also has bipolar disorder, Kress recalled checking his blood sugar in his office that night and the test yielded a score of 565, the highest level he had ever personally recorded. At the disciplinary hearing, there were dueling experts as to the veracity of his claim of impairment. An expert called by the Attorney Disciplinary Board noted that, while delirium was plausible, it was “not probable that the incident in question was due to delirium.” Citing the Diagnostic and Statistical Manual of Mental Illness IV definition of delirium, she noted that Kress was able to converse intelligibly with a classroom of students, wait in a purposeful manner while the evaluations were being completed, accompany his research assistant to the office with the evaluations, read the evaluations, remove the ones that reflected poorly on him, and systematically manufacture or alter evaluations to produce a desired result.
Kress argued that, to prove that he violated DR 1–102(A)(4), the Attorney Disciplinary Board had to establish by a convincing preponderance of the evidence that he intended to commit wrongful conduct. He contended that, in light of his “unique and unprecedented circumstances”, he could not form the level of intent necessary to commit am ethical violation. In the alternative, he argued that his health status mitigated any sanction. The Court agreed that intent is indeed a required element in order to establish a misrepresentation under DR 1–102(A)(4). The intent requirement is, however, satisfied where the evidence shows that the actor intends the natural and logical consequences of his or her acts. The Court did not find it necessary to reach the theoretical question of whether intent can ever be defeated in a disciplinary proceeding by a claim of total unconsciousness because the Justices concluded that Kress did not act in a totally unconscious fashion sufficient to vitiate intent. Indeed, the total picture of his behavior on the evening in question suggested that he engaged in intentional, conscious conduct. The Court ruled:
To the extent there is any possibility that an attorney may claim unconsciousness to vitiate the intent element of the prima facie case in disciplinary cases involving dishonesty, fraud, deceit, or misrepresentation, the record must demonstrate a total and complete unconsciousness and not merely an assertion that the conduct in question was caused by or was a result of mental or other illness….Based on our review of the record, we find that Kress’s health status obviously played a role in his behavior and should be considered in mitigation. While his acts remain intentional, and thus subject to sanction, we believe the record shows that Kress was experiencing an episode of mental health instability, along with poorly controlled diabetes. These conditions undoubtedly clouded his judgment…
Iowa Supreme Court Attorney Disciplinary Bd. v. Kress, ___ N.W.2d ___, 2008 WL 682391 (Iowa March 14, 2008).
