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Adviser, but not 'Fiduciary'

May 13, 2009

There are varying views of where the lines are in the relationships between faculty members and the graduate students they advise. Mutual respect and trust are essential elements of such relationships, most people agree, but you’re likely to get differing answers on whether mentors should be “friends” with those they advise, and where the fault lines are in research collaborations between graduate students and their advisers.

A state appeals court in Minnesota, however, last month rejected a disgruntled doctoral student’s attempt to stretch the boundaries of that relationship by claiming that a faculty member had a “fiduciary” duty to her arising from their adviser-advisee relationship.

The court, overturning a lower court’s finding and $60,000 judgment against the adviser, ruled that Sharon L. Bender, an adjunct faculty member at Capella University, had not wronged Mary Swenson, a former doctoral candidate in organizational psychology there, when she reported Swenson’s alleged plagiarism to the university. Although the two had collaborated closely on Swenson’s dissertation, and even discussed the possibility of “entering into a business relationship” to carry out their mutual ideas, a faculty member, by nature of his or her position, always has “adverse interests” to those of an advisee, the court wrote.

“Given Bender’s roles as adjunct instructor at Capella and as member of the committee assigned to assess Swenson’s academic paper, Swenson should have known that Bender had an independent obligation to Capella that at least paralleled, if not superseded, her obligation to Swenson as it regards the dissertation’s subject matter,” the judges wrote. “Bender’s role prevented her from being bound to act only for Swenson’s benefit on all matters.”

Like many graduate faculty advisers, Bender worked closely with Swenson, according to the court record, serving as an independent reviewer on her dissertation committee for several years beginning in 2001. Capella being an online university, they worked entirely via the Internet and telephone, trading drafts of Swenson's dissertation by e-mail and discussing the prospect of co-writing a book or otherwise working together outside their adviser-advisee relationship.

In 2003, though, the two clashed over who deserved credit for "abstract theoretical concepts" they had discussed, the court found, with Swenson creating a company to market the concepts and Bender presenting "modified forms" of the theories on a Web site she shared with other Capella students.

When Swenson's dissertation committee (from which she had dropped Bender) gave her a failing grade, she complained to Capella that Bender had stolen her intellectual property and "sabotaged" her degree; Bender, meanwhile, accused Swenson of plagiarizing. (Capella, the Minnesota court noted, left the plagiarism charges up "to the legal process," but concluded that Bender had acted unethically by developing a personal relationship with Swenson.)

Swenson sued in state court, and a lower court judge ruled that Bender had breached a fiduciary duty that emerged because of the "professional relationship of trust and deference" between students and teachers, her obligation as a member of her dissertation committee "to assist Swenson with her thesis," and the fact the student "relied heavily on Bender's knowledge and authority" in her research and writing.

If those three factors create a "fiduciary responsibility" -- "the highest standard of duty implied by law," the Minnesota appellate panel wrote -- then virtually every professor who advises a student has it, because those factors "are common in virtually every Ph.D. candidate's dissertation development and review process," the court said in its opinion.

Black's Law Dictionary, the court notes, defines a fiduciary as a "person who is required to act for the benefit of another person on all matters within the scope of their relationship." But as an instructor at Capella and a member of Swenson's dissertation committee, Bender clearly had responsibilities to the institution that conflicted with any loyalties she may have had to Swenson, as the student should have recognized.

"It is undisputed that Capella faculty are obligated to report plagiarism," the court writes, and Bender also "had a duty to evaluate the quality of Swenson's academic performance. ... [T]he advisor-student relationship between Bender and Swenson is neither unique nor one in which Swenson, as student, could have reasonably assumed confidentiality in her discussions of her dissertation concepts with Bender."

"Except for the apparently substantial collaboration of ideas and undeveloped discussions about a potential future partnership, the aspects of the advisor–student relationship between Bender and Swenson appear to be common in the academic setting," the Minnesota judges said. "The features that would tend to build a trusting relationship during a dissertation process are not unusual in this case. Again, if a fiduciary obligation existed between Bender and Swenson, all disaffected Ph.D. candidates could claim a per se fiduciary relationship with their dissertation advisors and evaluators, stretching the cause of action beyond its currently recognized limits."

Even if dissertation advisers did have a fiduciary duty to their advisees, Bender would not have breached hers, the court found. Yes, the plagiarism accusation she made against Swenson -- in which Capella found enough merit to question her readiness for a doctorate -- may have "sabotaged" the doctoral student's evaluation, but it is "the type of 'sabotage' that is invited, not actionable, in the academic setting," the court concluded. "Whatever duty Bender may have owed to Swenson, it was not the duty to withhold a merited report that Swenson's dissertation included the unattributed work of others."

 

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