Enforcement of Law Schools' Non-academic Honor Codes: a Necessary Step Towards Professionalism?

• Publication year: 2021

89 Nebraska L. Rev.634. Enforcement of Law Schools' Non-Academic Honor Codes: A Necessary Step Towards Professionalism?

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Nicola A. Boothe-Perry(fn*)

Enforcement of Law Schools' Non-Academic Honor Codes: A Necessary Step Towards Professionalism?

TABLE OF CONTENTS

I. Introduction..........................................635

II. Necessity of Professional Code Enforcement...........637

III.Types of Law School Conduct Codes...................640
A. Academic vs. Non-Academic Student Conduct Codes .............................................640
1. Academic-Only Regulatory Codes?..............641
B. An Endorsement of Non-Academic Regulation in Law Schools.......................................642
C. Different Standards for Private and Public Law Schools ...........................................646

IV. Governing Bodies' Guidance...........................650
A. The American Bar Association's Role ..............651
B. The Association of American Law Schools' Input ...653

V. Constitutional Limitations ............................655
A. The First Amendment and Students' Rights.....................656
B. The Fourteenth Amendment and Students' Rights ....................................660
C. Deference Afforded Schools Regarding Student Behavior Regulation ...............................665

VI. Code Drafting Suggestions............................668
A. Speech Control ....................................670
B. Conduct Control...................................671
C. Guidelines for Drafting Law School Non-Academic Conduct Codes ....................................675
1. Specificity .....................................675

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2. Speech Regulation.............................676
3. Procedural Guidelines (And Consideration of Available Resources)...........................677
D. Adherence to State Administrative Procedures.....679
E. Adequate Notice of Published Codes...............679

VII. Conclusion............................................680

I. INTRODUCTION

"The campus is ... a world apart from the public square ... and [students] must abide by certain norms of conduct when they enter an academic community."(fn1)

Lawyers belong to a profession that generally takes pride in its "professional status" and is hypersensitive about its image.(fn2) Yet, there is increasing discomfort within the profession with both the state of professionalism exhibited by lawyers and the perception of a lack of professionalism held by the general public.(fn3) Unfortunately, the unprofessional behavior of some lawyers has birthed a plethora of lawyer jokes and other unsavory illustrations of the practice of law.(fn4)Lack of civility, rudeness, vulgarity, physical altercations, inappropriate dress, and poor behavior-or plain lackluster behavior (including falling asleep in court)-illustrate the growing population of attorneys whose actions lack professionalism.(fn5) Unprofessional behavior exhibited by some lawyers has led to the fair conclusion that young attorneys have failed to absorb the significance of practicing professionalism.(fn6) Hence, the question: do law schools have the responsibility to integrate professionalism "teaching" and/or training? If so, are law schools adequately fulfilling that responsibility?

Law schools effectively equip their students with substantive legal knowledge; however, intellectual pursuit should not be the sole charge of legal education. In addition to pedagogical acquisition, standards of professional conduct should be instilled: standards which may very

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well be substantially influenced by the models of those persons or institutions from whom professional competence is acquired.(fn7)

Law schools provide aspiring lawyers with their first exposure to the appropriate standards necessary to preserve the spirit of the law and the profession.(fn8) As such, law schools have not just the opportunity, but arguably the responsibility, to develop attitudes and dispositions consistent with professionalism.(fn9) Throughout the tenure of a lawyer's professional life, law schools are the singular institutions with the opportunity, the resources, the institutional capacity, and the leverage to effectuate meaningful training in professionalism. It is therefore critical that they should have the right to promulgate and administer reasonable rules and regulations to fulfill that responsibility.

One critical method in fulfilling this responsibility is through the enactment and enforcement of student honor codes. Awareness and conformance to rules and regulations governing the appropriate and acceptable scope of behavior for students pursuing law degrees will provide practice and reinforcement for professional behavior in subsequent practice. Currently, most American law schools have an honor code or some variation thereof.(fn10) The underlying bases for the codes are to provide instruction and education as to acceptable types of behavior and to advise of specific consequences for violation or non-conformance to the governing rules of behavior.(fn11)

As law schools strive to enforce their codes of student conduct, enforcement has called into question the legal standing of the schools,

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since enforcement affects the fundamental rights of students. Consequently, this Article will address the following question: to what extent can law schools fulfill their responsibility and opportunity to enforce behavioral codes-specifically codes governing non-academic conduct-with a goal of improving professionalism? Through analysis of law schools' enforcement capabilities, this Article will suggest a practical framework by which law schools can promulgate and enforce codes and rules affecting students' non-academic conduct.

Part II of the Article will briefly address the necessity of professional code enforcement. Part III will discuss the nomenclature and types of law school conduct codes in section III.A, address the unclear delineation between academic and non-academic codes in section III.B, endorse enforcement of non-academic conduct in law schools in section III.C, and discuss the potentially different standard for private law schools versus public law schools in section III.D.

Part IV will discuss law schools' governing bodies' guidance (or lack thereof) regarding appropriate rules and regulations governing student conduct. Part V will address constitutional constraints in enacting and enforcing student codes, with a focus on First Amendment implications in section V.A, the application of the Fourteenth Amendment in section V.B, and the deference afforded to institutions of higher learning regarding regulation of student behavior in section V.C. Section V.C also proposes that law schools be allowed more latitude in enacting and enforcing student codes within the constraints of the united States Constitution.

Part VI provides suggestions for drafting Codes of Conduct in keeping with current jurisprudence differentiating between speech control in section VI.A, and conduct control in section VI.B. Section VI.C suggests general guidelines for drafting law school conduct codes which specifically address behaviors consistent with the ideals of professionalism for lawyers.

II. NECESSITY OF PROFESSIONAL CODE ENACTMENT

The etymology of the word "profession" comes from the latin word professionem, meaning "public declaration"-originally referring to taking the vows of a religious order.(fn12) Prior to the nineteenth century a true professional needed no written instruction in how to behave.(fn13)Professional ethics was about "character, honor and dishonor, virtue and vice" and had nothing to do with formal codes of conduct.(fn14) over the years, however, the need for specific written guidance regarding

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appropriate behavior norms has been recognized by professional groups resulting in various codes and oaths.

Codes of ethics governing different professions "commonly require that adherents must," at the least, "be good citizens and act in a way that is beneficial to society."(fn15) Good citizenship, however, is insufficient for one who is deemed a professional. Professionals are generally held to a higher moral standard than the average citizen.(fn16) Oaths and codes governing various professions have therefore been propounded in an effort to exact behavior commensurate with this higher moral standard.(fn17)

Lawyers in the United States are governed by the Model Rules of Professional Conduct (MRPC) which were created by the American Bar Association in 1983(fn18) and replaced the prior Model Code of Professional Responsibility created by the American Bar Association in 1969.(fn19) Prior to 1983, the Canons of Professional Ethics, dating back

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to 1908, was the primary written documentation for lawyer regulation.(fn20)

All these professional codes erect explicit standards as a condition for those who have fulfilled the educational and practice requirements for inclusion in the legal profession. Violation of the codes carry consequences ranging from reprimand to disbarment. The requirements and potential ramifications for violation embodied in these codes highlight the importance of compliance with the codes as a benchmark of a successful lawyer.

However, simply providing an individual with a set of requirements without providing guidance for compliance could render the rules inapplicable and...