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Abstract

Lawyers belong to a profession that generally takes pride in its “professional status” and is hypersensitive about its image. 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. Unfortunately, the unprofessional behavior of some lawyers has birthed a plethora of lawyer jokes and other unsavory illustrations of the practice of law. 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. Unprofessional behavior exhibited by some lawyers has led to the fair conclusion that young attorneys have failed to absorb the significance of practicing professionalism. 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?

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. 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.

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

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