HONOR COUNCIL RES IPSA ARTICLE – APRIL, 2007

This article is intended to shed light on the role of the Honor Council and the procedures it follows; it should not be relied on in an actual case, or considered an authoritative statement or rights, duties and procedures under the Code.

First and foremost, all students at the University of Miami School of Law are required to adhere to high standards of ethical behavior and academic honesty as provided in the Honor Code. Second, as law students and future attorneys, we should all possess an understanding of the rules and procedures, which affect our academic lives, and possibly, our future careers in the legal profession. By adhering to the principles detailed in the Honor Code our school can be an intellectual sanctuary where scholarship and honest debate can take place in an atmosphere of tolerance and freedom. (Preamble to the University of Miami School of Law Honor Code Handbook 1998-99).

The Law School’s present version of the Honor Code, approved by Dean Doyle, has been in effect since July 13, 1987, though several amendments have been added by Deans Thompson and Lynch. The Honor Code is a twenty-two page document containing six articles and numerous sections. Article I provides for the standards of conduct, which if violated, constitute an Honor Code violation. Article II provides the framework for the Honor Council, its powers and its limitations. Articles III and IV provide pre-hearing and hearing procedures, respectively. Article V discusses review and sanctions by the Dean upon determination that the Honor Code has been violated. Article VI contains miscellaneous provisions relating to notice, time factors and Honor Code revision.

The Honor Council is an organization comprised of fourteen second year students and fourteen third year students, which seeks to preserve the high standards of conduct embodied in the Honor Code and to promote ethical awareness in the law school community. The Honor Council is responsible for interpreting the Honor Code and, when necessary, hearing cases which are brought before it. The Honor Council does not initiate complaints against students, nor does it conduct investigative inquiries into a student’s conduct sua sponte. Rather, it responds to complaints initiated by students, administrators and professors.

The Honor Council is not an arena to resolve petty personal disputes, but instead is an adjudicative body which hears only the most serious matters concerning a student’s unprofessional and/or unethical behavior. If a student has a question about a personal dispute with another student, or a potential Honor Code violation, the student has the option to speak with the Dean of Student’s Office before filing a formal complaint. There is, however, no requirement that a student consult with that office before filing a complaint. Certain law school disputes can be resolved by the Administration, rather than by the Honor Council.

When a complaint is first submitted to the Honor Council, the identity of the alleged violator is known only by the President and the complainant. The alleged violator’s identity remains confidential throughout all stages of the Honor Council proceeding. Honor Council members, other than the President, may only become privy to the identity of an alleged violator as provided by the Honor Code. (Art. I, §1.05).

The Honor Code mandates that the President of the Honor Council call an Initial Screening Panel, consisting of five council members, for a formal reading of the complaint. At this stage the Initial Screening Panel determines whether the complaint will be dismissed or whether an investigation should begin. (Art. III, §3.01(b)). As stated, the identity of the alleged violator is known only to the President at this stage. The complaint is read and considered by the panel members by the following criterion: whether the allegation(s), if true, would constitute a violation of any provision of the Honor Code. (Art. III, §3.01(b)).
If the Initial Screening Panel finds that the complaint fails to state a violation of the Honor Code, the complaint is dismissed. If the Initial Screening Panel determines that the alleged conduct would constitute only a de minimus violation of the Honor Code, the matter is referred to the Dean of Students for counseling. In all other cases, the President must appoint two investigators. (Art. III, §3.02). The investigators obtain relevant information regarding the alleged misconduct, as well as interview the alleged violator (if he or she is willing to speak), the complainant and any material witnesses believed to have information relevant to the accusation. (Art. III, §3.03).

After the investigators conduct their inquiry, their findings are presented to a Probable Cause Panel. The Probable Cause Panel is composed of five Honor Council members who did not partake in the Initial Screening Panel. At this stage the identity of the alleged violator is known only to the President and the two investigators. The Probable Cause Panel then determines whether probable cause exists that an Honor Code violation has occurred. A two prong test is applied: (1) whether the commission of the alleged act(s) if true, would constitute a violation of the Honor Code, and (2) if so, whether the investigation has revealed reasonably trustworthy information indicating that the alleged violator has committed the alleged acts. (Art. III, §3.04).

The President and the investigators are not permitted to vote on the Probable Cause determination. If Probable Cause is not found, the complaint is dismissed. If Probable Cause is found the status of the alleged violator shifts to that of an “accused.” Additionally, the case will proceed to a hearing, unless the student enters an admission of guilt as provided by the Honor Code. (Art. IV, §4.02).

A hearing by the Honor Council is procedurally analogous to a Bar Disciplinary proceeding. Nevertheless, the Code contains a number of the procedural protections seen in criminal cases, designed to provide an accused with procedural due process. The accused violator is represented by two students of his or her choice; frequently at least one will be an Honor Council member. The President appoints two Honor Council members as school advocates to represent the law school. The accused violator is permitted to confront and to cross-examine the complainant as well as any witnesses against him or her, to present witnesses and evidence on his or her own behalf and to engage in liberal discovery. (Art. IV, §4.01, §4.03, §4.04). The school advocates have the burden of proving, by clear and convincing evidence, each violation of the Code charged. A two-thirds vote of the Panel is needed for a finding of a violation. (Art. IV, §4.08).

The Hearing Panel consists of six members, usually six Honor Council members, who shall be appointed by the President. (Art. IV, §4.06). If vacancies, recusal, or service on prior panels dealing with the same matter make it impossible to form a Panel entirely from Honor Council members, non-Council members may be chosen from the student body. (Art. II, § 2.06(b), (c)). All proceedings are closed to the public and the law school community. The confidentially of the proceeding is maintained during and after the termination of the proceeding, regardless of the outcome. (Art. I, §1.05).
If a student is found to have violated a provision(s) of the Honor Code, the Dean determines which sanction, if any, should be imposed. Article V lists some of the sanctions the Dean may impose, ranging from an informal warning to expulsion from school. (Art. V, §5.02). The Honor Council neither determines nor administers punishment; rather, it is a finder of fact.

The Honor Council is faced with a noble yet difficult task: establishing an environment free from academic dishonesty and unethical behavior. It takes that responsibility very seriously. We are sometimes asked whether our student-run process just assures that students will go free. Yet many students over the years were found to have violated the Code, and received stringent sentences from the Dean, including long suspensions and even expulsion under conditions where the violator would probably never be able to practice law. We are also asked whether the process is a “kangaroo court” that always finds guilt. Yet that is also incorrect; a number of allegations have been dropped on the grounds they were frivolous, or there was insufficient evidence to support a finding of a violation, or that there was an affirmative defense. There was even a case some years ago, where the Council determined that the accuser was actually the guilty party, and had brought a bad faith claim.

While the Honor Council system, like that of our justice system, is not free from defect, it provides a fair and efficient process by which the interests of the Law School and its students are equitably balanced with those of the accused.
Enjoy an honorable semester.

*Thank you Professor Williamson and Dean Janet Stearns for your assistance with this article.