Dean Miles appointed a Task Force to review possible changes to the Council on Professional Conduct and Rules of Professional Conduct for Law Students. As you know, student orientation introduces students to this document, which appears in the Announcements. The Task Force presented its report to the Student Affairs Committee this month and the draft is posted on the Student Bar Association website below. The faculty expects to vote on the document at the April 19 meeting. Student’s comments or questions can be sent to Professor Wortham, Chair of the Task Force, at email@example.com. They also can be raised with the SBA to be passed on to the Task Force. The University General Counsel and Compliance Officer are reviewing the draft in this comment period so it is possible that his comments might result in some language revisions. The final draft to the faculty on April 19 will include some editing suggestions that the Task Force has received from the Student Affairs Committee and others, but thus far, none of those were significant changes.
The following is a cover memo prepared by the Task Force that summarizes the proposed changes and the reasons behind the proposals.
As described in Part I or the Rules document, the idea of an honor code and process was a student initiative in 1981-82. The initial impetus for the SBA’s proposal of an honor system was at least in part to allow for student self-proctored exams, which could be checked out and completed at any point in the exam period. While things never evolved to that point, many parts of our academic system rely directly, e.g., take-home exams, or indirectly upon our honor framework in which we expect that community members act honesty and professionally and “play by the rules.”
The Task Force believes that the honor system has served us well as a framework of integrity, trust, and mutual respect in the academic, co-curricular, and extracurricular spheres of the law school. We think the current framework of Rules of Conduct and a continuing education system appropriately mirror the lawyer conduct system of which students will later be a part.
Our proposed redraft leaves key components of the existing framework largely unchanged. The Task Force suggests amendments to the process for considering possible violations, which more accurately reflect the actual practice as it has evolved in the past 30 years. We also suggest changes to the investigation and hearing process for adjudicating violations, which we believe are warranted by experience with the current system and external changes in the environment in which the system functions. We propose reconstituting the Council on Professional Conduct as a joint student and faculty body with a first responsibility for considering what education and administrative initiatives will be most effective in encouraging professional conduct within our community. The Council also will serve as the body from which hearing panels will be drawn if a Rules violation must be adjudicated, but the Rules are reframed to reflect the reality that adjudicatory hearings are a somewhat unusual occurrence, not the central day-to-day focus of our honor system.
In a previous amendment process, an SBA task force proposed adding the Honor and Professional Ethics Education system evidenced in the current Rules including a “continuing education” requirement and election of education members to the Honor Board. While the Task Force agrees with the importance of a continuing and law school wide concern for professional education, there have been problems with the ethics education structure in the current Rules. The bifurcation with two types of members has not worked well. In some years there were no candidates for the education member slots. Furthermore, an effective ethics and professional education program requires a combined effort of students, faculty, and staff, and the existing students-only framework for the Council does not provide for that joint effort.
The proposed draft consolidates former Part VIII on honor and professional ethics education into Part III, which sets out the composition and functions of the Council on Professional Conduct. Under the proposal, the Council on Professional Conduct would be reconstituted with six student and three faculty members. Additional faculty and staff members working in the honor process would be ex officio members.
Revised Part I restates the purposes of the professional conduct system as
(1) articulating the rules and standards comprising the framework in which the educational, co-curricular, and extra-curricular programs can function on expectations of honesty and trust;
(2) encouraging an educational and administrative system that promotes behavior in accordance with that framework;
(3) providing mechanisms for remediation for students who fall short of the standards but do not evidence dishonesty;
(4) establishing the process for fair resolution of cases where dishonesty is at issue.
The rephrased Part I and II and reconstituted Council on Professional Conduct in Part III seek to shift from a paradigm primarily described as adjudicatory to the broader conception stated above, which more accurately reflects the reality of the 30 years of operation of the honor system. Experience has shown that the problems that have arisen under the Rules have much more been ones of miscommunication, student confusion about meaning of the rules, mental health or learning disability complications, and other situations that did not evidence dishonesty. Most past matters have been resolved through some type of remediation or settlement and did not result in adjudicatory hearings.
The current Part V on “Procedures” has been split into proposed Parts V, VI, and VII reflecting the reality of the pre-hearing process and alternatives that have evolved in practice. Part V describes the roles of participants in investigation and resolution of possible Rules violations, the first investigative states, and the alternatives to a hearing. Proposed Parts VI and VII describe the process if a matter goes to hearing with some amendments addressing various procedural problems and questions that have arisen in the past.
Three core parts of the system, Community Member Responsibilities (Part II), Violations (Part IV), and Sanctions (renumbered Part VIII) remain largely unchanged. The assignment of general responsibilities and list of possible sanctions would remain substantially as they are. The Task Force found the violations section generally to provide clear and comprehensive notice to the community about expected behaviors. We propose only a few amendments, including provisions regarding issues that have arisen in exam administration and a new unauthorized use provision applying to recordings of classes and other presentations.
As in the current system, the Dean is charged with designating a faculty or professional staff member, the Dean’s Designate, to receive questions about possible violations and investigate the circumstances. Proposed Part V codifies the types of resolutions without a hearing that have constituted the majority of outcomes in the existing honor process.
In the current system when a matter is being considered for hearing, investigation becomes the responsibility of a student Honor Board investigator. A matter is heard by the remaining student members of the students-only Honor Board. Some experiences and some changed circumstances explain our recommendation to move away from a student investigator/prosecutor and students-only hearing board to investigation and case presentation by a bar-admitted faculty or staff member and a joint student and faculty hearing panel. (The proposal provides that the Dean’s Designate undertaking investigation and case preparation can draw on student members of the Council for assistance with these functions.) We also recommend that resolutions short of referral for hearing be the Dean’s Designate’ s decision, not a joint decision between the Honor Board Chair and the Dean’s Designate. The following provides some of the reasons for these proposed changes.
--Student members are elected annually and normally serve at most two years and often one. This does not provide for a continuity of experience in administration of the system and similarity of treatment of like matters over the years.
--Serious matters require investigative and hearing administration that is beyond the experience and expertise of most law students. While faculty advisors to the Honor Board have been able to assist, the ultimate responsibility can be a complex and very time-consuming one. It is the university who ultimately is legally responsible for actions taken in the disciplinary process. As in many other dimensions of life, the possibility for litigation arising from alleged errors in the process has grown. The Task Force believes that those responsible for setting up and administering the process should be employees of the university as well as people with some experience as lawyers. While relatively few past cases have raised questions of dishonesty warranting an adjudicatory hearing, a subset of those have been “settled out” with a less severe sanction than might have been warranted because of CUA General Counsel’s ultimate concern about procedural shortcomings. The proposed system provides for a three students and two faculty member hearing panel chaired by a faculty member. This preserves the important role for students in hearing evidence about violations, deliberating on violations, deciding guilt, and proposing sanctions. But it assigns responsibility for preparation and presentation of cases and administration of the hearing process to bar-admitted faculty or staff. Such functions often would be carried out in consultation with the CUA General Counsel to assure that all legal functions are being handled properly and prudently.
--Increasingly questions of possible violation have overlapped with questions of mental illness and disability accommodations. Involving students in preliminary investigation and decisions about “pre-trial diversion” in such matters may entail difficult questions of student privacy. Student Honor Board members sometimes have been unfamiliar with the medical issues involved in diagnosing disability and accommodation as well as the University’s obligations under the Americans with Disabilities Act and have been inclined to see matters in which disability findings are involved as ones involving a competitive disadvantage of one student over another.
--A number of honor code questions have arisen during exam period or at the end of the year as summer vacation is beginning. Student honor board members often are not available at this time, but matters need to be resolved. (The proposed draft allows matters to proceed with a faculty-only hearing panel if a matter must be resolved at a time when students are not available.
--The Task Force was considerably aided by the work of our able research assistant, 2L Mickey Jett, who reviewed the honor systems of 14 law schools as well as 50+ articles about honor processes. (At the TF’s direction, he looked at local schools, some prominent Catholic schools, and a couple of schools known to have carefully considered their codes.) This revealed that student investigators and student-only adjudication boards are unusual rather than the norm. Of the 14 schools studied, the large majority were joint student and faculty processes. Only 2 of the 14 had a completely student-based honor committee. Two other schools had a completely faculty process.
With the change to a system in which the hearing panel chair and “prosecutor” would be bar-admitted faculty members, we propose dropping the restriction that counsel representing a student at a hearing cannot speak at the hearing but is limited to an advisory function. This restriction related to a structure with a student prosecutor and student adjudicatory board. The draft provides that a student can represent themselves or choose to be represented at all stages of the process by another student, outside counsel, or a faculty member who agrees to serve as an advisor or a representative. The Task Force recommends that the Council sponsor training for faculty willing to serve as student advisors so students could be given a list of faculty who have indicated a willingness to so serve, but a student would remain free to approach anyone the student wished about possible advice and representation. The draft does not contemplate that any faculty member would be required to serve in this role, but the Task Force would like to encourage faculty members to be willing to do so.
Most of the comparison set of schools also used a faculty appeals panel rather than appeal to the full faculty. Part IX proposes such a system.
The following summarizes significant changes proposed in chronological order by Part numbering in the proposed draft.
The shift in focus on statement of purpose and function and scope of the honor process and Council on Professional Conduct is described above. The rest of I. A and B remain as they are in the current code. Amendments to I.C highlight that there are violations of rules and standards for law school conduct that may not entail dishonesty subject to the Rules of Conduct but still can result in sanctions with consequences.
II.B of the current code describing student rights when charged with a violation has been incorporated in Parts V, VI, and VII about the process for investigating and hearing charges of violation. The remaining II.A on community member responsibilities has been reformatted but remains substantively as it is in the current code.
As described above, parts III and VIII of the existing code have been combined into Part III describing the composition and function and selection of members of the Council on Professional Conduct, selection of the Dean’s Designate, and the professional conduct education program.
Most of the violations section stays as it is. The following are the changes that go beyond word smithing.
--Violations always have meant to be limited to conduct that is dishonest, reflects a lack of trustworthiness, or otherwise raises question of the student’s fitness to become a lawyer. While generally well drafted, the current violation language was not completely consistent in spelling out the intentional or reckless mens rea that would constitute a violation. Some language has been revised to more clearly encompass intentional actions or actions taken with a conscious disregard or existence of a circumstance, e.g., use of the words of another against accepted rules of plagiarism, or consequence, e.g., damaging the property of another.
--A new IV.B.3. has been added to encompass issues with electronic devices in the exam room.
--A new IV.C.8. is proposed to state clearly that unauthorized recording or use or distribution of recordings is a violation. Megan LaBelle helped the Task Force with some concerns on the intellectual property dimensions of this language.
Parts V, VI, and VII
The changes to description of initial investigation and possibilities for case resolution short of a hearing found in Part V are described generally above. Parts VI and VII track much of what is in the existing rules but add some specifics about questions that have arisen in the past.
There are no substantive changes to Part VIII, which is Part VI in the current Rules.
The shift from a full faculty to a faculty appeals panel is described above.
The current code has only Part V called “Procedures.” As described above, the proposal separately describes the initial investigation phase and resolutions short of a hearing in Part V while Parts VI and VII concern matters that re referred for a hearing. Confidentiality was discussed in existing V.R, but now is addressed in a new separate Part X where confidentiality throughout the process can be addressed more comprehensively.
An amendment would include mention of the process used this time of a committee focused on Rules revision.
Notification of the Law School about Criminal Charges and Convictions
This notice always has appeared immediately after the Rules and a failure to abide by its requirements is a violation of the Section I.A.8 of the Rules. The Task Force recommends moving it to a new section I.D. as another instance of “Additional Rules.” This location seems less likely to be overlooked than at the end of the Rules.
I. Purposes and Scope of Authorlity; additional rules
The Council on Professional Conduct (hereinafter “the Council”) and the Rules of Professional Conduct for Law Students (hereinafter “the Rules” or “the Rules of Professional Conduct”) have several purposes. The Council’s education efforts and the Rules provide the CUA Law academic community a framework for conducting its programs on a basis of trust in the integrity of all participants. The Council’s efforts and the Rules give notice of specific conduct to be followed by members of the law school community. The Council’s function in implementing professional conduct education and the Rules prepare law students for participation in a self-regulated profession in which lawyers must comply with an analogous set of standards. The Rules also provide a process for resolution of possible violations of the conduct standards with provision for education, remediation, and imposition of sanctions as appropriate.
B. Function and Scope
The CUA honor process was adopted upon a student initiative in 1982 and ratified by both the faculty and the student body with subsequent amendments. The Rules, as amended in 2012, recognize that the law school’s functioning should be built on a foundation of trust and integrity, combined effort of the law school students, faculty, and staff in cooperation with the parent university. These Rules require law students, faculty, and staff to report possible violations by law students. The effectiveness of the Rules depends on their implementation by every member of the law school community.
The general standards for honesty and professional conduct set forth in this document should be used for guidance by faculty and staff as well as by students. Allegations of misconduct by faculty or staff are not handled through the Council on Professional Conduct but rather through the Dean’s Office or other university procedures. Any member of the law school community who has reason to believe that a member of the faculty or staff has engaged in dishonest or unprofessional conduct should bring that conduct to the attention of the Dean’s Office.
These Rules apply to student conduct that occurs between the time a student first enrolls at the law school and the student’s graduation from the law school. If a violation is discovered after a J.D. degree has been conferred, the Dean shall determine what, if any, further action will be taken and the appropriate body to hear any evidence with regard to the matter. Action could include revocation of the J.D. degree. If an issue arises with regard to conduct occurring prior to enrollment at the law school, e.g., a failure to disclose a matter on the application, the Dean will determine whether the matter should be referred to a Council Hearing Panel or to another body. Action could include rescission of admission.
These Rules, and the duty to report violations of them, relate only to conduct that raises questions about the honesty, trustworthiness, or fitness of a student to become a lawyer. In interpreting “honesty, trustworthiness, or fitness,” the law school may refer to the interpretation of this standard by state and federal courts and bars, although no precedent from any particular court or bar will be considered binding. Nothing in these Rules shall be construed to prevent an instructor from adjusting a grade downward or entering a failing grade for a student who has committed an act of academic dishonesty in a course taught by that instructor.
C. Additional Rules and Procedures
The violations proscribed by these Rules in Section IV are not the only rules and standards governing law students. Administrators and faculty members make rules and enforce standards of conduct for law students appropriate to their responsibilities. Serious violation of such rules and standards may raise questions regarding a student’s trustworthiness and fitness to be a lawyer and result in consequences that could include a failing grade, exclusion from a course or clinic, a report of the conduct to bars to which the student applies, or suspension/expulsion from the law school. Violations, which could result in such consequences, include actions that disrupt the law school-learning environment, interfere with administration of the academic program, or involve significant neglect of matters entrusted to the student. Law students also are subject to the University Code of Student Conduct. The Code of Student Conduct is set forth on the University policy website.
D. Notification to the Law School about Criminal Charges and Convictions
1. The law school application requires applicants to list any pending criminal charges or convictions on matters other than minor traffic violations. Violations regarding driving under the influence of drugs or alcohol and reckless driving are not minor traffic violations and must be reported. This requirement to notify the law school of all pending criminal charges and convictions other than minor traffic violations continues from the time of application through graduation. Most state bars ask each law school to provide information about whether graduates of the school who have applied for bar membership have been involved in any criminal matters or law school disciplinary complaints. The same inquiry usually is made of the applicant.
2. When a student notifies the Dean’s Office of a criminal charge or conviction, the Dean’s Office will assess whether the conduct may be a violation of the Rules of Professional Conduct for Law Students, the matter suggests a serious threat of possible harm to another member of the law school community, or it otherwise raises a question about the student’s honesty, trustworthiness or fitness to become a lawyer. If these questions are answered negatively, the Dean’s Office will remind the student that the student may be required to report the complaint on the bar application and alert the student of the possible consequences of nondisclosure during that process. If one of the questions above is answered affirmatively, the law school may initiate action that could affect the student’s enrollment status.
II. RESPONSIBILITIES OF LAW SCHOOL COMMUNITY MEMBERS
A. Student Awareness and Compliance
Each law student must read and comply with the Rules and commit himself or herself to maintaining the integrity of the legal profession. See Section III.E providing that all entering students affirm in writing that they have read Parts I-IV of the Rules by the end of the orientation period.
B. Community Members’ Responsibility to Report Violations
Each member of the law school community must report any conduct he or she has reason to believe violates these Rules, unless the person receives the information in the context of a confidential communication. See Section V.B for the specifics of this obligation and V.B.7 for definition of confidential communication.
C. Understanding Pertinent Rules for Academic and Co-Curricular Activities
1. Each person making an assignment or giving an examination in a law school course or co-curricular activity (hereinafter an “assigning person”) has the responsibility to provide an unambiguous definition of “unauthorized assistance” to all participants in a timely fashion. Unless a student’s resulting work constitutes the definition of Cheating in Section IV.B, and in the absence of express instructions to the contrary, students are permitted to meet in groups to discuss reading assignments, to study for examinations, and to prepare for simulations, oral presentations, or other clinical work. Unless prohibited by the teacher’s definition of unauthorized assistance, students are permitted to use the words or ideas of another without attribution in writing for in-class examinations.
2. Each student has a responsibility to seek clarification of any perceived ambiguity in any assigning person’s definition of unauthorized assistance with regard to examinations, course assignments or co-curricular activities (see Section IV.B.1) and with regard to authorized recording of classes or other law school presentations or use of recordings (see Section IV.C.8).
3. Each student has a responsibility to study generally accepted rules on proper attribution of source material, on the use of proper punctuation or indentation to signify use of the words of another, and to check all written submissions for any improper use of the words or ideas of another.
III. COUNCIL on professional conduct; Dean’s Designate; professional conduct education
The Council on Professional Conduct shall consist of three faculty members and six students. The Dean shall appoint the faculty Council members, and the Dean shall designate one of the three faculty members as the Faculty Co-Chair of the Council. See Section III.C on selection of student members including the designation of a Student Co-Chair of the Council. The Dean’s Designate and any other staff or faculty member with responsibility for professional conduct education or review of possible violations of the Rules of Professional Conduct will serve as ex officio members. The ex officio members will assist the Council by providing information on the types of problems that arise in administration of the Rules or otherwise in the law school that might suggest a need for education of community members or administrative changes to promote greater adherence to the Rules.
1. Professional Conduct Education
The Council on Professional Conduct is charged with planning and implementing a curriculum of education on standards of professional conduct for law students relevant to the operation of the law school and to standards that apply to members of the legal profession. Planning this professional education program should include an identification of the issues that are the most important to communicate to students. This education effort may include communication with faculty on such matters as their clarity of directions on “unauthorized assistance” and defining plagiarism, as well as other ways that faculty can help promote personal integrity and education in professional conduct. The Council should also solicit suggestions from faculty and administrators on ways honor questions arise, e.g., in exam administration, and consider suggestions on how to avoid such situations.
After considering what types of education in honor and professional conduct should be available to students during their time at the law school, the Council shall create an agenda for the academic year. The Council shall participate in presentations made at the orientation for new students and cooperate with administrators and faculty in planning and offering at least two programs specific to issues of particular concern to first-year students. Such topics would include issues that arise in the context of research assignments, writing assignments and exams, law review and journal writing competitions, and summer legal employment. The Council also should plan and implement at least two additional honor education programs on topics important to professional conduct as law students or as practicing lawyers. The Council shall establish criteria to determine what professional conduct programs, in addition to those presented by the Council, can be used to satisfy the continuing professional conduct education requirements specified in Section III.F.
Student members of the Council are expected to play an active role in the identification of content, along with the administration of programming the honor education requirement.
2. Hearing Panels
If an evidentiary hearing on a violation of the Rules is necessary, a panel of three students and two faculty members (hereinafter a “Hearing Panel”) will be drawn from the Council. A Hearing Panel will be chaired by a Council faculty member (hereinafter the “Hearing Panel Chair”). The Council shall establish internal procedures to determine which members should sit on a particular hearing panel, choice of the chair for a panel, and when recusal of a Council member in a matter would be appropriate. If the need for a timely hearing arises at a time when student members are not available to serve, a Hearing Panel comprised of at least three faculty members may adjudicate the complaint. If there are an insufficient number of faculty members from the Council to comprise a Hearing Panel available, the Dean may appoint substitute faculty members for the panel. The need for such alternative compositions of a Hearing Panel are most likely to arise if it is necessary to conduct a hearing during the exam period or the allegation concerns the behavior of a student about to graduate, but other circumstances also may arise requiring an alternative composition. See Section V.C.2 regarding time limits for resolving allegations and the option for Respondent or Dean’s Designate to petition for an alternative hearing panel if there is a concern re timely resolution of a matter.
A student member of the Council may be asked to serve with the Dean’s Designate in his or her investigation for a complaint appearing before a Hearing Panel. See Section V.D.4.b.
C. Election and Term of Student Members
The six student members of the Council will be elected or appointed in accordance with the SBA Constitution or By-laws. The Constitution and/or By-laws shall provide for designation of one of the six students as the Student Co-Chair of the Council. Any vacancies that occur should be filled promptly in accordance with the SBA Constitution or By-laws. Newly-chosen members should attend Council meetings from the time of their election although the official terms will begin on the final day of classes of the spring semester. Newly-chosen members also may be available to serve on a Hearing Panel if an insufficient number of student members are able to serve. As soon as feasible in the second semester, two additional first- year members will be elected or appointed in accord with the SBA Constitution or By-laws. The first year members should attend all Council meetings and participate fully in discussion about the education functions of the Council, but they are not eligible to be appointed to a Hearing Panel.
D. The Dean’s Designate
The Dean of the law school will designate one or more bar-admitted professional staff members, deans, or faculty members to serve as the Dean’s Designate. The Dean’s Designate will perform the duties and responsibilities set out in Section V of these Rules. If the appointed Dean’s Designate is unable to serve, the Dean shall choose one or more alternate bar-admitted professional staff member, dean, or faculty member to fulfill the duties of the Dean’s Designate.
E. Professional Conduct Orientation
A copy of this document constituting the Council on Professional Conduct and the Rules of Professional Conduct will be given to each entering student and shall be enforceable as part of The Catholic University of America Columbus School of Law Announcements. By the end of orientation period, all entering students must sign a statement saying that they have read Parts I-IV of the Rules. Failure to sign this statement is not a defense to an alleged violation of these Rules. An “entering student” is a 1D, 1E, or transfer student, as well as visiting or LL.M. students during the period they are enrolled in courses at the CUA campus.
F. Continuing Professional Conduct Education
All students must attend six professional education programs during their time in law school. These may be programs planned and implemented by the Council as provided in Section III.B.1, or programs designated as honor education programs under criteria set by the Council as provided in Section III.B.1. The Council shall work with the law school administration to develop a system for recording compliance with these requirements, with student Council members assisting in ways that include the gathering of attendance records at programs. The Council shall set criteria for compliance with the attendance requirement by alternative means, e.g., certification of listening to recordings of sessions. An online system for students to check their compliance with this requirement will be maintained by the administration in accord with the Council’s criteria. If a student fails to complete the required six honor education programs, this failure will be noted in the student’s academic record and will be reported to the bars to which the student applies.
The following conduct violates these Rules of Professional Conduct if it is dishonest, reflects a lack of trustworthiness, or otherwise raises a question about a student’s fitness to become a lawyer. For the purposes of this section, a reckless state of mind refers to a conscious disregard of a substantial risk that the circumstance described exists or a related or resulting consequence will result.
A. Lying or Failing to Disclose
Lying is any act (or omission) in which a student intentionally, or with reckless disregard for the truth, deceives another by stating an untruth, by misrepresenting material facts, or by failing to disclose. Conduct constituting this offense includes, but is not limited to, the following:
1. Representing the words or substance of another’s work as one’s own in any writing submitted for academic credit or written for a co-curricular activity with intent to deceive.
2. Representing the words or substance of another’s work as one’s own in any writing submitted for academic credit or written for a co-curricular activity with reckless disregard of commonly accepted definitions of plagiarism.
3. Failing to disclose past disciplinary complaints under these Rules resulting in the finding of a violation to a member of the faculty or any instructor whom the student asks to act as a reference for that student.
4. Omitting material information about one’s own academic record, work experience, or law school activities.
5. Furnishing any person with false or misleading material information about the academic record, work experience, or law school activities of another member of the law school community.
6. Furnishing false or misleading material information to any instructor, any other administrative office of the university, or to a student or nonstudent administrator of a co-curricular or extracurricular activity. “Any other administrative office” of the university includes the Admissions Office, the Financial Aid Office, the Career and Professional Development Office; and the Public Safety Department.
7. Omitting material information with the intent to deceive or mislead any instructor, any other administrative office of the university (as defined in the previous paragraph), or a student or nonstudent administrator of a co-curricular or extracurricular activity.
8. Failing to report a criminal charge to the Dean’s Office, as described in Section I.D, within a reasonable time after the charge has been made, which normally would not exceed ten days.
Cheating is an act (or omission) of fraud or deception by which the student intentionally attempts to gain or give an unfair advantage or acts in reckless disregard of these possibilities. Conduct constituting this offense includes, but is not limited to, the following:
1. Receiving, using, or providing unauthorized assistance in connection with an examination, a course assignment, or a co-curricular activity.
2. Failing to follow instructions, particularly regarding start and stop time, or material allowed within the examination.
3. Accessing an electronic device during an examination. For the purposes of this section, an electronic device is one that that can be used to communicate, store data, or access information, except computers properly equipped with exam software used by CUA. This includes phones, iPods, MP3 players, etc. All electronic devices should be turned off and put away during examinations. No such device may be accessed for any purpose during an exam.
4. Failing to turn in the examination questions, scratch paper, and any other material distributed for use within the examination, at the end of the examination.
5. Attempting to satisfy the requirements of a course by submission of work that was done, in whole or in part, for another course in the law school or at some other educational institution, or for an employer or an externship, unless the instructor has been notified of the overlap and has authorized it.
C. Stealing, Damaging, or Unauthorized Use of the Property of Another
Stealing, damaging, or unauthorized use of the property of another is any act by which a student takes, hides, tampers with, or damages any property of the university, the law school, or any member of the university community or otherwise uses the property in a matter that has been forbidden. Such violation occurs when the student acts intentionally to deprive the owner of use of the property, intentionally fails to abide by rules for the property’s use, or acts with reckless disregard of the possibility that such consequences may occur. Conduct constituting this offense includes, but is not limited to, the following:
1. Removing, without authorization, any property belonging to the law school, to the university, or to any member of the university community.
2. Using the facilities of the law school, including computing and telecommunication systems, in a prohibited manner or without paying any appropriate fees.
3. Misusing or abusing computer resources of the university or law school, including hacking, as outlined in the Statement of Ethics Using Computers as published online in the university’s Student Handbook.
4. Using the property of another student, a staff member, or a faculty member without receiving permission and/or paying any appropriate fees.
5. Vandalizing or hiding library books or other property.
6. Tampering with the settings on the computers in the computer labs.
7. Taking notes, books, computer printouts of study and research materials other students without authorization.
8. Making, using, or distributing class or other law school presentation recordings in an unauthorized manner. The proscriptions in this subsection and provision for notification intended to protect against violations of intellectual property or other rights concerning the unauthorized production, use, or distribution of class or other presentation recordings. They also reflect concerns that everyone whose comments might be recorded should be notified of that possibility. Note: Anyone conducting a class or presentation should seek to assure that those present realize that the class or presentation is being recorded.
a. Students may record a class or other law school presentation only with the express permission of the faculty, staff member, or other person conducting the class or presentation. Recording without this express permission is unauthorized.
b. A professor or administrator may make audio or visual recordings of a class or other law school presentation available but restrict use. If such restriction is imposed, any use beyond that expressly permitted is unauthorized use.
c. Unless otherwise expressly permitted by the faculty member or other person conducting the class or presentation, recordings are solely for the academic use of students at Catholic University Law School.
d. Students permitted to record a class per a disability accommodation must abide by the law school and Catholic University's regulations and policies concerning such recordings. The Catholic University Disability Services Guideline can be accessed at http://policies.cua.edu/studentlife/disabilitysvcs/disability.cfm. It is unauthorized use for students to make or distribute such recordings or excerpts from such recordings available to anyone other than CUA community members authorized to access the recordings for academic use.
D. Failing to Report a Violation of the Rules of Professional Conduct
Knowingly failing to report within a reasonable time, to the Dean’s Designate or to either Council Co-Chair, any conduct by a student that the potential reporting student has reason to believe violates these Rules. For a clarification of the reporting standards, see Section V.B.
Harassing is any act in which a student intentionally and falsely uses these Rules against another or intentionally retaliates against another who is acting under these Rules. Conduct constituting this offense includes, but is not limited to, the following:
1. Falsely charging another student with violation of these Rules; or
2. Retaliating against a person who reports an alleged violation of these Rules; or
3. Retaliating against a person who provides information to the Council.
Contempt is any act (or omission) in which a student intentionally interferes with the proper administration of these Rules, or acts in reckless disregard with respect to the possibility of such interference. Conduct constituting this offense includes, but is not limited to, the following:
1. Lying in any action or proceeding under these Rules; or
2. Violating an obligation of confidentiality imposed by these Rules; or
3. Failure, without just cause, of any student other than the Respondent to provide evidence or testimony relating to an alleged violation, when requested to do so by the Dean’s Designate, the investigator, the Respondent, or the Council/Hearing Panel. “Just cause” may include the existence of a privileged relationship or a confidential communication as defined in Section V.B.7 of these Rules; or
4. Obstructing compliance with or enforcement of these Rules by any means.
G. Additional Violations
If conduct is alleged that would fall within this paragraph, the Dean may refer the complaint to the Council or deal with it in some other manner.
1. Discretionary referrals can be made in cases of any conduct that occurs in connection with the academic program, administration, or extracurricular or co-curricular programs of the law school. To be actionable, this conduct must be dishonest, reflect a lack of trustworthiness, or otherwise raise a question about a student’s fitness to become a lawyer. “Fitness to become a lawyer” is interpreted by the standards normally applied by the bar in admission of lawyers to practice.
2. Any conduct, when it occurs on the university campus or when it occurs during an officially sponsored university event, that would constitute an intentional tort as defined by the law of the United States or the District of Columbia and that threatens or harms the property, health, or safety of another member of the university community. An “intentional tort” includes assault, battery, intentional infliction of emotional distress, and false imprisonment. “An officially sponsored university event” includes any event that is officially sponsored by the university, the law school, or one of their subordinate agencies or organizations (e.g., moot court).
3. Any conduct, regardless of where it occurs, that would constitute a crime as defined by the laws of the United States or jurisdiction within the United States in which it occurs and that threatens or harms the property, health, or safety of another member of the university community. See Sections I.D and IV.A.8 regarding students’ obligation to notify the law school regarding pending criminal charges or convictions.
V. ROLES, RESPONSIBILITIES AND PROCESS REGARDING POTENTIAL
1. “Reporting Student” refers to a student reporting a potential violation of these rules.
2. “Potential Respondent” refers to a student about whom a report is made, before a formal complaint has been filed.
3. “Respondent” refers to a student accused of committing a violation of these rules.
4. “Faculty Advisor” refers to a faculty member who has agreed to advise a Respondent or Potential Respondent during the pre-hearing stages of a complaint. A faculty member may choose to limit his or her role to advising the student about the procedures under these rules or may also agree to negotiate with the Dean’s Designate. A faculty member who agrees to advise a Potential Respondent or Respondent should specify which of these duties he or she is willing to undertake. A faculty member also may agree to serve as the Respondent’s Representative throughout the proceeding, as set forth in the next paragraph. These Rules provide a general waiver of conflict of interest based on a faculty member’s status as a university employee, but faculty members must consider whether anything about their individual circumstances would constitute a personal conflict.
5. “Respondent’s Representative” refers to the person who represents a Potential Respondent or Respondent and acts as his or her legal counsel, consistent with the Rules of Professional Conduct that govern attorneys. A Respondent may be represented by a faculty member who has agreed to accept that responsibility, private counsel retained at the Respondent’s own expense, or by a CUA law student. The possible roles of a Respondent’s Representative include, but are not limited to, investigating the allegations against the Respondent, advocating and negotiating on the Respondent’s behalf with the Dean’s Designate, preparing for an adjudicatory hearing, calling and questioning witnesses at an adjudicatory hearing, and, where necessary, being the Respondent’s advocate when a Hearing Panel considers sanctions or upon appeal of a Panel’s findings and recommendation.
6. “Administration Liaison” means an individual designated by the Dean to receive and maintain reports from the Dean’s Designate or Hearing Panel Chair regarding alleged violations of these Rules and the disposition of those alleged violations.
B. Duty to Report a Suspected Violation
1. Each member of the law school community must report, to the Dean’s Designate or to either Council Co-Chair, any conduct by a student that he or she has reason to believe violates these Rules. See Section IV for an enumeration of those violations. This report must be made within a reasonable amount of time after the community member becomes aware of the possible violation. A “reasonable amount of time” is usually considered not to exceed five (5) business days (not including the day of the suspected violation); however, a failure to report an alleged violation within this five-day period is not a basis for dismissal of the complaint unless the delay has significantly jeopardized the Potential Respondent’s ability to defend against the allegation.
2. A member of the law school community who suspects a student has committed a violation of these rules should avoid identifying the suspected student to other members of the law school community, except for consultation with regard to guidance on what is necessary to fulfill the obligation to report provided in the previous paragraph. See Section X for further instruction regarding confidentiality.
3. If the reporting person is an instructor or assigning person, as defined in Section II.C.1, that person ordinarily should discuss the alleged violation with the Potential Respondent before reporting it to the Dean’s Designate. This gives notice to the Potential Respondent and allows him or her an opportunity to explain the alleged misconduct. Similarly a student may, but is not required to, discuss a suspected violation with the Potential Respondent before reporting a suspected violation. If that discussion convinces the community member that the Potential Respondent has not violated these Rules, the community member need not report the complaint.
4. Failure by a student to report a violation is itself a violation of these Rules. See Section IV.D.
5. If a student reports the potential violation to either Council Co-Chair, the Co-Chair shall refer the Reporting Student to the Dean’s Designate. At the Reporting Student’s request, the Council Co-Chair may accompany the Reporting Student when he or she meets with the Dean’s Designate.
6. When a Reporting Student informs the Dean’s Designate of a potential violation of these Rules, the Dean’s Designate may withhold the Reporting Student’s identity from the Respondent unless and until fairness to the Respondent requires that information be disclosed.
7. Generally, if information leading to the belief that a Potential Respondent has committed a violation of these Rules was received in the context of a confidential communication, this information should be held in confidence. However, in some instances there may be a legal duty to report such conduct, e.g., sexual harassment, or discretion to do so because of a threat of significant physical harm to a member of the law school community. A confidential communication is one for the purpose of giving or receiving advice on whether to report a violation of the Rules, or how to respond to a complaint involving the Rules. Except as provided in the following sentence, any member of the law school community may engage in such confidential communication with another member of the law school community with the expectation that no duty to report will arise from that communication. Council members, including ex officio members as defined in Section III.A, play important roles in consideration of violations of the Rules and, because of those responsibilities, are prohibited from entering into a confidential communication concerning complaints involving these Rules. Such responsibilities are in conflict with holding information about possible violations of the Rules confidential.
C. Time Limits for Resolving Allegations Against a Student
1. The Dean’s Designate, the Council, and the Hearing Panel shall fulfill their responsibilities as set out in Section V of these rules as expeditiously as is reasonable and fair under the circumstances of each case. In doing so, they will take into consideration such exigencies as any pending legal proceedings relating to the complaint, the availability of witnesses or other participants in the process, the academic calendar, and any other circumstances that may arise in the course of resolving the complaint.
2. If either the Respondent or the Dean’s Designate believes that circumstances will preclude a timely resolution of the complaint by a Hearing Panel, that individual may petition the Dean to refer the complaint to a Hearing Panel of three or more faculty members for resolution. The Dean will grant or deny the petition in a timely manner.
D. Preliminary Action; Alternatives Prior to a Hearing
When a possible violation of the Rules is reported to the Dean’s Designate, the Dean’s Designate’s options and responsibilities are enumerated below. In deciding among these options and fulfilling these responsibilities, the Dean’s Designate may consult with the Administration Liaison or with other faculty members or administrators.
1. No violation: The Dean’s Designate will determine whether the alleged conduct would constitute a violation of the Rules. If the alleged conduct would not constitute a violation of the Rules even if proven, the Dean’s Designate will terminate the complaint, but may refer the complaint to the Dean for whatever other action the Dean may consider appropriate.
2. Criminal conduct: If the alleged conduct would constitute a crime under the laws of the jurisdiction in which it was allegedly committed, the Dean’s Designate may urge the reporting student to report the complaint to law enforcement officials, or the Dean’s Designate, with the approval of the Dean, may report the complaint to the authorities.
3. Pending criminal investigation or proceeding: If the alleged conduct is the subject of a criminal investigation or proceeding, the Dean’s Designate, with the approval of the Dean, may postpone taking any further steps under these Rules until the criminal investigation or proceeding has been resolved. This does not limit the authority of the law school to suspend the Potential Respondent or to take other action necessary to protect the health, safety, or welfare of the Potential Respondent or others.
4. Preliminary investigation of allegation: If the Dean’s Designate determines that the alleged conduct, if proven, would constitute a violation of these Rules, the Dean’s Designate will ascertain whether credible evidence exists to support the allegation. To do so, the Dean’s Designate shall conduct a preliminary investigation, which may include the following:
a. The Dean’s Designate may speak to any member of the law school community or anyone outside the law school community, who may have relevant information about the complaint.
b. The Dean’s Designate may request that a student member of the Council be appointed to assist the Dean’s Designate in the investigation of the complaint as referenced in Section III.B.2.
5. Informing the Potential Respondent; initial meeting; subsequent meetings: The Dean’s Designate need not inform the Potential Respondent of the allegation during the preliminary investigation, unless and until fairness to the Potential Respondent requires it. If it becomes necessary for the Dean’s Designate to contact the Potential Respondent, the Dean’s Designate shall inform the Potential Respondent that an allegation has been made about his or her conduct, and direct the Potential Respondent to meet with the Dean’s Designate as soon as possible. This initial meeting shall be conducted in accordance with Section V.E. Subsequent meetings with the Potential Respondent shall be conducted in accordance with Section V.G.
6. Termination of investigation: If the Dean’s Designate concludes as a result of his or her investigation that the alleged violation of the Rules is not supported by credible evidence, the Dean’s Designate will terminate the complaint.
7. Lapse of judgment: If the Dean’s Designate concludes that credible evidence exists that the Potential Respondent engaged in the alleged conduct, but that it is reasonably likely that this conduct reflected poor judgment rather than intentional or reckless disregard of the conduct proscribed by these Rules, the Dean’s Designate may attempt to reach an agreement with the Potential Respondent on a remedial program for the Potential Respondent that will reduce the likelihood of similar lapses in judgment in the future.
a. Such remedial measures may include, but are not limited to, one or more of sanctions 6-12 in Section VIII.A. of these Rules. See VIII.C regarding bar reporting.
b. If the Dean’s Designate and the Respondent are unable to agree upon a settlement, the Dean’s Designate shall refer the complaint to the Council for the appointment of a Hearing Panel, as set forth in Section V.J.
8. Credible evidence of a violation: If the Dean’s Designate concludes that credible evidence exists that the Potential Respondent has violated these Rules, the Dean’s Designate shall so inform the Potential Respondent and the Potential Respondent’s Faculty Advisor or Representative. At this time the Dean’s Designate will inform the Respondent of the name of all witnesses to the alleged violation, unless the Dean’s Designate has substantial concern that a witness will face some sort of significant harm.
9. Settlement: The Dean’s Designate will inform the Respondent and the Respondent’s Faculty Advisor or Representative of the possibility of settling the complaint without a hearing, as set out in Section V.I.
10. Complaint: If the complaint is not settled, the Dean’s Designate shall file a complaint with the Council as per Section V.J.
11. Postponement: In compelling circumstances, the Dean’s Designate, in the best interests of the Potential Respondent, the law school, or both, may submit a report to the Administration Liaison recommending that action on the complaint be postponed until the Dean’s Designate believes it is appropriate to proceed. Compelling circumstances may include, but are not limited to concerns for the physical or mental health of the Potential Respondent or a key witness, exigencies caused by the academic calendar, the temporary unavailability of a person whose presence and participation is important to a fair resolution of the complaint, weather, or other conditions that disrupt transportation. If the Administration Liaison concurs, the complaint will be postponed accordingly.
12. Report of actions taken under Section V.D: If a complaint is disposed of by any of the methods outlined in Section V.D, the Dean’s Designate shall submit a written report to the Administration Liaison detailing the identity of the Potential Respondent, the nature of the allegation, method of disposal, and the reasons for that disposition. The Dean’s Designate also may suggest that the Dean consider whether the complaint requires further action by the law school administration.
E. Dean’s Designate’s First Meeting with Respondent or Potential Respondent; Rights of Respondent or Potential Respondent
1. If it becomes necessary for the Dean’s Designate to contact the Potential Respondent, the Dean’s Designate shall inform the Potential Respondent in writing that an allegation has been made about his or her conduct and direct the Potential Respondent to meet with the Dean’s Designate as soon as possible.
2. At the Dean’s Designate’s first meeting with a Potential Respondent, the Dean’s Designate shall not attempt to question the Potential Respondent about the allegation and also shall inform the Potential Respondent, verbally and in writing, of the following:
a. The Potential Respondent is under no obligation to make any statements at this time. The sole purpose of this meeting is to inform the Potential Respondent of the following:
i. A complaint has been reported to the Dean’s Designate concerning the Potential Respondent’s conduct.
ii. Anything the Potential Respondent says may be considered as evidence in any subsequent proceeding.
iii. The Dean’s Designate is investigating the complaint.
iv. The nature of the complaint.
v. His or her rights, as a Potential Respondent, as set forth immediately below
b. The Potential Respondent has the right to be advised by a Faculty Advisor, as that term is defined in Section V.A.4, or to be represented by a Respondent’s Representative, as defined in Section V.A.5. The Dean’s Designate may provide the Potential Respondent with the names of faculty members who have expressed a general willingness to serve as Faculty Advisor, but the Potential Respondent is free to approach other faculty members as well.
c. At all subsequent meetings that the Potential Respondent has with the Dean’s Designate, or anyone else who participates in the investigation, negotiation, or adjudication of the complaint, the Potential Respondent has the right to be accompanied by his or her Faculty Advisor or Representative. The Faculty Advisor or Representative may speak and negotiate on behalf of the Potential Respondent.
d. After the filing of a complaint, all communications between the Council and the Respondent shall be through the Respondent’s Representative unless the Respondent has elected in writing to proceed pro se.
e. If the complaint proceeds to the Hearing Panel, the Potential Respondent will have the rights set forth in Section V.G.
F. Right to Refuse to Answer Questions or Participate; Inferences
At the first meeting between the Dean’s Designate and the Potential Respondent, the Dean’s Designate shall also inform the Potential Respondent:
1. Until the Potential Respondent has had the opportunity to secure advice or representation, no inferences will be drawn from his or her decision not to make a statement concerning the complaint.
2. The Potential Respondent has the right to refuse to meet with the Dean’s Designate or a student investigator, to refuse to answer questions asked the Dean’s Designate, a member of the law school faculty or administration, or a student investigator, and to refuse to attend, participate in, testify at or answer specific questions at any Hearing Panel proceeding. After the Potential Respondent has had the opportunity to secure advice or representation, however, the Dean’s Designate and Honor Panel may draw inferences from any such refusal.
G. Subsequent Meetings Between the Dean’s Designate and Respondent or Potential Respondent
1. After the Potential Respondent has had an opportunity to obtain a Faculty Advisor or a Representative, as defined in Section V.A, the Dean’s Designate shall request the Potential Respondent to discuss the complaint with the Dean’s Designate. This request shall be in writing, with a copy sent to the Potential Respondent’s Faculty Advisor or Representative if the Dean’s Designate knows the identity of the Potential Respondent’s Advisor or Representative. This request will inform the Potential Respondent:
a. The Potential Respondent has the right to refuse to respond to questions or participate in the procedures established by these rules, but that inferences may be drawn from such refusal, as set out in Section V.F.
b. The Potential Respondent’s Faculty Advisor or Representative may accompany the Potential Respondent to all meetings with the Dean’s Designate or the Dean’s Designate’s student investigator and may speak on behalf of the Potential Respondent.
2. At such subsequent meetings, the Dean’s Designate may question the Potential Respondent concerning his or her alleged violation of these Rules and, if appropriate, discuss the possibility of settling the complaint as set forth in Section V.I.
1. A Potential Respondent or Respondent may propose a settlement to the Dean’s Designate, which may include an admission of facts constituting a violation of the Rules and proposed remedial measures or sanctions. No statement of fact by the Potential Respondent or Respondent made in the context of settlement negotiations will be admissible in any hearing on the complaint before the Hearing Panel.
2. If, at any time before or during an adjudicatory hearing before a Hearing Panel, the Respondent and the Dean’s Designate arrive at a settlement acceptable to both parties, the settlement disposes of the complaint, and no further action is required by the Hearing Panel.
I. Referral for Hearing
1. If the Dean’s Designate finds credible evidence of a violation that raises a substantial question about a student’s honesty, trustworthiness, or fitness to become a lawyer, and the Potential Respondent and Dean’s Designate have not arrived at a settlement, the Dean’s Designate shall file a written complaint with the Council.
2. The complaint will include:
a. All provisions of Section IV that the Respondent is suspected of violating;
b. The date, time, and place of the alleged violation, to the extent known;
c. A summary of the suspected conduct and circumstances; and
d. The names of known witnesses, unless the Dean’s Designate has substantial reason to believe that disclosure of a witness’s identity at that time will expose the witness to significant harm.
3. Upon receipt of a complaint, the Council shall appoint a Hearing Panel to conduct an adjudicatory hearing.
4. Within five (5) business days of filing a complaint with the Council, the Dean’s Designate shall send to the Respondent, by certified mail and by email, (1) a copy of the complaint, and (2) a statement of the Respondent’s rights, as set forth in Section V.E. If the Dean’s Designate is unable to determine an address at which the Respondent receives mail, the Dean’s Designate shall make reasonable efforts to notify the Respondent by other means.
5. As provided in Section III.B.2, the Dean’s Designate also may request that a student member of the Council be appointed to assist in his or her investigation, negotiation, or adjudication of the complaint, if one has not already been appointed.
6. Discussions at the first meeting between the Dean’s Designate and the Respondent are governed by Section V.E. Subsequent meetings are governed by Section V.G.
7. Supplemental or amended charges:
a. The Dean’s Designate may revise, amend, or add additional charges to the complaint at any time prior to the final hearing before the Hearing Panel, subject to the approval of the Hearing Panel Chair.
b. The Dean’s Designate shall notify the Respondent and the Respondent’s Advisor or Representative promptly in writing of any proposed revision or amendment of the complaint. The Respondent and the Respondent’s Advisor or Representative are entitled to appear before the Hearing Panel to argue against permitting the amendment or additional charges, and to request a delay if such is necessary to prepare a defense to the amended or additional charges.
c. The Hearing Panel Chair shall approve such amended or additional charges, unless approving them would jeopardize the Respondent’s right to a fair hearing or would cause such a substantial delay in the hearing that the ability of the Council to resolve the complaint would be compromised.
8. Where circumstances require it, and with the approval of the Dean, an allegation of a violation of the Rules may proceed before a Hearing Panel made up solely of faculty members as per Section V.C.2.
J. Disclosure to Respondent Prior to an Adjudicatory Hearing
1. Prior to an adjudicatory hearing, if the Dean’s Designate has not already done so, the Dean’s Designate shall provide the Respondent with the following information:
a. Identity and contact information for any witness who may appear at the hearing, unless a witness has convinced the Dean’s Designate that he or she has a credible fear of retaliation should the Respondent learn the witness’ identity before the hearing;
b. Copies of any documents that may be presented at the hearing; and
c. Any information or evidence known to the law school administration, Dean’s Designate, or Council that may tend to exculpate the Respondent or mitigate the degree of his or her wrongdoing.
2. This information shall be provided to the Respondent within a reasonable amount of time before the hearing.
K. Summary Dismissal
Prior to a referral to the Council for assignment to a Hearing Panel, if the Dean’s Designate concludes there is no credible evidence of a violation of which the student is accused, the Dean’s Designate may dismiss the matter. If the matter has been referred to a Hearing Panel under V.J, the Dean’s Designate may recommend to the Hearing Panel that the complaint be dismissed. The Hearing Panel shall accept this recommendation, barring extraordinary circumstances. When a case is dismissed in either of these circumstances, the Dean’s Designate shall prepare a written report of his or her factual findings and the reasons for dismissal. A copy of the report shall be sent to the Respondent and the Administration Liaison. The Dean’s Designate will determine whether a report is sent to the person who reported the incident.
VI. HEARING PROCESS
A. Hearing Panel
The Hearing Panel shall be comprised and chaired as set forth in Section III.B.2. The Hearing Panel Chair may request that another member of the faculty advise him or her at the hearing with regard to matters of procedure.
B. Timing of Hearing; Bifurcation of Proceedings; Recording
1. The Hearing Panel shall conduct an evidentiary hearing on the complaint in a timely manner, while affording the Dean’s Designate and Respondent time to prepare for the hearing and to have all necessary participants present at the hearing.
2. The Hearing Panel may bifurcate the proceeding to address the factual allegations against the Respondent before addressing the issue of an appropriate sanction.
3. The Hearing Panel shall make an audio or video recording of the hearing. If a video recording is made, the parties should agree with the Hearing Panel Chair on where the camera will be focused, and if there is not agreement, the Hearing Panel Chair will decide. Ordinarily, the recording will be erased if the Hearing Panel concludes that there has been no violation of these Rules, and if the dismissal is not appealed. If a violation is found, the recording will be retained in the Dean’s office for five years after the date of the Respondent’s departure from the law school unless the Dean determines that it should be kept for a longer period.
C. Quorum; Participation in Deliberations
A quorum of the Hearing Panel, consisting of the Hearing Panel Chair and at least two student members, must be present at any proceeding before the Hearing Panel unless the Dean’s Designate and the Respondent both consent to the taking of evidence with fewer members being present.
D. Respondent’s Refusal to Participate
See Section V.F on Respondent’s right to refuse to participate but inferences that can be drawn from the refusal.
E. Exclusion of Witnesses; Confidentiality
1. Generally, witnesses may not be present at the hearing except at the time of testimony. This provision does not apply to the Respondent, who may and should hear all of the testimony given at the hearing.
2. A party may request that a witness remain in the hearing room after testifying. The Hearing Panel Chair shall grant that request if satisfied that good reason exists for it, provided the witness agrees to adhere to the rules governing confidentiality of the proceeding; however, if that party recalls that witness for further testimony after hearing other testimony or evidence, the Hearing Panel may discount that witness’s further testimony to the extent they think appropriate.
3. During the hearing, witnesses outside the hearing room shall not discuss their testimony. See Section VIII for further instruction on rules of confidentiality.
F. Presentation and Exclusion of Evidence
1. The Dean’s Designate shall present the evidence against the Respondent.
2. The dean’s designate may offer evidence of prior misconduct by the respondent, subject to the Honor Panel Chair’s discretion to exclude it if it is of marginal relevance or is unduly prejudicial.
3. The Respondent’s Representative may participate fully in the proceeding. (Hereinafter, reference to the “Respondent” shall also mean the Respondent’s Representative.)
4. The Dean’s Designate and Respondent may each call witnesses and may cross-examine witnesses called by the other party. The Hearing Panel may question those witnesses. Hearing Panel members may also call and question their own witnesses, whom the Dean’s Designate and Respondent may cross-examine.
5. The Hearing Panel may consider and rely on any evidence it considers credible, including hearsay. Formal rules of evidence will not apply at the hearing, but the parties and Hearing Panel members may look to the Federal Rules of Evidence for guidance where appropriate.
6. The Hearing Panel Chair may exclude evidence that he or she considers cumulative or unnecessarily time-consuming, irrelevant, patently unreliable, or which creates a risk of unfair prejudice that substantially outweighs its legitimate probative value.
7. At the close of the presentation of the evidence against the Respondent, the Respondent may move to dismiss the accusation on the ground there is no credible evidence supporting the charges. The Respondent may argue in favor of the motion. The Dean’s Designate may argue against it. The Hearing Panel shall decide the motion by a majority vote. If there is no majority vote, the motion is denied.
8. If the Respondent’s motion is denied, the Respondent may then call witnesses, introduce documents, and present other evidence.
9. The Respondent may elect to testify or not testify at the hearing. If the Respondent does testify, he or she may refuse to answer specific questions. The Hearing Panel may draw inferences from the Respondent’s decision not to testify or refusal to answer specific questions, to the extent that they believe such refusal is relevant to the issues before them.
10. Where appropriate, subject to the Hearing Panel Chair’s discretion, each side may present rebuttal witnesses or evidence.
11. After each side has rested, the Dean’s Designate and the Respondent may each make a closing argument.
VII. HEARING PANEL DETERMINATION
A. Burden of Proof
1. The Hearing Panel may find that the Respondent has committed a violation of these Rules only if a majority of the Hearing Panel is satisfied that the evidence has established the violation by clear and convincing evidence.
2. Clear and convincing evidence is that which persuades a majority of the Hearing Panel members eligible to vote that it is “highly probable” that a violation of the Rules has occurred, or leads the majority to have a “firm belief or conviction” that a violation of the Rules has occurred.
B. Inference From a Refusal to Answer Questions or Participate in a Hearing Panel Proceeding
The Honor Panel may consider the Respondent’s refusal to answer questions or participate, as set out in Part V.F, but such refusal is not, in itself, sufficient to satisfy the clear and convincing evidence standard.
C. Effect of a Tie Vote
If the vote of the Hearing Panel Members is evenly divided, this constitutes a finding that no violation of the Rules has occurred.
D. Determination of Violation and Sanction
1. If the Hearing Panel concludes that the Respondent has violated one or more provisions of these Rules, it should then proceed to determining an appropriate sanction.
2. If the proceeding was bifurcated as per Section VI.B.2, the Hearing Panel shall schedule a hearing at which the parties may be heard on the issue of appropriate sanction.
3. The Hearing Panel’s determination of a sanction for violation of these Rules may take into consideration any sanction already imposed on the Respondent for the conduct at issue, e.g., a failing grade.
4. If the Hearing Panel members cannot agree on an appropriate sanction or sanctions, the vote of the majority shall be the sanction decision. If no majority decision can be reached, the Dean shall decide the sanction to be imposed.
E. Records of Hearing Panel Proceedings; Written Report to the Dean
1. A record of each Hearing Panel proceeding should be retained until the complaint is resolved.
2. Once a Hearing Panel has reached a decision, the Hearing Panel Chair shall submit a written report to the Dean setting forth the Hearing Panel’s factual findings and conclusions as to whether or not the Respondent violated any of these Rules, and if so, the sanction to be imposed. Where appropriate, the report may recommend how the sanction will be administered or supervised. This report shall be completed within a reasonable period of time following the Hearing Panel’s final determination of findings and sanction.
F. Action by the Dean
1. The Dean will transmit to the Respondent by certified mail and by email the Hearing Panel decision, and, subject to the appeal process, impose the recommended sanction.
2. If a Hearing Panel concludes that a student has committed a violation of these Rules, the decision of the Hearing Panel and the Dean’s letter of transmittal shall be placed in the Respondent’s academic file for future reference, subject to the appeal process set forth in Section IX.
3. The Dean will determine whether a report is sent to the person who reported the incident.
A. Possible Sanctions
Upon finding that a student has violated these Rules, the Hearing Panel may recommend that the law school impose one or more of the following sanctions:
2. Suspension from course registration and attendance.
3. Disciplinary probation for one or more semesters.
4. Public or private letter of reprimand, which would be placed in the student’s academic file.
5. Denying credit in a course in which the violation occurred.
6. Suspension from participation in extracurricular or co-curricular law school activities.
7. Informal letter of admonition, which would not be reported to the bar to which a student applies for admission unless required by that bar.
8. Requirement that the Respondent take a course or write a paper that would assist the Respondent in avoiding subsequent misconduct.
9. Service to the law school or the community to compensate for the harm caused by the violation or to impress upon the Respondent the significance of the violation.
10. Requirement of restitution or reimbursement for damage to or theft of property.
11. Public or private apology to any person harmed by the violation.
12. The Hearing Panel and the Dean’s Designate may propose other reasonable sanctions, designed for remedial or rehabilitative purposes, which are not included in this list. Before such a remedial or rehabilitative sanction is imposed, it must be approved by the Dean’s Designate for consideration of such issues as feasibility of administration.
B. Sanction Imposition
If there is no appeal, the Dean shall impose the sanctions determined by the Hearing Panel consistent with any relevant policies and procedures of The Catholic University of America.
C. Bar Report
If one or more of the sanctions numbered in Section VIII.A.1-5 are imposed, the law school will report the imposition of the sanction to any bar to which the Respondent applies for admission. If one or more of the sanctions in Section VIII.A.6-12 are imposed, the law school will report the imposition of the sanction to the relevant bar, if reporting is:
1. Required by the particular bar, or;
2. Recommended by the Hearing Panel, or;
3. Deemed appropriate by the Dean’s Office.
A. Right to Appeal
Either the Respondent or the Dean’s Designate may appeal the decision of the Hearing Panel, the sanction imposed, or both, by submitting a notice of appeal to the Dean’s Office in writing. The notice shall specify in detail the grounds for appeal.
B. Submitting a Notice of Appeal
The notice of appeal provided in the previous paragraph shall be submitted in writing to the opposing party within thirty (30) calendar days after issuance of the Hearing Panel’s decision. If an appeal is not filed within thirty (30) calendar days, the sanction imposed in the Hearing Panel’s decision becomes final.
C. Appeal Panel
The Dean shall designate three faculty members to comprise an Appeal Panel.
D. Review of Hearing Panel Decision
1. The Appeal Panel shall decide the appeal after reviewing the record before the Hearing Panel, the Hearing Panel’s final written decision, and the written submissions of parties to the appeal.
2. The Appeal Panel shall give due deference to the Hearing Panel’s factual findings on evidence credibility and overturn such determinations only if the Appeal Panel finds them to be against the substantial weight of the evidence.
3. In exceptional circumstances, the Appeal Panel may allow the Respondent or the Respondent’s Representative and the Dean’s Designate to make a presentation to the Appeal Panel before the appeal is decided. If the Appeal Panel grants a request for an oral presentation, the Appeal Panel shall notify the Respondent or Respondent’s Representative and the Dean’s Designate of the date, time, and place of oral hearing.
E. Appeal Panel Decision
In the event of an appeal, the Appeal Panel may:
1. Affirm the findings of fact and sanction recommended by the Hearing Panel.
2. Affirm the findings of fact of the Hearing Panel but impose a different sanction, which may be more or less severe than that recommended by the Hearing Panel.
3. Remand the case to the Hearing Panel for a new full or partial hearing.
4. Overturn the findings of fact and the sanction recommended by the Hearing Panel and enter its final decision.
The Appeal Panel’s decision shall be final and the Respondent and Council shall be notified by certified mail within a reasonable time, normally not exceeding thirty (30) calendar days.
F. Sanction Imposition
After a determination upon the appeal, the Dean shall implement imposition of the sanctions consistent with any relevant policies and procedures of The Catholic University of America.
Participants in the investigation, attempted settlement, or adjudication of an alleged violation of these Rules, and those who report or have witnessed an alleged violation should regard the complaint as confidential and shall reveal information relating to it only to the extent that such disclosure seems reasonably necessary to the investigation, attempted settlement, adjudication of the complaint, or safety and welfare of the law school or university community.
B. Closed Hearings; Exception
1. Hearing Panel hearings will be closed to non-participants unless the Respondent requests an open hearing. A Respondent’s request for an open hearing shall be granted unless the Hearing Panel Chair concludes that the hearing, or portions thereof, should be closed for compelling reasons, such as the protection of the privacy of a witness.
2. Except as provided in Section X.A, if a hearing is closed, the hearing itself, and all information revealed at the hearing, shall be treated as confidential until after the complaint has been resolved.
C. Confidentiality after Final Disposition
1. Following the dismissal, settlement, or adjudication of a complaint, a member of the law school community may discuss the substance of the complaint so long as any identifying details are excluded.
2. Notwithstanding the requirement of confidentiality, if the alleged conduct involves conduct of a kind that falls within The Catholic University of America Code of Student Conduct, or comes within Section V.D.2 and Section V.D.3 of these Rules, those with information concerning the conduct shall provide that information when called upon to do so by officials of the law school, the university, or a government agency.
XI. AMENDMENT OF THE RULES OF
1. Proposals to amend the Rules of Professional Conduct shall be submitted in writing to the Student Affairs Committee, which should consider these proposals with the assistance of current and ex officio members of the Council. See Section III.A. Before any changes are proposed to the faculty, students will be given notice of possible changes and the opportunity to comment. Alternatively the Dean may appoint a committee to review the need for possible amendments and recommend such to the faculty.
2. The faculty must approve amendments to the Rules of Professional Conduct adopted by the Student Affairs Committee.
COUNCIL ON PROFESSIONAL CONDUCT AND RULES OF PROFESSIONAL CONDUCT FOR LAW STUDENTS
I............ PURPOSES AND SCOPE OF AUTHORITY; ADDITIONAL RULES........... 1
A...... Purposes..... 1
B...... Function and Scope..... 1
C...... Additional Rules and Procedures..... 2
D...... Notification to the Law School about Criminal Charges and Convictions ..... 2
II............ RESPONSIBILITIES OF LAW SCHOOL COMMUNITY MEMBERS........... 2
A...... Student Awareness and Compliance..... 2
B. Community Members’ Responsibility to Report Violations 2
C. Understanding Pertinent Rules for Academic and Co-Curricular Activities 3
III............ COUNCIL ON PROFESSIONAL CONDUCT; DEAN’S DESIGNATE; PROFESSIONAL CONDUCT EDUCATION........... 3
A...... Composition..... 3
B...... Functions..... 3
C...... Election and Term of Student Members..... 4
D...... The Dean’s Designate..... 5
E...... Professional Conduct Orientation..... 5
F...... Continuing Professional Conduct Education..... 5
IV............ VIOLATIONS........... 5
A...... Lying or Failing to Disclose..... 5
B...... Cheating..... 6
C...... Stealing, Damaging, or Unauthorized Use of the Property of Another..... 6
D...... Failing to Report a Violation of the Rules of Professional Conduct..... 7
E...... Harassing..... 8
F...... Contempt..... 8
G. Additional Violations..... 8
V............ ROLES, RESPONSIBILITIES AND PROCESS REGARDING POTENTIAL RULES VIOLATIONS........... 9
A...... Terminology..... 9
B...... Duty to Report a Suspected Violation..... 9
C...... Time Limits for Resolving Allegations against a Student..... 10
D...... Preliminary Action; Alternatives Prior to a Hearing..... 11
E...... Dean’s Designate’s First Meeting with Respondent or Potential Respondent; Rights of Respondent or Potential Respondent..... 12
F...... Right to Refuse to Answer Questions or Participate; Inferences..... 13
G...... Subsequent Meetings Between the Dean’s Designate and Respondent or Potential Respondent..... 13
H...... Settlement..... 13
I...... Referral for Hearing..... 14
J...... Disclosure to Respondent Prior to an Adjudicatory Hearing..... 15
K...... Summary Dismissal..... 15
VI............ HEARING PROCESS........... 16
A...... Hearing Panel..... 16
B...... Timing of Hearing; Bifurcation of Proceedings; Recording..... 16
C...... Quorum; Participation in Deliberations..... 16
D...... Respondent’s Refusal to Participate..... 16
E...... Exclusion of Witnesses; Confidentiality..... 16
F...... Presentation and Exclusion of Evidence..... 17
VII............ HEARING PANEL DETERMINATION........... 17
A...... Burden of Proof..... 17
B...... Inference from a Refusal to Answer Questions or Participate in a Hearing Panel Proceeding..... 18
C...... Effect of a Tie Vote..... 18
D...... Determination of Violation and Sanction..... 18
E...... Records of Hearing Panel Proceedings; Written Report to the Dean..... 18
F...... Action by the Dean..... 18
VIII............ SANCTIONS........... 18
A...... Possible Sanctions..... 18
B...... Sanction Imposition..... 19
C...... Bar Report..... 19
IX............ APPEALS........... 19
A...... Right to Appeal..... 19
B...... Submitting a Notice of Appeal..... 19
C...... Appeal Panel..... 19
D...... Review of Hearing Panel Decision..... 20
E...... Appeal Panel Decision..... 20
F...... Sanction Imposition..... 20
X............ CONFIDENTIALITY........... 20
A...... Generally..... 20
B...... Closed Hearings; Exception..... 20
C...... Confidentiality after Final Disposition..... 20
XI............ AMENDMENT OF THE RULES OF PROFESSIONAL CONDUCT........... 21