Managing Your Campus Legal Needs: An Essential Guide to ...

[Pages:32]Managing Your Campus Legal Needs: An Essential Guide to Selecting Counsel

LAWRENCE WHITE

National Association of College and University Attorneys

PUBLICATION SERIES

Published in collaboration with the American Council on Education

Lawrence White is President of Lawrence White Consulting. He has worked for 30 years as a lawyer and administrator in the higher education and nonprofit sectors. In 2006 he founded Lawrence White Consulting, a firm that specializes in providing legal, operational, and strategic services to institutions of higher education nationally. From 2003 to 2005, Mr. White served as Chief Counsel to the Pennsylvania Department of Education in Harrisburg, Pennsylvania. Prior to that, he worked as University Counsel at Georgetown University, Deputy General Counsel to the University of Virginia, counsel to the Board of Regents of the University of Maryland System, counsel to Morgan State University, and Assistant Secretary and Associate Counsel to the American Association of University Professors. He is an adjunct member of the faculty at the University of Pennsylvania Law School, and also has been an adjunct professor at Georgetown University and the University of Pennsylvania's Wharton School. Mr. White is a member of the National Association of College and University Attorneys, served on its board of directors and as an officer, and in 2001 was selected as a NACUA Fellow for "outstanding contributions to the practice of law on behalf of higher education clients." He received his J.D. degree from the University of Pennsylvania and his B.A. degree from Harvard University.

This is one of a series of publications from NACUA, an organization whose mission is to advance the effective practice of higher education attorneys for the benefit of the colleges and universities they serve. The views expressed herein are to be attributed to the author and not to the National Association of College and University Attorneys. This publication is intended for general informational purposes only and does not constitute legal advice. An attorney should be consulted regarding the specific facts and circumstances associated with any legal matter or case. Copyright ? 2008 National Association of College and University Attorneys One Dupont Circle, Suite 620, Washington, DC 20036 Printed in the United States of America All URLs are current as of June 2008

Managing Your Campus Legal Needs:

An Essential Guide to Selecting Counsel

More than 40 years ago, at the height of the free speech movement on the Berkeley campus of the University of California, a scholar named Paul Denise wrote an essay in which he attempted to distill the distinctive characteristics making American colleges and universities so difficult to govern. The modern American postsecondary institution, Denise wrote, is unique among all other forms of educational enterprise "in its bewildering complexity and lack of intellectual coherence, in its bureaucratic indifference to individuals as such, in its compartmentalized dealings with students, in its overwhelming size and implacable institutional continuity, in its unabating demand for performance, and in its confidence in the efficacy of anxious motivation as well as its own anxious commitment to orderliness."1 American colleges and universities are unimaginably complex. Running them is a superhuman task, and managing their legal affairs is constantly challenging ? but never dull.

This monograph is written primarily for college and university presidents and other administrators who use (or are thinking about using) the services of campus lawyers. It explains what those lawyers do, how their offices are organized, and what consumers of legal services have the right to expect from them. It addresses threshold questions a campus chief executive officer may wish to consider when deciding whether to establish a legal office and whom to hire to provide legal services.

The secondary audience for this monograph consists of the lawyers who provide those services, particularly lawyers new to the field of higher education law. The monograph explains what makes campuses different from other legal practice settings, how to conceptualize the role of campus counsel, and where to turn for peer advice.

As with other areas of legal specialization, higher education law requires practitioners to master a large volume of substantive law. Every lawyer who represents a college or university develops a working knowledge of the statutes, regulations, and court decisions that are unique to the field and that form its foundation. The substantive law of higher education is not the subject of this monograph; these pages focus instead on considerations of experience and professional judgment. Everyone who practices law in a college or university setting is familiar with the question, "So what is campus lawyering exactly? Who does it? Is it different from other areas of law?" This monograph offers general answers to those questions.

As used in this monograph, the phrase "campus lawyer" is used to describe any lawyer who provides legal services to a college or university client. While many such

1. Paul S. Denise, "The Prophetic Microcosm and the Para-Curriculum (Some Thoughts Resulting from the Disjuncture of Relevance at Berkeley)," reprinted at University of California, Free Speech Archives, . The Denise article appears online at: =d0e342&toc.depth=1&toc.id=&brand=oac.

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lawyers in fact work on campus as members of in-house legal departments, others are employed in law firms, centralized system offices, or the office of the state attorney general. The term "general counsel" refers to the campus chief legal officer, and "general counsel's office" to the organizational home of campus lawyers, although other appellations are often used ? "Legal Counsel," "University Counsel," "Legal Advisor," and other variations.

While campus lawyers have many duties in common, the institutions they represent vary enormously in size, mission, structure, organization, and culture. Public institutions of higher education manifest legal and operational characteristics that make them different from private institutions. Community colleges, religiously affiliated colleges, historically black colleges, colleges with medical schools, colleges that operate Division I athletic programs, colleges in urban areas, multi-campus systems, proprietary colleges ? each subcategory of higher education has its own operational idiosyncrasies, and it would be hubristic to suggest that all need or use legal services in the same manner.2

THRESHOLD QUESTIONS: IS IT TIME TO HIRE A CAMPUS LAWYER? IF SO, HOW?

Given the size and complexity of the typical college and the litigious environment in which they operate, virtually every college in the United States regularly uses the services of a lawyer. At most medium- and large-sized colleges, the provision of legal services is formalized through either: (1) engaging a private practitioner or law firm on a fee-for-service basis, or (2) assigning legal duties to one or more salaried lawyers employed directly by the college (or the system of which the college is part). Historically, many small private colleges have relied for legal services on retained outside counsel while most medium- to large-sized colleges (public as well as private) employ an in-house general counsel who is responsible for managing the legal function internally, and who may engage outside counsel to perform some or even most of the legal work. While the number of higher education legal specialists is difficult to estimate, the leading professional association ? the National Association of College and University Attorneys (NACUA) ? has about 3,500 attorney members who represent 1,500 campuses.

Subsequent sections of this monograph will describe how a campus legal office is organized and what functions it typically performs. This section considers some preliminary questions that could arise at a college that employs its own in-house campus counsel. What factors should a board of trustees or a president take into account in gauging whether the time has come to establish a legal office? How should the college conduct the search for a new chief legal officer, and what kinds of candidates should the college consider?

The process of addressing these questions should begin with an audit of current legal services and expenses, a task that can be assigned to the chief financial officer, a senior member of the president's staff, or an outside expert. The audit proceeds in three phases: data assembly, data analysis, and data projection.

2. For the sake of simplicity, in addition to using the standardized "campus lawyer," the monograph also uses other standardized terminology. "President" means the institutional chief executive officer, although that office is occupied on some campuses by a "chancellor." Finally, notwithstanding the fact that higher education institutions come in many forms ? colleges, universities, institutes, schools ? the monograph avoids the cumbersome catch-all phrase "institutions of higher education" and refers to all interchangeably as "colleges" (and "college legal issues" and "college lawyering").

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Assembling data on legal service utilization. The auditor should assemble all billing records received from lawyers, law firms, and legal consultants for the provision of legal services to the college that cover a representative period of time (such as the preceding six or 12 months). Those billing records will consist of invoices showing the amount the college spent to procure those services and time sheets or time records reflecting the nature of the services provided. The audit, which may take two to four weeks to perform, ultimately will yield data on the volume and predictability of legal services the college already purchases, the aggregate cost of those services, the users of those services, and the kinds of projects for which users typically rely on the services of lawyers.

Analyzing the data. The next step involves categorizing legal costs to get a sense of who on campus incurs them and for what reason. Legal costs typically can be divided into five generic categories (with the caveat, of course, that some costs fit into more than one category):

? Business and financial affairs. This embraces the negotiation and review of complex contracts and leases, real estate matters, money and investment management, assisting in the negotiation of gift agreements and other development office-related work, physical plant maintenance, and all forms of litigation involving business matters (e.g., breach of contract, general liability claims, and so forth).

? Human resources. This includes employment-related lawsuits and grievances, discrimination and affirmative action matters, benefits, collective bargaining, and all other labor-management issues.

? Academic and student matters. This category includes employment matters that are faculty-related (rank and tenure issues), student affairs, student discipline, extracurricular activities, athletics, and the handling of all litigation and grievances brought by faculty members or students. It also includes patent, copyright, and other intellectual property issues.

? Compliance. This catch-all category, which overlaps to some extent with others, covers compliance with legal obligations imposed by federal, state, and local laws. It might include, for example, such matters as physical access requirements under the Americans with Disabilities Act, classroom access under the same statute, student records issues under the Family Educational Rights and Privacy Act, zoning and law use obligations, tax issues, and (for colleges of sufficient size) laws and regulations covering health care, Medicare, and federally sponsored biomedical research.

? Corporate governance. The last category includes the kinds of corporate work any lawyer who represents institutional clients routinely performs. It encompasses such matters as ensuring that the college's bylaws are amended when appropriate, conducting board meetings in compliance with applicable statutes and bylaws, reviewing minutes of board meetings, drafting board resolutions, detecting and preventing institutional conflicts of interest, and ? perhaps most important of all ? providing confidential counsel when asked to do so by the president, the board chair, and other college leaders.

Data projection. The first two stages in the audit process enable the college to develop a sense of how legal expenses currently are incurred. The final phase takes into account what is known and what can be surmised about the college's future evolution. For example, if the college has ambitious growth plans involving the construction of new campus buildings, officials can predict with confidence that the negotiation of

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construction contracts and the adjudication of construction claims will tax that portion of the legal budget going forward. If a collective bargaining agreement is about to expire, or if layoffs threaten to generate a surge of employment-related grievances and lawsuits, the legal budget for human resource support obviously will grow. As discussed in the preventive counseling section on pages 21?22, a prudent investment of legal dollars today can prevent expensive compliance or litigation problems in the future.

It is also during this final phase that the "science" of assembling and analyzing data is enriched through the "art" of doing some realistic thinking about institutional legal needs that have been ignored over the years due to financial constraints or underprioritization. Just as institutions incur deferred maintenance backlogs over the years, so too do they build an inventory (often without even realizing it) of deferred legal projects ? institutional policies that are not reviewed and updated periodically, standard-form contracts that do not reflect changes in applicable law, and even relationships with outside law firms that have been allowed to grow stale as key personnel retire or the law firm's focus changes. The audit process, however, allows the college to prepare an inventory of legal projects that have been neglected or ignored over the years.

The analysis generated during the audit enables the president to address two operational questions: is it time to centralize management of the legal function in a campus lawyer, and, if so, what qualifications should such a lawyer possess? If legal expenditures are acceptably low and if the college can adequately protect against foreseeable legal risk by relying on specially retained lawyers on a case-by-case basis as the need arises, then there may be no purpose served by hiring a campus counsel. On the other hand, if the audit reveals a substantial and fairly predictable volume of legal work from month to month and year to year, and if legal expenses can be contained through judicious attention to compliance and preventive law, then there may be significant benefits ? managerial as well as financial ? in entrusting supervision of that work to a lawyer who can develop an ongoing relationship with the college and its leaders.

The purpose of the audit is not merely to develop a financial rationale for establishing a campus legal office, although financial considerations are always important. A good higher education lawyer ? whether employed as inside counsel or by an outside law firm ? brings a set of valuable analytic skills to the college's leadership team: the ability to think clearly and in linear fashion; discretion; the ability to react calmly in crisis situations, and the related ability to reduce litigation threats; facility in oral and written communications; problem-solving capabilities; and sound judgment. Shrewd presidents know that having a lawyer on staff significantly enriches the college's overall management capabilities, and an audit can illuminate that fact by showing not only the dollars and cents the college spends on legal services but the range ? and sensitivity ? of projects entrusted to lawyers.

The audit also helps identify the skill set that a campus lawyer should possess (which in turn can inform the search for the new lawyer), and it provides an educated snapshot of the work the campus lawyer will be expected to perform. If the college's legal work consists principally of generalized work ? some contract negotiation, a dab of litigation management, a dollop of collective bargaining, and a steady diet of regulatory and compliance matters ? then the president may want to hire a lawyer with substantial experience as an in-house counselor, preferably in the college context. On the other hand, if the audit reveals that the college has particularized needs ? in construction litigation, for example, or in business and transactional law ? then the president may wish to explore the possibility of appointing as general counsel a specialist with suitable skills obtained

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through experience at a law firm (if the president is wholly comfortable that today's specialized skills will also be needed tomorrow and next year and the year after that). The variations are myriad; but a careful and thorough audit that sheds light on the college's preexisting need for legal counsel and intelligently predicts future needs can provide the analytic foundation for informed decision making.3

The search for a campus lawyer should be conducted in the same manner as any other high-level administrative search: through a combination of advertisements and interviews.4 For illustrative purposes, a sample (truncated) advertisement is reproduced in the footnote below.5

Should an executive search firm be employed to conduct general counsel searches? Unlike searches for presidents, provosts, and top-ranking finance officers, where search firms are the national norm, there is no tradition of using them for lawyer searches. That may be changing, however, as more executive search firms add capabilities for attorney searches.

One other recurring question is whether an internal search committee should be part of the process of hiring a general counsel. To some extent, institutional culture determines the answer: if the college ordinarily constitutes search committees for upperlevel administrative vacancies, then there is no reason to make an exception for the general counsel (and vice versa ? if there is no tradition of appointing search committees for administrative positions, then one may not be necessary for the campus lawyer). There are advantages in using a search committee, particularly at colleges that are hiring a general counsel for the first time. A president's decision to hire campus counsel can generate uncertainty if the reasons for doing so are not communicated clearly. The search committee process allows constituents from the faculty and staff to develop a better understanding of the president's decision, and can assuage concerns by giving affected groups a voice in the selection process.

3. While it is not essential that the legal audit be conducted by a lawyer, and while this monograph has already suggested that in the absence of an on-campus attorney the audit be assigned to the chief financial officer or a senior member of the president's staff, it is highly desirable to involve a lawyer or even to hire one specifically for that discrete task. Deciphering lawyers' time sheets is a skill learned through experience, and an attorney who has prepared time sheets can do it quickly and with added comprehension.

4. Among other places, an advertisement should be posted in the National Association of College and University Attorneys' "Position Registry," a free online service that circulates job announcements to several thousand campus lawyers nationally. Information on NACUA's Position Registry is available at: membership/PositionRegistry/registry.asp.

5. _______ College seeks an experienced General Counsel. The General Counsel is the chief legal officer of the College. Subject to the direction of the President of the College, the General Counsel oversees the provision of all legal services to the College. He or she has general charge of all legal matters pertaining to the College and its governing board; attends meetings of the board and its committees; is responsible for the representation of the College in all legal proceedings; and advises the board, its Committees and Officers, the President of the College, and other College officers on legal questions as may be required.

The General Counsel has a dual reporting relationship to the governing board and the President of the College, and provides proactive professional advice on critical strategic, legal, and public policy issues.

Preference will be given to candidates who possess the following:

? Strong academic credentials that include a J.D. from an ABA-accredited law school.

? Membership in the [name of state] bar or eligibility for membership within six months of employment.

? Demonstrated legal and ethical stature, maturity, competence, and confidence to operate with credibility at the executive level, as well as a professional history of maintaining objectivity while achieving appropriate outcomes.

? A minimum of 10 years of broad general legal practice, including increasingly responsible experience at a senior level in a private, public, or non-profit in-house setting, preferably as a specialist in higher education law.

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At the same time, the relationship between the president and the general counsel differs from other high-level relationships because of the highly sensitive work the general counsel is often called upon to perform for the president. Thus, at the end of the process, the president must have the latitude to select the candidate with whom he or she is most comfortable and cannot allow the search committee to become a point of veto in the selection process.

HOW TO ORGANIZE THE COLLEGE LEGAL OFFICE

While virtually all colleges use the services of attorneys, the structures they have adopted for employing their lawyers vary significantly. The structural relationship between a college and its counsel depends on such factors as the size of the college, its location, the complexity of its legal needs, its historical relationship with particular lawyers or law firms, and the preferences of the president, the governing board, and senior administrators. Counsel may be engaged as either "inside counsel" (salaried employees of the college) or "outside counsel" (independently employed lawyers, usually working in law firms or law practices, engaged on a contractual basis to provide legal services). Many colleges use both. Multi-campus state university or community college systems may use a hybrid "inside-outside" model in which the system has a centralized legal office but assigns "general counsel" to represent individual institutions within the system. At some state-supported institutions, the general counsel reports to the president but also has a parallel appointment as an assistant attorney general with a parallel reporting obligation to the attorney general's office.

The In-House Legal Office

The in-house lawyer typically works for the college, much the same as other salaried employees. He or she usually works in a campus legal office ? the "general counsel's office" ? and, as mentioned earlier, can be referred to by a number of different titles, e.g., "General Counsel," "Legal Counsel," "College Counsel," "Vice President for Legal Affairs," or "Special Assistant to the President for Legal Affairs." An in-house lawyer also may have other responsibilities within the college, such as corporate compliance officer or secretary to the governing board or the college. At some institutions, in-house lawyers cherish the opportunity to teach undergraduate or law school classes.

Although the in-house lawyer serves as counsel to the college, he or she typically reports to the president and serves "at the pleasure of the president." This means that a change of administration may bring a change in the appointment of counsel although, as an empirical matter, most new presidents retain an experienced general counsel because of his or her institutional memory and the particularly sensitive issues he or she may have handled prior to the new president's arrival.

The size of a college often dictates how many, if any, other attorneys will be employed by the legal counsel's office. Generally, the larger the college, the more attorneys it will employ. Additional attorneys may provide expertise in specialized areas of the law. For example, an institution with a medical school may find it has enough legal work related to health care issues to justify employing one or more full-time health care attorneys. A college with a unionized work force may decide to employ an in-house labor lawyer. Higher education law, like virtually every other field in American law, has become more specialized over the last few decades. A generation ago, college legal offices were

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