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Legal Watch: Lean On Me: Using Your General Counsel Effectively

3/10/2014

 

​By Ada Meloy

University counsel often plays a behind-the-scenes role integral to providing a smoothly running institution and managing risks. The general counsel can also provide important support for all areas of college or university leadership. Even more than 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, and also has a keen understanding of the specific institution that she represents. Because of this specialized expertise, general counsel can and should be utilized as a key leader on campus for a wide range of issues, and should be brought in early and often to address the legal needs of the campus community.

Benefits of In-House Counsel

While not every college or university chooses to have in-house counsel instead of relying on outside counsel for legal needs, there are at least five significant benefits to retaining in-house legal counsel, as outlined below. Campus lawyers have many duties in common, though the institutions they represent vary enormously in size, mission, structure, organization, and culture. A lawyer dedicated to your campus will best understand that mission and your needs.

  • Availability on campus. In-house lawyers are only a short stroll away from their principal clients. They can be summoned or consulted quickly when necessary. They interact with their clients over meals, at social occasions, at sporting events, and in a variety of other settings and circumstances that foster cohesion. Because they have only one client—the institution—they never (or rarely) are unavailable due to conflicting professional obligations.
  • Familiarity with higher education legal issues. As with in-house counsel anywhere, a lawyer who provides services for only one client develops a deeper, more sophisticated knowledge of pertinent law than a practitioner in private practice whose exposure to the needs of a particular client may be more episodic. The in-house lawyer also has good instincts about institutional priorities.
  • Institutional memory and understanding of internal politics. Working closely with the college and its senior managers, an in-house college or university lawyer inevitably develops sensitivity to the client’s idiosyncrasies—its personalities, organizational quirks, history, and culture—in a way and to an extent that an occasional or even regular visitor could never do.
  • Cost savings. These can be substantial, particularly when factoring in the long-term savings associated with effective preventive counseling. Assume a campus lawyer works 40 hours a week, 50 weeks a year. That would be 2,000 hours of work in a given year. If the campus lawyer were paid $120,000, earned another $30,000 in benefits, employed an assistant ($40,000 plus $10,000 in benefits, or $50,000), and used phones, stationery, computers, utilities, postage, and office space ($50,000), then the total cost of that lawyer would be about $250,000 a year. That equates to about $125 an hour for the lawyer’s time—which is considerably less than what a law firm might charge for the equivalent legal effort.
  • Prepayment. This cryptic term encapsulates what many people see as the principal advantage of having an in-house lawyer. The cost of the in-house legal office is incorporated into the institutional budget and fixed in advance. Clients who use the services of the in-house legal office for particular matters typically are not charged for those services. This encourages clients to call their lawyers sooner rather than later, and is widely seen as promoting a valuable preventive law component in the work of the in-house legal staff.

Even with in-house general counsel, it may be advisable to engage outside counsel for some matters. An outside firm may offer access to expertise in a specific area of law, and it may provide cross-institutional experience if it has several higher education clients. An outside firm also normally has greater capacity to handle litigation.

Role of General Counsel

Campus lawyers perform two broad functions. The first is counseling, meaning advising clients on the interpretation and applicability of legal documents (contracts, laws, institutional policies, and regulations) that relate to specific legal problems. This role encompasses a wide range of topics. These include governance and questions about board conduct, review of policies and procedures, employee relations, student affairs (academic, health and safety, discipline, student records, student organizations, etc.), regulatory compliance, campus security, athletics, financial matters, government relations, town-gown relations, contracts, intellectual property and technology transfer, crisis management, sensitive dispute mediation, and simple handholding on a host of issues.

The other broad function is formal dispute resolution—managing advocacy for the college in formal proceedings, including court litigation, formal arbitration, grievance proceedings, administrative hearings, and any other adversarial proceedings.

Counsel’s role in the leadership of an institution depends on the relationship between the president and the general counsel. The institution will want to give serious and sustained thought to the mission it wants the office to serve. All in-house legal offices are responsible for the day-to-day management of institutional legal issues. But colleges and universities may realize a great benefit if the office is also viewed as the “institutional conscience,” where lawyers are respected advisors to the college on a broad range of initiatives as well as problems, some of which are not primarily legal in nature. If serving such a role, the lawyer will provide holistic counseling to all areas of the college or university, and will be called upon for advice on business matters, political relationships, strategic planning, and other top priorities of the institution’s leaders. University and college leaders may be well advised to utilize lawyers in exactly this way, since in-house counsel not only keeps the institution running smoothly through regulatory compliance and daily tasks, but also can help find solutions to sticky problems, and can best do so when involved right from the start. With a can-do, positive attitude, campus counsel can work with leadership creatively to solve issues. Counsel identify risks, but accept them when the leadership decides the benefits outweigh the risks. An effective in-house counsel will be discrete, decisive, and dedicated to helping the institution thrive and innovate.

Ada Meloy is the general counsel of ACE. She acknowledges with gratitude the assistance of Jessie Brown, associate general counsel of ACE, in preparing this revised and condensed version of a monograph originally published by National Association of College and University Attorneys in 2008, authored by Lawrence White, vice president and general counsel of the University of Delaware.

 


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