What qualities and abilities should college and university board members and senior executives look for in their institutional lawyer? This is a highly subjective question. Personal relationships matter and depend on trust and chemistry on both sides of the relationship. Institutions vary greatly and the necessary skill sets do as well. Some qualities are important for most or all lawyers. Others relate to specific areas of practice. No lawyer can check all of the boxes or be all things to all people. Recognizing the variability of any answer to this question, this column identifies six important categories of qualities and abilities.
1. Legal skills. Important skills (as contrasted with knowledge) include legal analysis, writing, communicating, good judgment, advice and counsel, negotiating, drafting, advocacy and persuasion, risk management, policy development, problem-solving, decision-making, and research.
2. Personal qualities. Harder to define are personal qualities such as emotional intelligence, candor, independence, honesty, diligence, passion, teamwork, ability to listen, courage, collegiality, and zealous support for the client.
3. Knowledge of higher education law and core values. A good higher education lawyer should have a passing understanding of the law applicable to colleges and universities or the ability and willingness to learn it by research, experience, and consulting with others. Higher education law includes some substantive areas that apply to most organizations: torts, contracts, real estate, employment, intellectual property, litigation, discrimination, fiduciary duties, and others.
Other subjects have unique application to colleges and universities such as student rights, tenure, Title IX, Clery, compliance, Title IV, the First Amendment, athletics, privacy, research, international activities and immigration, and many others.
Beyond substantive higher education law, a good college or university lawyer should have an understanding of the legal principles, themes, and core values that are unique to higher education. They include the institutional mission; diversity, equity, and inclusion; academic freedom; shared governance; institutional autonomy; access and affordability; and decentralization.
4. A good higher education lawyer should have the knowledge and ability to include “nonlegal” factors in advice and counsel. These include social, economic, political, moral and ethical, cultural, public policy, philosophical, and psychological considerations. Indeed, consideration of nonlegal factors is a professional obligation of a competent A good lawyer will develop the ability and knowledge to consider such factors in the broad range of legal issues that are relevant to the client’s situation.
5. Understanding who the client is. By law (embodied in professional licensing obligations), college and university lawyers represent the organization acting through authorized constituents, not board members, presidents, senior leaders, or other employees in their individual capacities.
The lawyer for the institution also has an obligation to go “up the ladder” to a higher authority if an individual is acting in violation of the law or an obligation to the institution. An effective and ethical higher education lawyer should have the analytical ability and courage to understand who speaks for the entity client in any given matter, whether client misconduct is involved, and when faced with such misconduct, to decide whether and to whom to refer the matter. Although the situation arises rarely, a good institutional lawyer needs to “speak truth to power,” call out client misconduct, be the conscience of the organization, and represent the broader institutional mission.
6. Serve the public Lawyers owe duties to the public in addition to duties to the client. They have legal obligations to follow the law. They have professional obligations not to assist criminal and fraudulent conduct. They are prohibited from engaging in dishonesty, deceit, or misrepresentation. In some instances, they have duties and/or the authority to prevent client misconduct and to go public. They have duties to our system of justice. They have duties not to discriminate. These duties to the public are particularly important for higher education lawyers because of the governmental and nonprofit nature of colleges and universities. A good higher education lawyer understands their duties to the public and how to balance these duties with their duties to the client.
Steve Dunham, JD, is the vice president and general counsel for Penn State University.
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