Legal Standpoint: Crisis Management and the Law

By Steve Dunham, JD    //    Volume 27,  Number 6   //    November/December 2019

In this continuing series of columns of the “Law and ….” variety, the next up is law and crisis management. Underlying all of these columns is the proposition that the law and lawyers are critical and indivisible components of these broader institutional functions.

This is uniquely true for crisis management because most higher education crises grow out of specific legal problems. Consider, for example, the role of the law in crises relating to sexual harassment, race discrimination, the First Amendment, health and safety, athletic scandals, financial wrongdoing, misconduct by senior leaders, and other high-profile matters. In each of these areas, an allegation of illegal conduct may be the actual source of the crisis. In such crises, college and university lawyers need to be at the table because their expertise in the law is necessary to manage what is effectively a legal crisis.

Legal skills are also relevant in crisis management for reasons that go well beyond substantive law, liability, and litigation.

1. Decision making. Crisis management requires leaders to consider a broad array of factors—e.g., economic, cultural, moral—and then exercise good judgment in making decisions in the best interests of the institution. Many of these factors overlap with traditional legal issues: What does the law require? What is the litigation risk? Who is suing whom? But beyond advising on the substantive legal requirements, lawyers are trained to think broadly about all relevant factors, legal and non-legal alike. In fact, the rules of professional licensing expressly require a lawyer to consider “moral, economic, social, and political factors” in giving advice. Anticipating and mitigating risks is part of the lawyer’s job, but so too are analyzing a broader set of non-legal considerations that may be part of crisis management.

2. Crisis communications. Communicating to the public and to the college and university community is central to good crisis management. Frequently, external or internal communications professionals will be charged with this aspect of crisis management. But clear and effective communication is also a core legal skill. Lawyers are trained to communicate effectively with clients, courts, third parties, and governments. Good communication is also a requirement of a lawyer’s professional ethics, and thus of good lawyering. Lawyer jokes aside, lawyers are not paid by the word. They are effective communicators and can use their written and oral skills in crisis management to protect the client’s reputation and to advance their client’s cause.

3. Institutional culture. Crises can be avoided or mitigated if the college or university has well established core values. This starts with the college or university mission but also includes institutional commitment to values such as integrity, diversity, responsibility, honesty, accountability, community, “do the right thing,” and others. In a crisis, these are not just buzz words. They help an institution recenter itself. The law and lawyers have a special role in protecting and furthering the institution’s mission, core values, and reputation. As with considering non-legal factors and good communication, protecting the client’s interest is part of a lawyer’s ethical obligation to the client and is also central to good crisis management.

4. Policies, risk management, governance and compliance. Each of these college and university functions is central to good crisis management. Each helps the institution prevent crises and they help the institution respond to crises when they occur. The law and lawyers play a central role in each area.(See recent columns in Trusteeship magazine on law and compliance, law and risk management, law and governance, and law and policies.)

Crisis management is the ultimate challenge for leadership. Board members and senior executives should establish policies in advance of a crisis so that they are as prepared as possible. They should also consider how lawyers can help the institution respond to the inevitable crises that will occur. In doing so, institutions should understand the role of lawyers as advisors on all aspects of crisis management.

Steve Dunham, JD, is the vice president and general counsel for Penn State University.

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