Higher Education Lawyers Are Public Interest Lawyers

By August 17, 2017 March 7th, 2019 Trusteeship Article

Colleges and universities serve the public interest. The thesis of this column is that higher education lawyers are their clients’ full partners in performing and supporting public service.

First, lawyers are in the service business. Our job is to support and serve our clients. If our clients are working in the public interest, so are we. Second, lawyers are uniquely situated—indeed required—by their professional obligations to serve the public.

From a lawyer’s perspective, how do colleges and universities serve the public? First and foremost, they do so through their missions. Although the missions of our schools are varied and stated in different ways, they include teaching, which helps develop citizens and leaders of tomorrow; research, which creates human knowledge and helps solve society’s problems; and service, which supports the communities we serve. Each of these three prongs of the higher education mission relates directly to serving the public good.

Because lawyers represent the entity, not any individual or program, and the entity is just a legal fiction, lawyers effectively represent the mission of their clients. Of course, university lawyers are not freewheeling operatives who can decide for themselves what is best for the institution or in the public interest, but in the ambiguity and complexity of decision making in higher education, the lawyer’s North Star is the institutional mission.

Second, the legal nature of colleges and universities, as nonprofit or public entities, is to serve the public good. Colleges and universities are tax exempt for the very reason they serve the public interest. A critical part of a lawyer’s work is to protect the client’s nonprofit and public status.

Third, the subjects that colleges and universities teach and in which they conduct research involve the most important public policy issues of our time, including the STEM fields; energy, water, and climate; education; public health; medicine; information technology; agriculture and food; national security; and international affairs. Lawyers assist their clients on these important public policy issues in a supporting role (e.g., sponsored research, contracting, employment, compliance).

Lawyers’ duties to the client are paramount, but lawyers have direct responsibilities to the public as well. Lawyers’ professional duties obligate them to do the right thing in the face of misconduct; permit them to consider, in the words of the Rules of Professional Conduct that govern lawyers, “moral, economic, social, and political factors” in exercising “independent professional judgment”; and require them to consider the broader public interest as part of giving legal advice to clients.

Further, in our legal system, lawyers have the exclusive privilege and right to give legal advice about our nation’s laws and Constitution and to defend and promote constitutional and other legal precepts in court. As former Supreme Court Justice Felix Frankfurter wrote in an opinion that will seem overblown to some, but captures the notion of a lawyer’s public role, “… all the interests of man that are comprised under the constitutional guarantees given to ‘life, liberty and property’ are in the professional keeping of lawyers.” That is heady stuff, but it means higher education lawyers are uniquely positioned to provide legal advice to their college and university clients on issues such as freedom of speech, due process, and the public policy implications of state and federal laws.

Why is it important for board members and senior officials to understand the public interest and public service obligations of their lawyers? First, board members and university leaders can better seek out, evaluate, understand, and rely on the legal advice they receive if they understand their lawyers’ duties to the public interest. And second, a lawyer’s public service responsibilities are consistent with college and university leaders’ own fiduciary duties to serve the missions of their institutions. Boards might consider scheduling time to discuss with counsel how the lawyer(s)—as well as board members and senior officials— can best serve the institution’s mission and the broader public interest.