Legal Standpoint: Ethics and Higher Education Lawyers

By Steve Dunham    //    Volume 29,  Number 3   //    May/June 2021

The premise of this column is that higher education lawyers have unique duties to act ethically and do the right thing. Although it may sound self-serving, lawyers have professional legal obligations to act ethically that distinguish them from other professions. Furthermore, lawyers’ training and roles put a premium on ethical decision-making. The point is not that lawyers are more moral than others—but college and university lawyers have special duties to act in compliance not only with legal requirements but also with ethical standards.

  1. The foundational basis for the claim that lawyers have a unique role in ethical decision-making is that lawyers are subject to a professional code of conduct that regulates their behavior and establishes and defines ethical duties to others. In all 50 states these codes are based on the American Bar Association’s Model Rules of Professional These state licensing laws are known as “codes of legal ethics.” They have the force of law; violations can be punished by loss of the privilege to practice law. Law students are required to take courses in legal ethics. Lawyers must pass bar exams that test their knowledge of legal ethics.
  2. The following are some of the more important rules of ethics that are of particular relevance to higher education lawyers:
    1. Lawyers “shall exercise independent professional judgment and render candid advice” [including advice the client may not want to hear] and in so doing “may refer not only to law but to other considerations such as moral … factors ……”
    2. Lawyers “shall not . . . make a false statement of material fact ” Lawyers’ codes of ethics make truth-telling a mandatory requirement for the practice of law. Consider, by contrast, recent statements by politicians, news reporters, PR consultants, and others who are not subject to the lawyer’s ethical requirement not to “engage in conduct involving dishonesty, . . . deceit or misrepresentation.”
    3. A lawyer representing an organization, such as a college or university, who “knows that a[n] [official]…. intends to act . . . in a matter…. that is a violation of a legal obligation to the organization, or a violation of law   ” shall, if serious enough, go up the ladder and tell a higher authority, such as the board of trustees; and if the matter is not addressed, the lawyer may go public. This is a rare situation indeed, but lawyers have ethical, moral, and legal duties to the organization, beyond even the most senior leaders, to do the right thing.
    4. Numerous provisions in the Model Rules of Professional Conduct relate to conflicting duties lawyers owe to clients, third parties, courts, and the The rules provide standards as to how a lawyer should balance these sometimes conflicting duties. Taken together, these provisions require college and university lawyers to consider who the client is (the entity, not an individual), when to go to a higher authority, when to report wrongdoing outside the entity, when to disagree with a client representative or to question a decision, and, beyond the law, when a decision violates an ethical standard. These ethical issues are not “owned” by the lawyer to the exclusion of others, but they are uniquely legal issues that the lawyer has a duty to address.
  3. Effective lawyers also provide advice and counsel on ethical issues because informed leaders and institutions know of lawyers’ special ethical duties and training and want the benefit of their advice. Lawyers’ advice on ethical and moral issues leads to better decisions and strengthens the institution.
  4. For colleges and universities, doing the right thing is usually related to their mission. Because of their training, roles and professional obligations, lawyers can and do provide advice and counsel on issues of ethics and morality that help institutions serve their nonprofit mission.

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

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