I usually write this column from my viewpoint as general counsel of three different universities and as outside counsel for many others. I have also served, however, as a board member for two different higher education institutions for a consecutive total of 30 years. I am currently chair of the board of a liberal arts institution. This column focuses on lessons learned as a trustee rather than as a lawyer.
- Don’t get lost in the legal weeds. Lawyers, too often, become enamored with technicalities, wordsmithing, loopholes, complications, caveats, exceptions, but ifs, ambiguities, arguments and counter arguments, These tendencies are, to some extent, the stuff of the law. The trustee’s job, however, is to seek higher ground, consider the longer-term strategy, observe the big picture, and rely more on themes and principles and public policy. Certainly a good lawyer should also consider issues from all of these perspectives, but the trustee’s fiduciary role is more explicitly one of looking beyond immediate legal concerns to serve the mission of the institution.
- Don’t allow the lawyer to bully you into doing what you think is wrong. Lawyers are trained to advocate for an outcome. They are good at manipulating to achieve a purpose, though they would say they do so within rules and constraints. They identify risks, warn about liability, explain bad consequences, and cover themselves by stating the worst case. There is nothing wrong with any of that, if done in context and in a balanced way, but trustees need to keep their eyes on the main chance. They need to not overreact to the downside risks or to worry too much about legal niceties. It is the trustee’s job, not the lawyer’s, to make the ultimate evaluation of costs and benefits and to make decisions in the best interest of the institution.
- Know your place. Trustees who meddle in too much detail in the legal affairs of the institution cross the line from oversight to micromanagement. As a trustee, I plead guilty to doing so from time to time.
- Respect the lawyer’s advice. It is easy as a trustee to think you know better. You are higher in the decision-making Presidents and other officers, even lawyers, are deferential to you. However, ignoring the advice of the institutional lawyer, just because you can, deprives the institution of the counsel of someone who may know more than you do about the issues before the board. Again, as a long-time trustee, guilty as charged.
- Recognize the lawyer’s professional obligation and expertise to consider and advise on political, social, cultural, moral, and other nonlegal factors. Trustees who restrict the lawyer’s advice and opinions to “what is the law” and “is this legal” limit the value lawyers can contribute to good institutional decision-making. Sometimes this results from not understanding the role of lawyers; other times it results from trustees who don’t like the advice they receive or who draw artificial lines between “legal” and “business” advice. Whatever the cause, a trustee who limits a lawyer’s advice in this way acts contrary to the best interests of the institution.
- Both lawyers and individual trustees are part of the same organization. It undermines good decision-making for either the lawyer or the individual trustee to think of themselves as somehow freestanding and separate from management or from the institution as a whole. We are all in this together, and artificial lines of authority and boxes on organizational charts do not contribute to the common good.
All of these issues should be discussed during trustee orientation and again during the course of a trustee’s term. Understanding the perspective of individuals with different roles and functions is critical to the teamwork and partnership which are necessary in any lawyer-client relationship. This is particularly true when the client is not the individual trustee but the organization itself to whom both the trustee and the lawyer owe fiduciary duties
Steve Dunham, JD, is the vice president and general counsel for Penn State University
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