Legal Standpoint: Lawyer as Counselor

By Steve Dunham    //    Volume 29,  Number 5   //    September/October 2021

A university official recently told me of a discussion in a search committee for the general counsel. The president described what they should look for in a candidate: “I want a lawyer—not a counselor. I don’t need or want a lawyer to give me counsel. I want my general counsel to tell me what the law is.” With all due respect, this comment reflects a fundamental misunderstanding of the role of law and lawyers in higher education. This column identifies several illustrative areas where institutional lawyers can and should provide counsel beyond explaining what the law requires.

  1. Governance. College and university lawyers should counsel their leadership on issues such as bylaws, fiduciary duty, and delegations of Some of these areas, like fiduciary duty, are straight legal issues. Others create legal rights and duties. Beyond explaining the law, college and university lawyers have experience and training that can inform good judgment in decision-making relating to institutional governance. For example, lawyers can counsel on standards for defining and enforcing fiduciary duty and on best practices in bylaws. The lawyer’s counselling role in good governance also underscores that it is the governing board, not the president, who is the lawyer’s ultimate client.
  2. Risk, ethics and compliance, and audit. These institutional functions, which require board oversight, are significantly based on the law. For example, “compliance” means, fundamentally, compliance with legal requirements. For “risk,” many of the institution’s enterprise risks relate to the legal issues of liability, government enforcement, adherence to law and policies, and reputational harm. And internal audit regularly deals with legal issues, including financial misconduct and weaknesses in policies. Cybersecurity, ransomware, and data privacy are current hot topics where risk, audit, and compliance are intertwined with legal issues. Another example is the constellation of issues relating to foreign influence, which involves sponsored research, government agencies, international activities, conflicts of interest, and law enforcement. Beyond advising on what the law requires, lawyers should counsel on what constitutes good compliance, risk management, audit, and data security plans and practices, what training is appropriate, and what the institution’s ethical standards should be.
  3. Communications. Many institutional statements have direct legal consequences. As such, lawyers should be involved in providing counsel on internal and external communications. For example, communications that relate to freedom of speech (such as hate speech, controversial speakers, and social-media policies) require legal counsel. Other examples include communications and policies related to tenure, academic freedom, shared governance, core values or, indeed, the institutional mission. Lawyers should be asked for their counsel on these and other communications that have legal significance and create rights and responsibilities.
  4. Cultural divide. Colleges and universities are increasingly caught up in issues that relate to the cultural divide in this country— race, gender, immigration, COVID-19, politics, the importance of facts and science, Many such issues implicate the rule of law directly—how does Title VI (race) apply on campus, what do the courts say about affirmative action and diversity, what is the current guidance on Title IX, can we make testing or vaccinations mandatory, what role can a nonprofit play in political activities, what is the meaning of equality and justice? Institutional leaders should seek counsel from lawyers on a range of policy choices. For example, what position should the institution take on a particular social or political issue or specific legislation, what actions should it take in response to crises and challenges, what should the institution do to redress individual and institutional racism, how should the institution best create an inclusive and diverse community, and what is the right balance between freedom of expression and protecting the well-being and safety of the community?

On these and other issues, college and university board members and institutional leaders should seek more from their lawyers than a summary of the law or defense of a lawsuit. They should ask for informed advice and counsel on the full range of issues facing the institution.

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

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