Multiple Hats

By Steve Dunham    //    Volume 26,  Number 3   //    Summer 2018

Gone are the days when college and university lawyers performed only two jobs: litigating and giving advice about the law. Today’s lawyers wear many hats, carrying a broader portfolio that reflects the multifaceted nature of their higher education clients.

  1. Member of senior leadership. Most general counsel serve in the president’s cabinet. Depending on the lawyer’s experience and the institutional structure and culture, the lawyer can contribute to decisions about the full range of institutional operations, including shared governance, strategic planning, major budgetary issues, human resources, faculty matters, and student affairs. In giving advice on these topics, state licensing laws say that the lawyer may refer to “considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.” Lawyers can and do provide advice and counsel on more than “the law.” In addition, lawyers work with units across the university. This horizontal scope provides a perspective that allows the lawyer to see connections that inform good institutional decision making.
  2. Governance expert. Lawyers serve as advisors to the governing board, which is the ultimate client at most institutions. Among the possible roles are board secretary, a responsibility many lawyers have, and the expert who interprets governing documents and advises on fiduciary duty.
  3. Business advisor. While other individuals make business decisions (e.g., real estate, finances, contracts, investments, technology transfer), transactional matters create legal rights and obligations. The lawyer is frequently at the table during the negotiation, drafting, and decision making. Negotiating and drafting agreements are legal skills, and the lawyer’s experience and judgment may contribute to the business decision.
  4. Protector of the mission. The lawyer’s ethical and professional duty is to the institution, not to any particular individual or constituent. As such, the lawyer must constantly ask, “Does this further the institutional mission?” That is part of the lawyer’s fiduciary duty. The lawyer is obligated to assist the institution in serving its mission (e.g., teaching, research, service).
  5. Defender of institutional values. Several important higher education values (e.g., free speech, academic freedom, non-discrimination, due process, diversity, individual rights, privacy, accountability) have legal components. Lawyers do not have a monopoly on these values, but they are based in part on legal principles, rights, and duties. Defending and promoting the institution’s core values is one of the hats the 21st-century lawyer wears.
  6. Crisis manager. Many crises, including those that affect the institution’s reputation, arise from legal problems. The lawyer often has a key role in investigating the cause of the crisis (“investigator” is yet another lawyer role), advising leadership on managing the crisis and related communications.
  7. Compliance officer. Whether or not the institution has a separate compliance office, lawyers have significant responsibilities for helping to identify, interpret, and apply the law with which the institution must comply. To avoid problems, lawyers should be engaged throughout the process, advising the institution on the best and most efficient ways to comply and responding to non-compliance.
  8. Risk manager. Most institutions have separate offices for risk management, but a significant number of the risks and opportunities that must be managed—contractual obligations, employee misconduct, regulatory and legislative changes, safety, financial vulnerability, and other issues that cause reputational and financial harm—have a legal component. Lawyers help the institution (including its risk, insurance, audit, and compliance functions) identify and manage risks and opportunities.
  9. Policy steward. Policies are the internal law of an institution. Lawyers are frequently involved in working with other constituencies to develop and administer policies. Others may “own” the policy, but lawyers help draft and administer policies and advise on their legal effects.

Every institution is different, and lawyers have different skills and experiences, but colleges and universities are best served if board members and senior leaders understand and take advantage of the multiple hats their lawyers can wear.