Legal Standpoint: The Lawyer’s Ethical Duties in Facing Client Misconduct

By Steve Dunham    //    Volume 26,  Number 5   //    November/December 2018

College and university lawyers try to be their clients’ partners. Together, they support and defend the mission of their institutions. But there is a dark side to higher education law. College and university lawyers can encounter misconduct (actual or alleged) by their institutional clients and individual employees. In the case of a third-party claim against a college or university alleging wrongdoing, lawyers typically defend the institution. But when lawyers encounter ongoing or proposed wrongdoing by the client, the lawyer’s job is to act in the best interest of the institution and prevent or stop the misconduct.

Client misconduct is every lawyer’s nightmare because it pits the lawyer against the client. The following points, based on the Model Rules of Professional Conduct, may help clarify the lawyer’s duties when faced with misconduct that constitutes a “violation of a legal obligation to the organization, or a violation of law that reason-ably might be imputed to the organization.”

  1. The lawyer must first answer the question: who is the client? The model rules state that “a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” While the institutional lawyer may also represent an individual employee under limited circumstances, this is an exception. Most of the time, the entity is the
    client. The lawyer must explain this to employees so there is no confusion. If the employee’s interests are adverse to those of the entity (for example, if the employee’s conduct is a violation of law that would harm the institution), the lawyer must tell the employee that there is a conflict and that the lawyer cannot represent the individual. Discussions between the employee and the lawyer are not privileged or confidential.
  2. If an employee’s wrongful conduct is “likely to result in substantial injury to the organization,” the lawyer must proceed in the best interests of the institution. Typically, this requires direct discussions between the lawyer and the employee. If this is unsuccessful, the lawyer must refer the matter to a higher authority—known as “going up the ladder”—within the organization. As a practical matter, direct internal discussions or appeals to higher authorities resolve most disputes. In this way, the lawyer effectively prevents the misconduct from happening. This is preventive lawyering at its best.
  3. If, after trying unsuccessfully to dissuade the client from misconduct, the lawyer concludes that the institution’s actual or proposed actions are still a “clear” violation of law, the lawyer may reveal information to the public or the authorities to prevent injury to the college or university.
  4. A lawyer must not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Further, if the lawyer’s services are being used by the college or university to engage in misconduct, the lawyer may go public to “prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another” (for example, fraud on the government). And a lawyer may go public to “prevent reasonably certain death or substantial bodily harm” (for example, environmental contamination).
  5. As senior administrators and board members know all too well, colleges and universities have hundreds of obligations under federal and state laws. Violations of these compliance obligations are perhaps the most common form of misconduct. If the government sues for past violations, the lawyer’s job is to defend the institution. If, however, the lawyer learns of a continuing or pro-posed violation, the lawyer’s duty is to try to stop and rectify the misconduct. Dealing with client misconduct is one of the most difficult parts of a lawyer’s job. This sensitive subject should be part of orientation and training discussions among governing boards, senior administrators, and their lawyers.
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