Legal Standpoint: When to Seek The Advice of a Lawyer

By Steve Dunham    //    Volume 27,  Number 1   //    January/February 2019

Institutional clients should strive for the right balance between over-use and underuse of lawyers. There is no right answer for how much advice to seek. It depends on many variables, including the size of the institution and the legal office (including the budget for outside counsel) and the personal inclinations and risk appetite of leadership. Other factors include the experience and skill sets of the lawyers as well as senior leadership, and the offices, such as compliance, risk management, and HR, that deal frequently with legal issues.

There are costs and benefits both ways. Clients who overuse lawyers run a risk of driving up legal overhead, diverting lawyers from more important work, creating con-fusing lines of authority, and making some decisions too legalistic. Clients who do not call lawyers enough create legal risks and liability for the institution and do not take advantage of an institutional asset—the lawyers’ abilities to add value to institutional decision making.

EXAMPLES OF ‘TOO MUCH’

  1. Some institutions ask their lawyers to sign off on all contracts. While this is good preventive lawyering, it can bog down the lawyers in repetitive detail. Clients might consider having lawyers prepare model contracts and only review those that vary from the approved format.
  2. Lawyers may be asked to attend all meetings that discuss certain topics, such as benefits or records management. While such topics have important legal implications, many “regular” meetings do not require legal advice.
  3. Lawyers may be asked to collect documents called for in litigation discovery or by third-party subpoenas. It may be an inefficient use of time for a lawyer to collect the documents. And subpoenas in third-party litigation not involving the college or university may not affect the institution’s interests sufficiently to warrant legal review.
  4. Lawyers may be asked to review all employee terminations. While many HR decisions are legal in nature—and checking with a lawyer before making such decisions is often good risk management—administrators and HR professionals frequently can make routine employment decisions without the need to consult a lawyer.
  5. Lawyers are sometimes asked to bless a decision not because they add value, but as a way for the client to deflect criticism. If the lawyer contributes only “cover your back” protection for the client, one can question if it is a proper use of resources.

EXAMPLES OF ‘TOO LITTLE’

  1. Colleges and universities are frequently involved in cultural, political, and social controversies, such as freedom of speech, sexual harassment, and race discrimination. In these sensitive situations, institutional decisions and public statements made without lawyer input may create risks and deprive the entity of relevant information and good advice.
  2. Compliance and risk management are frequently handled by units other than the legal office. However, both topics are heavily “legal.” Underutilization of lawyers in these areas creates liability risks and can contribute to poor decision making.
  3. Many college and university policies create legal rights and obligations (e.g., the HR manual, misconduct policies, conflicts of interest). Clients may miss important issues if they interpret and implement such policies without consulting lawyers.
  4. Many colleges and universities are decentralized and committed to shared governance. Lawyers work across constituent groups and units, and thus are in a good position to connect the dots. Clients underutilize lawyers’ knowledge if they do not include them in certain decisions that cut across administrative and functional units.
  5. Higher education’s mission and its core values, such as academic freedom, ethical decision making, and innovation, have legal significance. For example, the mission justifies the tax-exempt status of the institution (public or private), academic freedom has First Amendment implications, and innovation frequently involves intellectual property. Because of the legal nature of these topics, lawyers can help support good decision making and further institutional interests.

So, what is “just right”? Boards and senior officers—the “clients” who use and benefit from legal advice on behalf of the institution (which is the ultimate client)—should discuss this question with their counsel on a regular basis, including during board train-ing and orientation. Communication on this issue will help both parties in this relationship to strike the right balance.

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