Over the past several decades, the general counsel’s office on many university and college campuses has grown in size and nature of the work undertaken. In part this is due to the increasing number of compliance matters schools deal with on a regular basis and in part it is because our society has become extremely litigious — perhaps, overly so.
In some sense, we have lost the ability to look each other in the eye and shake hands, to talk an issue through and settle matters person-to-person, face-to-face. For every action and reaction we seem to need third party intervention. The slightest of slights is cause for the threat, “You’ll hear from my lawyer” or “I’m going to file a claim.” Hardly anyone or any institution is immune from the scourge of the rush to go to court. The plague of litigation has hit our lives. Civility is gone from so many aspects of our business and personal transactions. And we live in a post-Enron, Sarbanes-Oxley world.
Universities are complex organisms — and their legal needs are like so many other organizations, for-profit or not-for-profit. Universities interact with the world on many levels: as an employer, land owner, recipient and deliverer of goods and services, producer and guardian of intellectual property, provider of insurance, risk management, and at times health services (operating hospitals and clinics), organizer of special events, manager of sports teams, in loco parentis to undergraduates, facilities manager, and the list goes on. Each specialty requires an expertise in dispensing the service as well as safeguarding its rights and obligations.
While some legal issues, such as academic freedom, are unique to a campus, many others are common to the field of higher education. Some campuses handle legal matters in house; others avail themselves of outside counsel under the coordination of university staff. As one might expect, as the field became more complex — in issues and people, an association grew up and today, many campuses and their lawyers are members of the National Association of College and University Attorneys (NACUA), whose roots go back to 1960-61.
Today 1500 campuses (700 institutions), representing 3500 attorneys, make up the association, whose purpose is to enhance legal assistance to colleges and universities by offering information and service along with continuing education to its members, and operating a clearinghouse through which attorneys share resources and works in progress on legal issues.
George Washington University’s general counsel’s office has over a dozen attorneys on staff and its Web site helps various constituencies on campus find information about policies and procedures as well as referrals to outside resources. GC’s do not usually represent students but they will serve staff and faculty in claims or suits arising from sanctioned university activities. If someone on campus is looking for official policies, documents are publicly posted online, including in areas such as sexual harassment, document retention, conflict of interest, memoranda of understanding, use and reproduction of copyrighted materials, international contract compliance, and ethical principles.
As a member of a president’s senior staff, the GC is often an important adviser, adding information to discussions on major policy initiatives, for example, or on risk management. Often the office of GC has specialists on staff, including people working in areas of health care, research contracts, real estate, government relations, employment, and athletics. This team will stay current on updates and changes in the law, best practices, and common concerns. A good GC will have a better record on prevention of mishaps than on reactive measures to unintended consequences and acting as a facilitator, the CG should be able to help a university administration make things happen rather than be the major no-man. While it is easy to say, “don’t do that” when a cloud of disruption, lawsuit, or obstruction stands in one’s path, a GC should be able to see around impediments.
Practicing law may no longer be the learned profession I’m told it once was. Business practices are increasingly intrusive. Law.com tells us that law firms continue to reduce the number of professionals, both attorneys and staff and the ABA Journal informs us that over the past six months more than 30 lawyers left Thacher Proffitt and Wood, in anticipation of a drop in 2008 profits. I cite these statistics as an example of a broader situation. Many organizations and corporations are doing more and more of their work with in-house counsel and relying less on outside firms. The profession is clearly changing.
One talks to lawyers and discovers a good deal of disillusionment. And yet, the ABA Journal tells us that up to 10 new law schools are being planned around the country. While the number of law schools seems to be growing, according to The New York Times, the headline tells us the jobs isn’t. I can’t quite sort it all out, but as a recovering lawyer and a one time university general counsel (Boston University) I believe it is fair to say that being a university attorney provides many of the challenges and satisfactions as well as a civilized environment that law firms reputedly once had.
The practice is endlessly fascinating, there is a genuine collegiality, and one has the opportunity to work on the teaching and research mission, shaping programs with the professors and administrators; that is a joy, under even difficult circumstances. And I believe that world of ideas that can be found in the academy is also present in the General Counsel’s office. So it may be worth noting that the annual conference of the National Association of College and University Attorneys begins Sunday June 22nd in New York and runs through June 25th. I’m told that about 1,200 people will be attending. All of us who live in the university world owe these people a debt of gratitude. They keep us legal and make our institutions better.
