The University Counsel: A Roundtable Discussion

Four eminent academics and attorneys reflect on the role of the university's lawyer.

Participants: William R. Kauffman, Robert O'Neil, Robert Post, and Wendy White

For many faculty members, however, the university counsel is a shadowy presence who lurks in the upper administration, wielding enormous yet undefined power. We know little about his or her job, and, if relations with the administration are strained, we often view the counsel in adversarial terms. In order to clarify matters, Academe asked several distinguished educators and attorneys to demystify the office and explain just what the university counsel does and for whom.

Our panelists are William R. Kauffman, vice president, general counsel, and secretary of the university at Saint Louis University; Robert O’Neil, professor of law at and former president of the University of Virginia; Robert Post, professor of law at the University of California, Berkeley; and Wendy White, vice president and general counsel for the University of Pennsylvania.

White: The technical answer is that the university counsel is accountable to the president of the university and the board of trustees. That answers the question in the legal sense. As a practical matter, however, the university counsel is, and has to be, accessible and responsive to all of the institution’s various constituencies—the administrators, the faculty, the trustees, and, to some extent, the students. Most issues that involve the university involve faculty, administrators, and students in some real sense, not in the abstract sense in which counsel represents the board. So my simple answer is that the counsel is accountable to the president and the trustees and must be accessible and responsive to all these various groups.

Kauffman: Technically, the rules of professional conduct provide that the lawyer employed by an organization represents the organization, but the key language is "acting through its duly authorized constituents." So, in many cases, the question of who may be the client is answered by the statement, "It depends." Typically, it is the president, the vice president, and the senior administrators, but it could get down to students and even possibly to related entities.

O’Neil: Let me just add a slightly different or more complex perspective from the public sector, where sometimes the university attorney is accountable to and governed by—and in a sense, therefore, represents—the people of the state or the commonwealth through the attorney general’s office. That creates an additional and substantial complexity.

Post: From the perspective of professional ethics, it is exactly right to say that counsel for an organization represents the organization itself. The decisions of the organization are normally understood to be those that are articulated by its duly authorized representatives. But because a university counsel’s loyalty runs to the university, and not to its officers, there may be circumstances in which counsel may have the ethical duty to differ from the otherwise duly authorized representatives of a university. These situations can occur if counsel comes to believe that a university’s representatives are not acting in a legal way or are acting contrary to the legally constituted interests of the university.

Academe: Your comment suggests that university counsel may encounter conflicts in trying to balance their different missions. How do they reconcile them?

Post: Any counsel to an organization has exactly the same set of potential conflicts. University counsel is in the same position as other corporate counsel in having to reconcile possibly conflicting ethical imperatives.

White: The job of the university counsel is to identify and evaluate the various risks and benefits of proposed projects and concerns from the various perspectives of the university, and then to articulate those risks and benefits so that everybody understands what the issues are. I don’t think the university counsel is a decision maker. Rather, our job is to analyze all the various interests, suggest how they might play out, propose solutions, provide advice, and then let others resolve those issues.

O’Neil: A complicating factor in the academic setting is the overlay of what some might describe as principles of academic common law—not only those of academic freedom but of academic values, traditions, and precepts—which don’t have a full array of counterparts in the corporate context or any other. It has always seemed to me that this additional body of principle, precept, and tradition—it’s not really law—does complicate the reconciliation process.

Kauffman: I would throw in an additional consideration to distinguish the higher education community from the corporate setting. I think our organizational structures tend to be a lot flatter, less hierarchical. That raises the question of access. Who has access to the general counsel? In the corporate structure it is probably much more limited, whereas in the university community, you need to be accessible. That accessibility in itself starts to create the type of conflicts to which counsel might be exposed, whether the questions involved deal with the academic common law or personnel matters.

Post: It is also important to distinguish between litigation and advice giving. A university counsel who is required to defend a university in an actual lawsuit will play a very different role from a counsel who is simply asked to provide legal advice. University counsel will sometimes also be asked to make decisions, not merely to give advice.

For example, the University of California in the recent past was considering promulgating regulations concerning the use of e-mail. An important question was whether and in what circumstances the university would review the private e-mails of faculty. If this question were referred to UC’s counsel, he might well have to reconcile (a) the administration’s concern to prevent faculty from wasting public resources or engaging in illegal conduct with (b) the faculty’s legal rights of privacy. Counsel would have had to balance the interests of the faculty against the interests of the administration in reaching a resolution of this question.

Academe: What about some of the other issues that require such balancing? Given the current climate of litigiousness, to what extent does the counsel have to balance his or her concern about the risk of litigation against what Professor O’Neil has called the academic common law that protects the university’s educational mission?

O’Neil: I would say first that the litigiousness of academic life is nothing new. The issues change from time to time, but the propensity of aggrieved sectors of the university community to take issues to court—that’s been remarkably constant over time, despite the emergence of new public interest groups and obviously changing issues and constituencies.

Second, I would observe that litigation isn’t always bad. Indeed, as I recall vividly from my early years at Berkeley in the 1960s, there were times when one’s fondest hope as a university attorney was that an issue would be litigated so that you could get it off the streets and out of Sproul Plaza and into the courts. That’s not always a desirable outcome.

Indeed, as law teachers, we keep telling our students that litigation represents the breakdown of the system, and generally that’s true. But I would say that in the academic context, one tends to view litigation with a greater ambivalence, at certain times at least, than in almost any other sector.

White: That’s an interesting perspective, but I must say, I can’t think of an example of a case where I thought litigation would be a useful way to resolve any of the problems we have on campus. We work very hard in almost every case to try to find some way to avoid litigation, not always successfully. I do agree, however, that there are times when the only way to preserve institutional principles and values is to litigate. So in that sense, I agree that litigation can be a necessary evil. But it certainly does eat up the resources and time of universities.

O’Neil: Since I basically agree with Wendy’s view in most circumstances, I would add another concern. Probably more than in almost any other sector, litigation in higher education runs the risk of having an issue of enormous importance to the institution decided by an outside tribunal that may or may not have any understanding of academic values and principles. In the corporate world, a court can make a mess of a commercial or a securities law issue, but that doesn’t have quite the same gravity that is incurred when a very sensitive academic issue goes outside.

Post: Bob’s observation raises an important point. Corporate litigation is mostly about transactions that can be assessed in terms of costs and benefits. Litigation involves the costs of doing business. Much university litigation is of this character—litigation over labor matters, for example. But university litigation frequently assumes very different dimensions. Universities have principles that they defend, that they seek to endow with legal force. I think a university counsel ought to be loyal to those principles. That seems to me a very significant point of contrast with the private corporate sector.

White: That’s exactly right. In the corporate sector, questions of whether or not to litigate are essentially questions of costs and what the financial benefits will be as compared with those costs. In a university setting, although cost is one component, there are many other factors. That gets back to the point made earlier about different constituencies. There are constituencies who believe that certain principles ought not to be compromised. The cost of upholding those principles in terms of dollars can be significant, but the principles are worth the money and the effort. The hardest issue that university counsel faces is balancing the fiscal responsibility of the university with the academic mission and underlying principles.

Kauffman: We might also want to differentiate between the types of litigation. For many of the entrepreneurial activities in which colleges and universities have engaged over the last ten years, I am not sure that the decision-making processes have been any different from those of a corporation—for example, in determinations of whether to defend an intellectual property claim or pursue an infringer.

However, the questions relating to the unique character of the academy are where the academic common law starts to come in and where greater tensions exist as to whether you really want to take your case downtown and play it before a judge assigned by lot, who may not have any connection with the university other than having attended one at some point in his life or her life.

Post: Suppose that the university administration wants to pursue an intellectual property claim against a faculty member, say by asserting ownership of the copyright to teaching materials that were distributed through the university Web site. That would be an example of the kind of conflict we were talking about earlier. How would you go about resolving that?

White: We would set up a committee. Isn’t that what everybody does? [Laughter]

Post: And then when you get the report of the committee, what would you do?

Kauffman: Actually, copyright is an easy issue, because most of the major colleges and universities in the country have acquiesced and said there is this bundle of rights in the material the faculty member may produce that we will not claim. But I think that Wendy’s answer is an appropriate one, too. That is, we probably would have a committee, because one of the other roles counsel plays in a university, not necessarily as an advocate but as part of the university team, is to encourage processes that promote dispute resolution. To the extent that universities can resolve matters within their own walls, they are much better served.

Post: Does turning the problem over to a committee mean that it is transformed from a question of rights to one of policy?

White: An intellectual property question—who owns the copyright or who owns a patent—is usually a question of both law and university policy. What the committee would do—a committee made up of faculty and administrators—would be to look at university policy and how it applies in that particular situation to see what rights the faculty member has. So, I suppose you’re right that it becomes a policy matter.

Post: So would it be correct to say that whereas in the private sector a lawyer might give advice based on legal rights, and so advise a corporation on the basis of whether it would win or lose a lawsuit, in the university setting, counsel might function differently? University counsel will try to convert conflicts into questions through which the university community as a whole can come to policy resolutions about what ought to be done.

Kauffman: That answer assumes that the university has had the foresight to deal with these issues in advance, to develop a copyright or patent policy that identifies the various interests that may be involved. Such foresight—if I could return to the subject of the role of counsel in the university—is an important ingredient of what we try to do for our client. That is, we anticipate problems. Clearly, yes, we could go out and assert that maybe a project was a work for hire in the case of copyrights. But I think we are better served by having well-defined policies that deal with these questions up front. Then we can ask, "What does our policy say, have we followed it, and what is the process for resolving the disputes within the policy?" In such a case, the role of counsel is really to facilitate the implementation of that policy and its dispute-resolution mechanism.

Academe: Aren’t we describing a different role for the university counsel here, that of someone who helps make university policy? Certainly, it must complicate matters for the university counsel to act as both a lawyer and a policy maker. How do you deal with those complications?

Kauffman: It is critical for the success of counsel within the academic setting to work with his or her clients to help them understand the role of counsel. While I also serve as an institutional vice president, I tell my clients that my job is first and foremost to be their attorney. If we are deciding a policy matter, I make it clear when I step out of my role as attorney and start to serve as a policy maker. If for some reason I step back into the role of counsel, I make that clear as well.

That is critical to maintaining one’s credibility within the institution. If attorneys are not careful to distinguish the role they may be playing at any given moment, there is a real danger that the people in the room will be confused by it.

O’Neil: I completely agree with Bill’s statement, but I am aware that quite a number of people take a very different view and believe that there has to be absolute separation, that the more the university counsel gets involved in policy making, the more those lines get blurred.

White: It seems to me that this is a debate more in the abstract than in the real world. Lawyers provide legal advice, and the line between legal advice and advice about policy is often very thin. A lawyer can say, "This is what I think the legal rights and obligations are. This is what the university policy is. This is how I would resolve these issues." Now, the last sentence, "This is how I would resolve these issues," is often a mix of legal and policy analysis. But a lawyer’s advice is always just that—advice. I don’t think that lawyers on campus are policy makers. University counsel may draft policies, but those policies have generally been vetted through all kinds of administrative committees or faculty groups. Lawyers are facilitators, but not policy makers.

Kauffman: Wendy is absolutely right, but people may perceive them that way—as the shadow policy makers, who tell the provost and the president what to do. Sometimes the president may say, "On advice of counsel, this is what I am going to do." That can cloud the role. But if counsel steadfastly explains what counsel’s role is in an institution, and does so even on unimportant matters so that people are comfortable about that role, then there will be much less tension about the whole process of decision making within the university and about the role of counsel.

Post: Could we make a distinction between two different images of university counsel? One image is that of a legal answering machine. If you have a legal problem, you ask counsel, and counsel tells you what the law is, what your rights and obligations are, and what risks of legal sanction attend various courses of action. In this model, counsel is passive and merely responds to requests for legal guidance by the university.

A second image, which we stressed earlier in our conversation, envisions university counsel as responsible for creating policies that bring together constituencies in the university community around questions that have legal ramifications—questions like copyright or affirmative action. Counsel anticipates these problems and mobilizes the resources of the university to create policies that are legally defensible, politically acceptable to the university’s constituencies, and consistent with the principles that the university is dedicated to protect.

This second image of university counsel blurs the distinction between policy and law. A proactive university counsel can’t simply say, "I’m taking off my hat as an attorney and putting it on as a vice president." The role of policy maker and of attorney are bound up together.

Kauffman: It may depend on the subject matter. But in the sense that counsel can help mobilize the people who decide, the university attorney becomes the facilitator, the one who can provide information. For example, he or she can tell the provost, "I notice we do not have a financial exigency policy. Our enrollment is up this year. The endowment has never been greater. Now is the time for you to work with the faculty senate to develop such a policy." In that case, the counsel is urging the university to be proactive, to speak to an issue that we hope will never arise but that nonetheless is something that an institution ought to address in its comprehensive policy document. Then the counsel may serve as an ex officio member of the committee to deal with that issue, to explain what various cases may have said and the like. But, ultimately, the people on the academic side of the institution, and then the president, and conceivably the board will decide the matter, and the counsel is not in that decision-making mix.

Academe: We’ve been talking about the university’s different constituencies and the ways in which the counsel can serve the institution as a whole. But what about relationships with individual faculty members? Many faculty members don’t know if they can consult the university counsel when problems arise over their educational responsibilities. Matters of grading, for example. To what extent does the university counsel represent them? Does the university counsel represent them?

White: If a claim is made against a faculty member who was acting in his or her official capacity, then the faculty member is acting for the institution and may be represented by the university counsel—whose job it is to represent the institution. So, for example, university counsel would defend a faculty member in a grade dispute with a student. But the university counsel doesn’t represent faculty members when they have a complaint against the institution. Then the faculty members have to have their own counsel. In short, when faculty members are acting on behalf of the university, then counsel’s role is to represent them in that capacity.

Post: Would it be fair to say that university counsel represents faculty insofar as faculty (in the judgment of counsel) are acting in the interests of the university? When faculty act in ways that are adverse to what the counsel believes to be the university’s interests, counsel may take positions adverse to the faculty.

O’Neil: I’d expand the scope a bit more broadly. There may be times when a conscientious university attorney would not be prepared to say that a faculty member is acting in the interest of the institution, but is acting consistently with the defined responsibilities and tasks that the institution expects of or has assigned to that faculty member. Under those conditions, save for the unusual situation that would put the university attorney in an adversarial position, it seems to me that representation directly or indirectly is appropriate.

Kauffman: Also, the counsel does not always make the decision as to whether there will be representation. For example, in some states or private institutions, that decision will be triggered by the board of trustees or by an independent counsel.So the counsel does not necessarily sit in his or her office flipping a coin and saying, "Should I or should I not represent this faculty member today?" Often, a host of other people could be involved in the decision.

But, ultimately, the triggering mechanism is the judgment that the person was acting in good faith and in a manner that he or she reasonably believed was not opposed to the best interest of the university. Other people can make that decision, and then counsel becomes involved on behalf of the faculty member.

Academe: What about academic freedom? That has to be an important element in the institution’s mission. What role does the institutional counsel play in defending the academic freedom of individual professors?

O’Neil: It depends on where the threat to academic freedom comes from. If it’s internal, an action taken by the institution, then you’ve almost certainly got a direct and unavoidable conflict. On the other hand, if it’s external, it does not necessarily create a conflict, and, indeed, the interests of the institution may be closely allied with those of the individual.

Post: Sometimes the distinction between internal and external threats doesn’t capture the full complexity of the situation. For example, if a government funding agency charges that faculty have misused state moneys and therefore threatens to eliminate the university’s ability to receive grants, the question arises whether the interests of the university require it to defend faculty or instead to side with the government and sanction potentially malfeasant faculty. You can get either kind of resolution.

White: Or, for example, if you’re dealing with a corporate sponsor of research on campus, then the role of the university counsel is to protect the faculty member’s academic freedom and right to publish. On the other hand, if you have a tenure committee that’s made a decision that a faculty member believes was based on some infringement of academic freedom, that’s not a situation where the university counsel could come and defend the individual faculty member. So defend against whom is the question.

Academe: So, if I understand you correctly, when it comes to academic freedom issues, the university counsel would probably draw the line at personnel matters. Is there any role that counsel can or should play in such matters—especially when there are unfavorable decisions with regard to promotion or tenure? In particular, what kind of advice should the counsel give to a faculty member who is denied tenure for what he or she thinks are inadequate grounds?

Kauffman: That depends on the setting. Within the institution itself, assuming there is an opportunity to appeal, the role of counsel, in my judgment, is largely determined by what institutional procedures may say about the involvement of attorneys.

My preference has been to help construct processes that minimize the role of counsel and keep the issue as much a faculty proceeding as one possibly can. To the extent that attorneys might be involved, my goal has been to help to carve out that role so that ultimately a faculty committee is still in charge. Outside the university, it is a different setting, where the counsel becomes the advocate for the institution and defending the institutional decision.

White: If I get a call from a faculty member who was in the middle of a tenure-review process that she feared might result in an adverse decision, and who wanted my advice, my obligation is to tell her that I really can’t help her think the situation through, and that if she is uncertain, she should consult her own counsel. That is one of those circumstances in which university counsel has a clear conflict and cannot represent the faculty member in the promotion- or tenure-decision process. So the only appropriate advice is, "You might want to think about getting your own independent counsel."

O’Neil: I completely agree. I think there’s a tendency to be as helpful as possible—university attorneys tend to be people who are committed to collegiality and to the institution. They often have lots of friends on the faculty. So the natural inclination is to be helpful. But to the extent that being helpful results in creating expectations, the sooner you draw the curtain, probably the better for everyone, including the faculty member.

The one thing I wonder about is whether it would be seen as appropriate for the university attorney’s office to have on file a list of local lawyers who are known to have represented faculty and who generally have a good working relationship with the university. They’re the people who would probably do the best job for the faculty member, and they’re also the people with whom we’d most like to work.

White: Although I would love to be able to do that, because there certainly are some lawyers who are easier to work with than others, I really don’t think that’s our role either. We could be criticized for sending somebody one way rather than another. I think the faculty member would have to talk to his or her colleagues and find a lawyer that way.

Kauffman: I agree with Wendy. In fact, people who have referred others to lawyers who have been unsuccessful have found themselves to be defendants in actions because of the bad outcomes that the attorney got the person. You might refer a person to one of the bar association’s referral agencies that help people find counsel. But to provide a list of the university’s favored attorneys—and I do not necessarily mean favored because the university has been successful, but those people who seem to be reasonable and are vigorous advocates—I still think that would be inappropriate.

Academe: They could go to the AAUP.

Post: And they do.

O’Neil: There is one area on which we have touched, but to which I’m not sure we have done justice. That is the responsibility or expectation that the university attorney will provide representation for grievance committees when they are subject to either internal or external pressures. It’s one thing to be a sort of staff counsel—that’s probably not appropriate. On the other hand, when a grievance committee simply does what it’s asked to do by the institution and is then sued, that seems to be a classic instance—even more so than one in which the faculty member is sued on the basis of a grade—where there is an expectation of institutional representation.

White: That seems right. If the grievance committee is sued, either as a committee or as individuals, as well as the university, the role of university counsel, I think, would clearly be to represent those individuals and the committee, together with the institution.

O’Neil: Of course, as a practical matter, if you don’t do it, you’re not going to get anybody to serve on that committee the next time.

Kauffman: It is absolutely critical that the university provide a defense for these people. It is the same position we take with respect to those who participate in the tenure-review process. If we are going to have a process by which the faculty participates collegially in the governance of the university, then it is incumbent on the university to step up to the plate and assure them that if they exercise their best judgment on behalf of the university, the university is going to go to bat for them.

Academe: We need to sum up. And I wonder if any of you would like to do so by trying to define what makes a university counsel effective.

Kauffman: The role of counsel in the university setting is incredibly broad—in many respects, it is one of the last general practices. Since that role may differ depending upon the circumstances, I think it is important for counsel when times are good to have sufficient interaction with colleagues on the campus to help them understand what counsel does. I have always tried to help people understand the many sorts of things in which we may be involved. Part of that is a defensive mechanism so that they do not necessarily perceive us as that institutional black hole where requests go and never emerge. But at the same time, I want to help them to get to know us a little bit, to understand why we act as we do before problems arise, to help them believe that we are people who are intellectually honest, that we may at times have good-faith disagreements, but nonetheless that, ultimately, we are seeking to preserve what the university is trying to do.

White: I do think it’s important for university counsel to reach out to faculty members and to have ongoing relationships with them, so that as issues and questions arise, they know who you are, they know where you are, and they can trust the advice that you give.

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