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I spent last weekend at Stetson College of Law’s very fine annual Law and Higher Education Conference, hosted by Peter Lake, one of the giants in the field. It was a great conference, but I realized afterward that while we talked a lot about particular areas of higher education law, we did not have a chance to discuss what is perhaps the most important issue from a practical point of view: how to use legal counsel in a smart and cost-effective manner. As a college president and state attorney general, I have both provided and used legal services. Here’s my advice on how to use those services to best effect.
Your Team Must Know the Law
If you want to use legal services in a wise and cost-effective manner, your most important goal is to make sure that the nonlawyers on your team can spot potentially problematic legal issues without help from counsel. In the best of possible worlds, your staff will know the law well enough to stay within well-established legal boundaries in their routine work and to recognize, in unusual situations, whether a potential legal issue exists or not, so they can consult with counsel when it is necessary. If they can do this, they will avoid liability and save money in legal fees.
To achieve this desired end state, the nonlawyers on your staff must be well versed in higher education law. Ask yourself: Does my financial aid team know what Title IV requires? Does my admission team understand what is and is not allowed under the federal courts’ affirmative action decisions? Do my student affairs and communications teams know Title IX and the First Amendment? If the answer to these questions is no, then send key staff to training -- short introductory legal courses designed for higher education professionals -- and get them up to speed. Yes, legal training is costly, but believe me, you will save significant money in the long run on legal fees and liability costs. And remember that if you get sued, the fact that your institution sent your team to get essential training may help prove a lack of negligence on your part.
Your General Counsel Cannot Be a Pass-Through
When staff members reach out to your general counsel for advice, it is critical that he or she handles the vast majority of issues in-house and doesn't just pass the work to outside law firms. In my experience, the overwhelming majority of legal issues that arise in higher education can be answered quickly without recourse to a firm. In some cases, this is because the law is relatively clear, but more often, it is because the potential risk is so small, a reasonable legal answer will suffice without having to pay for a more formal and exacting legal opinion. In many cases, I have told folks on my team, “If we do X, that is probably OK. The risk we will be sued is slight, and even if we are sued, the damages will be small.”
Counsel and Staff Need to Be Able to Spot Potential Legal Disasters
Your general counsel and senior staff need to be adept at spotting those rare issues, the one in a 1,000, that do pose massive risks. In these cases, your general counsel needs to be able to see what’s at stake quickly, hit the pause button before irreversible action occurs and then get talented but cost-effective counsel lined up to handle the matter. Doing this triage well is an art, and unfortunately, there is no real training substitute for experience and good judgment. If your general counsel cannot do this, replace them.
Measure and Compare Your Legal Expenses
How do you know if your legal team is performing well? Have your CFO track your in-house legal expenses, outside counsel fees, number of lawsuits and adverse legal judgments and settlements on an annual basis. Then, compare these metrics with those of comparable peer institutions at least once per year. This comparative benchmarking will allow you to see whether your legal management is efficient or not. Are you spending more than your peers? Are you paying higher settlement and judgment costs? Do you avoid liability more or less than average? Do you get sued more than other colleges? The only way to know whether your legal operation is functioning properly or not is to compare their performance, measured objectively, against the rest of the industry.
Do What’s Right
In some circumstances, your team may conclude that the least risky option, from a legal point of view, is not the best option in terms of student health, safety or learning outcomes. In these cases, where “doing what is right” is in apparent conflict with legal advice, what should you do? I would never advise my team to knowingly violate the law, but in some cases, where the law is not totally clear, I have told them that we should do what is right, regardless of legal risk, and if we get sued, so be it.
This approach -- prioritizing professional educational judgment over worries about potential liability -- does carry some legal risk, but it has two countervailing virtues. First, our ultimate goal is to provide a great education, and we need to pursue that goal, even in the face of legal uncertainty. We owe our students nothing less. And second, this strategy allows us to test and reform the law. I always tell my staff: if we are doing what we believe is right, and we get taken to court, it will provide us with an opportunity to explain to legal authorities precisely why we think our course is better, from both an educational and legal standpoint. If we lose, we will at least know that we have done what we believe to be right. And if we win, the law will change for the better.
