Co-Sourcing Legal Resources

New England Journal of Higher Education, The, Winter 2005 by Smith, John J

The First Thing We Do, Let's Share All the Lawyers?

For better or worse, most small and mid-sized private colleges and universities in New England make do without employing staff lawyers, relying instead upon the ready, willing and, it has been said, unduly expensive, private bar to meet both routine and extraordinary needs. (Public institutions, rely on existing government legal resources, such as the state attorney general's office, and their options to go outside are more limited.) Whatever the perceived immediate or long-term benefits of in-house counsel, most college administrations are loath to increase costs for such "overhead" even in an age when the consequences of legal missteps related to employment decisions, academic freedom, student safety, environment quality compliance and intellectual property may be very costly.

This quantitative bias comes at a qualitative cost. In-house counsel provides dedicated, immediately available legal expertise and an intimate familiarity with the business environment and culture of the institution, over time becoming an indispensable adjunct to senior management. In-house counsel can also effectively deal with outside counsel for complex or specialized legal needs as they arise.

One way for private institutions to reap some of the benefits of this close association while perhaps reducing legal costs would be to pool or "co-source" legal resources in an effort to create synergies and leverage replicable solutions to common legal problems.

So it may come as some surprise that a recent survey of business officers, attorneys and consultants on New England campuses found that the notion of sharing a dedicated single source of legal support, while superficially attractive, is fraught with practical and ethical difficulties, and likely would yield only modest gains. The survey was conducted during 2003 and 2004 on behalf of the Boston Consortium for Higher Education, a coalition of 14 private colleges and universities, mostly in Greater Boston, but stretching to Providence, R.I. Six consortium members, which do not have in-house legal staffs, were the primary focus of the survey.

Among the range of possible services that shared counsel might provide, consortium members placed the highest value on "triage"-separating out the urgent or highly problematic from more routine issues.

But pity the poor attorney (if that's possible) trying to play that in-house role for multiple and diverse clients, all of whom expect prompt, focused, customized service from "their" lawyer. Besides, while certainly there are "easy questions" and equally easy answers, the truly valuable service rendered by the attorney is in knowing whether something is indeed as simple as it seems, and to avoid the temptation under pressure to offer a ready but perhaps incomplete judgment. For example, a seemingly straightforward copyright question on a faculty-authored work or "fair use" of third-party material in a digital course may require thorough fact-checking, review of applicable school policy guidelines, relevant contracts, employment and license agreements and hard legal analysis.

The "First Aid" lawyer needs to have the judgment and experience to be able to spot issues that the client may not see, and to know when to declare a matter beyond his ken-to set aside the time to research the questions thoroughly or to refer to another lawyer who has the necessary expertise.

Seen and Not Heard

Despite the obvious benefits to a college of having legal counsel who is closely familiar with the institution's operations and culture, many educators, at least among those surveyed, express an almost visceral reluctance to permit lawyers-on staff or on retainerto play a more influential role in day-to-day management. They suggest that lawyers should play a more reactive than participatory role in institutional affairs. There is a tension between two conflicting expectations: on the one hand, a ready familiarity (and attendant rapid responsiveness) with one's operating environment, which comes with steady participation in that environment; and on the other hand, a desire to use counsel sparingly and only "just in time."

Finally, colleges must consider the ethical constraints on a single attorney acting as in-house counsel to multiple -probably competitive-institutions. Even with a specifically defined relationship in writing with each member school, a co-sourced attorney could face significant challenges trying to manage confidentiality, conflict issues and work priorities for each of his "primary" clients.

Model rules of ethical conduct provide that a lawyer shall not represent a client if effective representation of that client would be materially limited by the lawyer's responsibilities to another school or third party. How would an attorney representing college A in an employment negotiation with a particular professor avoid conflict with the interests of her other client college B, which is embroiled in a tenure dispute with the same individual? For the attorney hired by a consortium to support the legal needs of its members, conflicts become even more complex. Who is the client, the consortium or its members?