We are seeing an emerging trend in higher education: confronted by the same complex legal, social, risk and safety issues that exist at universities, American colleges are recognizing that it is often essential (and not a luxury) to have an experienced General Counsel as part of the senior leadership team. Is your college ready to hire its first General Counsel?
The increased demand for General Counsels at colleges is driven by several factors. First, there are important issues and controversies that receive immediate publicity through social media and otherwise that require tactful handling and quick response. Examples include campus protests and sit-ins, “active shooter” threats, and sexual violence on campus. Rapid response to ensure safety is the primary concern here followed by a desire to avoid reputational harm. A poorly managed response can impact reputation, rankings and ultimately enrollment.
Second, colleges are increasingly confronted with novel issues that require guidance from the steady hand of a General Counsel. Examples include issues of cross gender and accommodations for cross gender individuals, acknowledging and addressing past ties to slavery, and Title IX matters.
A third factor is the desire by colleges to manage legal costs. Many colleges find that they can justify the cost of hiring their own General Counsel by the cost savings realized from reduced reliance on outside law firms. Use of outside counsel will not be eliminated, but significant legal work can be internalized depending upon specific institutional needs. Additional cost savings are often realized through a General Counsel’s management of the work performed by outside law firms and through negotiation of more favorable fee structures.
What legal skill set should your General Counsel have if you are hiring your first lawyer? Our higher education engagements include an early analysis and evaluation in which we walk clients through an assessment of their use of outside counsel and an assessment of the areas where a lawyer embedded on campus would be most valuable. These are some areas that every college should consider when considering the scope of its legal needs:
Enterprise Risk and Risk Tolerance:
What is your college’s number one enterprise risk and how risk tolerant is your institution? Is the primary enterprise risk also a legal risk or does it have legal implications?
How embedded does your institution want the legal infrastructure to be? Are you looking for a process advisor? Do you want a General Counsel who will work closely with the Board of Trustees, the Administration, and the Faculty to implement legal policy change or will the General Counsel give more general advice and counsel on the law and its impact on your college?
Governance:
How is the college governed both in terms of the legal function but also corporate governance or institutional governance? Is the General Counsel part of the governance committee? Will the General Counsel serve as the Corporate Secretary for the Board of Trustees?
Compliance:
Is there a separate compliance department? Will compliance for state and federal reporting requirements report into the legal department or will it report directly to the President?
Intellectual Property and Technology Transfer:
Faculty and student research can be valuable intellectual property of the academic institution. How is it protected and can it be commercialized? If so, how much of intellectual property or technology transfer law should the General Counsel be familiar with? Is this an area that needs to be outsourced?
Employment Law:
There are often a wide range of employment matters that arise with faculty, administration, athletics departments and other college employees. Unionized employees also require a specialized skill set.
Contracts:
Real estate, vendor, licensing are a few examples of the types of legal contracts the General Counsel may be asked to review and weigh in on.
Athletics and Title IX:
These two areas are sometimes managed together or they may be separate. Are you current in your accommodation requirements? Athletics could also encompass branding and licensing agreements.
Crisis Management and Security:
Is there a crisis management plan and if so, what role does the General Counsel have in the crisis management? How will Security and the Legal Department interact?
One size does not fit all and not every college will have a need for the same competencies in its General Counsel. Our goal here is to provide questions that leadership at your college can discuss and reflect on when considering how best to service your legal needs. Each college is unique and will create and organize the legal function that best addresses its particular needs. We are available to help guide and assist you in evaluating your needs and in defining the General Counsel role.
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