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The Case for Legal Counsel

By Net Assets posted 05-18-2017 08:30 AM


Risk Management |

Student misconduct. Faculty misconduct. Inadequate policies governing risk management and inclusion/diversity. Any of these issues and many more could result in costly and time-consuming legal action against independent schools. How can schools avoid them? David Hanson, CFO at Phillips Exeter Academy, and David Wolowitz, director and co-chair of the Education Law Group at McLane Middleton, addressed best practices for independent schools in a recent webinar, “Working Efficiently and Effectively with Your School’s Legal Counsel.”

Key takeaways from Hanson and Wolowitz:

  • Define the client: Legal counsel might represent your school in general, the board or a faculty member, depending on the case. Clarifying who the client is will help both the school and attorneys maintain legal privilege and confidentiality. “I may be working with administrators who do not want, for whatever reason, certain staff or faculty to be in communication with me, or even to know at any given time what I’m saying. But if the administrators don’t tell me that, then I’m left guessing,” said Wolowitz.
  • Identify a point person at the school: Choosing a single liaison between the school and counsel can minimize confusion and wasted time. When employees do need to communicate with a school’s attorney, they should understand which modes of communication will remain confidential in a court case. Email, for example, is not protected, whereas an attorney’s client communication portal is.
  • Define counsel’s roles and goals: Different types of counsel tend to handle different matters; some work on transactional, day-to-day issues, whereas others represent clients at trials and still others act as investigators into areas of misconduct. Select counsel appropriate to the conflict at hand and then clarify expectations and counsel’s deliverables. “A narrow scope can always be expanded later,” said Hanson. “We work with our attorneys to get down to the critical issues. It helps them do their research and advise.” It also saves time and money.
  • Monitor fees: Sensitive cases may require partner-level expertise, but in other situations, paralegal or associate-level advice is sufficient. Check your bills to ensure the appropriate level of counsel is providing advice. Establishing a timeline for deliverables can also help limit spending.
  • Involve the board: Schools’ boards often hear from counsel only in emergency situations and when swift action is required. Including counsel in routine board executive meetings can help schools identify and mitigate risks and lay the groundwork for a stronger relationship that will fare better under stress. Board training on how to deal with a crisis in advance of a crisis and how to deal with counsel and the administration, all done in a non-crisis atmosphere, is particularly helpful,” said Wolowitz. Counsel should never serve on the board, however, to prevent conflicts of interest.

For further insight into these topics and many others, including working with insurance brokers, anonymous reporting and after-the-fact reviews of legal action, view the webinar, transcript and slide deck (NBOA members and webinar attendees only).


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