HIGHER ED INSTITUTIONS all face daunting and complex challenges today. But presidents of smaller, independent IHEs often lack the luxury of in-house general counsel. Absent this guidance on campus, another approach is needed for addressing legal issues related to student discipline, tenure denial, corporate governance, program closures, copyright and fair use, effective risk management, and management of matters in litigation.
Mount Mary College in Milwaukee serves as an example of the legal needs faced by similarly sized, independent IHEs across the country. After more than four years of providing legal counsel to Mount Mary and its president, my associates and I see that the college exemplifies how these needs are being met by embracing a strategic relationship with outside legal counsel.
Quality outside counsel centers on the attorney's education law expertise, responsiveness, effectiveness, and understanding of the school's mission and culture, says Linda Timm, president of the 2,000-student Catholic women's college. She adds that a willingness to work "in a creative, pragmatic, and efficient manner" is also key.
The general counsel model used by Mount Mary has been designed and refined during the last 10 years of my work with independent colleges and universities seeking ways to better manage operational expenses while addressing legal issues quickly and strategically. At Mount Mary, we use this model to review policies, contracts, and compliance procedures, as well as to assist in developing best practices to prevent legal exposure while allowing continued focus on advancing mission and strategic goals.
The legal services retainer is a planned budgetary expense, Timm says, which provides "greater freedom to utilize expertise brought by outside counsel in a proactive manner, without always being concerned with incurring the additional fees associated with individual consultations. Working with outside counsel allows us to develop better strategies to respond to the ever changing legal landscape of employment and other issues in advance of potential challenges."
My approach to helping IHEs overcome the challenges posed by not having inhouse legal counsel includes:
- A manageable monthly legal services retainer.It should be set with the president and the VP of finance after a review of the institution's legal issues and costs over a three-year period. Dues for the college's membership in the National Association of College and University Attorneys (NACUA) should be deducted from the retainer which should then be reviewed at three and six-month intervals along with changing institutional needs.
- A best practices audit.It can assess such matters as the state of handbook policies and procedures, contract administration, governance, and campus HR matters.
- Timely legal in-services. These are used to meet the needs of the whole institution or any of its constituencies. In-services may focus on effective supervision and risk management, tenure and promotion, student records, campus governance, harassment, or high-risk student conduct.
- Consultation with the institution's insurance carrier. The purpose is to review the patterns of issues facing campuses across the country, discuss risk management strategies, and provide an effective defense against matters in litigation.
- Preparation of, and consultation with, the outside firm's various practice areas. Its partners and associates will work on the variety of issues the college may face.
- Dedicated on-campus time. Meetings with the president, senior administrative staff, and faculty to address specific issues are essential.
Kathleen A. Rinehart, a partner at Whyte Hirschboeck Dudek S.C. in Milwaukee, leads the firm's education law practice. She is also a member of the Board of Directors of the National Association of College and University Attorneys. E-mail her at email@example.com.