The Law & Education
Who is Your Lawyer?
(A lesson for Educators arising out of the recent Penn State tragedy)
A parent, a student or your school lodges a complaint against you, and you are asked to attend a hearing or meeting in connection with the complaint. Since the complaint relates to your duties in a school-related activity, you report the request to the school and ask for assistance at the hearing. Subsequently, the school’s lawyer meets with you and during your hearing sits at the table with you.
Is the lawyer really representing you? The simple answer, surprisingly, is probably not. A good rule of thumb is that a lawyer normally represents the entity or person who pays for the lawyer. There are, of course, exceptions such as when the lawyer is furnished by an educator’s union (if this is a service the union supplies), but if you think about it, a union is financed by union dues and union dues are paid by the union’s members.
It is common for an educator who needs to consult with a lawyer concerning a school related incident to ask the school for representation and, if a lawyer is furnished, the lawyer may not always clearly explain who is being represented. And, even when explained, and under the pressures of the moment, it is not unusual for the educator to not fully understand distinctions that the lawyer may draw. And, even when the educator believes that he or she fully understands all of the implications of the lawyer’s explanation, the educator may believe that the limited representation being provided (at the school’s expense) will be adequate since the educator may believe that he or she is innocent of any wrongdoing or that the matter is not serious.
If the interests of the educator and the school do not diverge, it may not make a practical difference. However, it is not unusual in a problematic setting for interests to diverge at some point, in which case (and assuming that the different potential interests are recognized early enough) separate counsel should be used.
A lawyer made available by the school has an ethical duty under his or her respective state’s rules of professional conduct to advise the educator that he or she represents the school, not the educator, that anything the educator reveals to the lawyer may be used to support the school’s position, and in the event of a conflict which may develop the educator will not be receiving the full (if any) benefit of counsel. Moreover, the lawyer should advise the educator that there is no duty of confidentiality between the educator and the lawyer, since the lawyer’s primary duty is to the school, and it is the school (and not the educator) who has the right to waive the privilege, if any, with respect to statements made by the educator to the lawyer if the school believes that doing so is in the school’s best interests.
If the lawyer is an “in-house lawyer” for an educational institution, the lawyer always will be representing the interests of the institution, if there is a conflict between the institution’s interests and the educator’s. When outside or special counsel is retained by the institution, the lawyer’s primary duty will be to the institution, unless the institution specifically hires the lawyer to represent the educator, in which case, the educator should request that the lawyer enter into a retention agreement directly with the educator so that there will not be any confusion when the institution’s and the educator’s interests diverge.
An issue was recently reported in the Penn State / Jerry Sandusky investigation, when Penn State’s athletic director, Tim Curry, and Penn State’s interim senior vice president for finance and business, Gary Schultz, testified before a Grand Jury last year and said that they were being represented by Penn State’s then general counsel, who sat at the table with them. And, according to the Patriot-News reporter who wrote the story, such statement was not corrected by counsel at the time although counsel is reported to have earlier told Messrs. Curry and Schultz (both of whom were subsequently charged criminally) that “You know, I represent the university. You can get your own lawyer.” A mistake like this is easy to understand, since Penn State’s lawyer actually took Messrs. Curry and Schultz to the hearing, and sat at the table with them when they were being questioned.
As a result of an educational institutions’ understandable zero tolerance policies towards sexual harassment, physical abuse and bullying, etc., an educator who is caught up in an alleged incident should immediately understand that the institution’s interests may divulge from the educator’s, and that, at a minimum, anything said to the lawyer furnished by the institution will not be withheld from repetition to the institution, itself, and that the institution may, in its best self-interest (and, depending on the circumstances, may be required to), reveal some or all of such information to appropriate authorities, all to the detriment of the educator. #
Arthur Katz is a member of the law firm of Otterbourg, Steindler, Houston & Rosen, P.C.