Lawyers are legal advisors and advocates. Legal Counsel is neither the management of the University nor policy makers for the University, although there is often an interface between legal advice and business decisions when determining policy and law. To this end, the Office of the General Counsel (“OGC”) is available to consult with and advise decision and policy-makers in making business decisions, developing and determining University policy and developing procedures to implement those decisions and policy.
The OGC’s ultimate and always client is the University. However, the University can act only through its duly authorized representatives. In this regard, the General Counsel ultimately reports to the Board of Trustees of the University pursuant to her professional responsibilities as a licensed attorney and officer of the court. Generally, however, on daily basis, the General Counsel reports to the President who serves as the Chief Executive Officer of the University, pursuant to the Bylaws of the Board of Trustees, as amended from time to time.
All University employees dealing with the OGC in their University-related capacities will be regarded as our clients, absent a conflict of interest between representing the best interests of the University and the University representative who is seeking the legal guidance and advice of the OGC. The OGC supports the Board of Trustees in performing its fiduciary duties for the University. If there are conflict situations, the OGC will deal with these on an individual basis and advise involved parties promptly of such conflict. When employees are seeking legal advice on matters involving University-wide policy implications, there should be consultation with the President, Provost and Academic Vice President, Vice President for Finance & Administration and Treasurer, the appropriate Vice President’s Office and/or Dean in case the matter to be addressed is solely one of policy or a business decision, and not one with legal implications.
Legal Risk Management Support
As a legal advisor, the OGC can identify significant legal risks which would be presented by a proposed course of action. It is not OGC’s function to determine whether the risk is acceptable. Determining which risks are to be assumed is the prerogative and responsibility of management absent a clear applicable legal standard or policy of the University to the contrary. The fact that a proposed course of action might result in a lawsuit against the University is not of itself a reason for rejecting the course of action provided the appropriate decision and policy maker appreciates the legal risks and is not violating the law or existing University policy.
Development of Alternatives
Attorneys are sometimes obliged to advise that a proposed course of action is contrary to law or presents a high risk of being challenged on legal grounds. In any such case the OGC will be as diligent as possible in seeking to advise on one or more alternatives that would accomplish the objective (or something approximating the objective) and that are legally acceptable.
Availability of Consultation at Early Stages
A significant element of the work of the OGC is the review of proposed agreements and contracts. Many of these will be in final or near final form when first reviewed. This does not facilitate an efficient review process. In many instances, the OGC should become involved at earlier stages of contract negotiations. Especially with regard to proposed new ventures or proposed new ways of approaching transactions with legal implications, the OGC would be pleased to consult with appropriate employees at the early stages to assist in developing concepts so as to avoid or minimize subsequent legal difficulties.
Matters come to the OGC because they are perceived or identified to have legal significance or implications for the University. The value and effectiveness of legal advice are often a function of their timeliness and the availability of institutional information to OGC. University clients are encouraged to identify their time requirements, to include the General Counsel in administrative discussions that do or may touch upon policy issues and/or have potential legal implications for the University and to indicate priorities among items they are submitting for legal review and advice.
Consultation Within the Office and with Outside Legal Consultants
The opportunity for proximate and prompt consultation with the OGC is a benefit of the University’s collegial and collaborative tradition. The use of any outside counsel on a consulting basis where additional or specialized legal expertise may be required will be evaluated and retained solely through the OGC.