The Rot and Enronification of Universities: Part 3

Part three is about the captive legal staff of Universities. First, though, there was a facebook post by someone that rang true. Maybe I am really describing all organizations. That led to thinking about the inherent arrogance in all of us. People who have no power at all may be made a team captain or a low level administrator and, pow!, they become arrogant. I remember one true asshole dean telling me, while he wore a cowboy hat, "I don't get ulcers, I cause them." That is an extreme example to be sure, but what is it about a little bit of power that fuels the worst in human behavior.

Now to the legal staffs. If you are hired by a corporation the corporation is your client. Ideally, like any client, you advice them about what is legal, illegal, risky, etc. And then if they get in trouble you advocate, within the bounds of ethical standards, the position that benefits the corporation meaning the shareholders. The key is that it is not about the individuals. When someone in the organization is in trouble there should be a decision about how can the staff best serve the client and not the individual. The problem is that it is the individuals who can hire and fire the legal staff. It may be fine for an individual client to shop around for an attorney but a corporation has to depend on others to do that.

Universities have the same untenable arrangement. The client is the institution, not the President, the Provost or the Dean. My sense is that the arrangement holds up pretty well before decisions are made. For example, a President may ask about a proposed program and the legal consequences.

Where is falls apart is when there is trouble. Instinctively the staff decides it must serve those who are in trouble without first asking, "What is best for the client." One of best indications of this, possibly unethical, tendency is how quickly a Dean will call the University's legal staff when he or she has screwed up. The idea that the staff should weight its obligations to its client, the University, when discussing an individuals dean's screw up is out the window. There appears to be no stepping back and saying "if we successfully defend what you have done will the client actually be better off." Again, the university counsel who declines to respond to the individual because it is not in the interest of the institution is also failing to respond to the person who can hire or fire them.

Yes, they are caught between a rock and a hard place and I have yet to know of one who has put the interests of the institution ahead of an individual administrator's cry for help. For the basic practitioner, adhering to ethical standards may mean losing a client. For University counsel it may mean losing a job which is part of a different career path thus also meaning the career path is blocked.

This all portrays University counsel as victim and that would be unfair. They can also aid in the desire to avoid transparency and the "not technically a lie" culture. Two quick examples:

1. A year or so ago at my schools a faculty member assaulted a student by shoving him. The punishment was one week suspension with pay during a holiday. Aside from looking for 14 students I could shove in order to get a semester off with pay, I was curious about University policy on physical altercations involving faculty. Repeated requests to University counsel finally resulted in the "why don't we meet and talk about it." Obviously no policy was to be written down and no one actually claimed to know anything about a policy.

2. Sometime ago the University issued a warning about using one's University affiliation to promote an idea. The idea, as I understood it, is avoid the implication that the University has a position. I wondered, how can this be the rule when law professors write briefs using University funding and identifying themselves as part of the university and invariable those briefs represent their personal views. So, I asked. "Difficult question," was the answer. "We'll look into it."

The point is that the University legal staff is in a tough position but they are part and parcel of the cover ups. Anyone who thinks the ill fated moves or lack of them at Penn State all took place without University Counsels' involvement at some level is more than likely in for a surprise. They are important cogs in the Enronification.