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Role of University Counsel in the Grievance Process

The University of North Carolina General Administration
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Memorandum

TO:

The Chancellors and University Attorneys
 

FROM:

Lee Culpepper, Special Assistant to the President

DATE:

August 18, 1994

RE:

The Role of the University Counsel in the Grievance Process

The board has asked for a report on the use of legal counsel within the university system in the dispute-resolution process and the resulting potential for conflicts of interest or other ethical violations of The North Carolina Rules of Professional Conduct. I

The problem arises when a university attorney performs more than one function in connection with a dispute-resolution process or when two or more lawyers in the same university office advise different participants in the same case. In a nutshell, there are potentially more "clients" within the dispute-resolution process on the side of the university than there are lawyers to give independent advice. In such a case, the following may require the advice of counsel:

  1. The faculty member's department chair or other responsible supervisor.
  2. The campus administrator responsible for the final decision that permits the faculty member to invoke the review process.
  3. The faculty committee responsible for conducting hearings.
  4. The chancellor.
  5. The board of trustees.
  6. The president.
  7. The board of governors.
  8. The university (if civil suit is thereafter filed).

The basic premise of the university's internal dispute-resolution processes, as established by The Code, is that, at each level of the process, independent judgment will be used to insure the grievant's case is fairly heard and considered. There is, therefore, the potential for conflict or, at least, tension between the various levels of the review process.

There are three groups of lawyers that might get involved in the process in various capacities; the campus attorney (or attorneys)[1], the legal staff at general administration, and the staff of the attorney general's office. If you consider each campus legal staff, the GA staff, and the attorney general staff as a private law office within the meaning of the Rules of Professional Conduct, then you have essentially three lawyers (one from each of the three staffs) available to assist the eight different groups involved in the internal review process. There would be only three lawyers available because lawyers within a private law firm are assumed to know the confidential client information of each of the firm's clients and therefore are prohibited under Canon V of the North Carolina Rules of Professional Conduct from representing clients with interests adverse to those of their other clients or former clients. The following is the relevant portion of the Rules of Professional Conduct:

1Two schools have no lawyer on staff (NCSA and UNC-A), ten campuses have one lawyer (ASU, ECSU, FSU, NCCU, PSU, UNC-C, UNC-G, UNC-W (part-time), WCU, and WSSU), two schools have two lawyers (ECU and NCA&T), and two schools have 3 or more lawyers (NCSU and UNC-CH).

2Four lawyers on staff.

CANON V

of The North Carolina

Rules of Professional Conduct

A Lawyer Should Exercise Independent Professional Judgment on Behalf of His Client

Rule 5.1 Conflicts of Interest

General Rule.

(A) A lawyer shall not represent a client if the representation of that client will be or is likely to be directly adverse to another client, unless:

(1) The lawyer reasonably believes the representation will not adversely affect the interest of the other client; and

(2) Each client consents after full disclosure which shall include explanation of the implications of the common representation and theadvantages and risks involved.

(B) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) The lawyer reasonably believes the representation will not be adversely affected; and

(2) The client consents after full disclosure which shall include explanation of the advantages and risks involved.

(C) A lawyer shall have a continuing obligation to evaluate all situations involving potentially conflicting interests, and shall withdraw from representation of any party he cannot adequately represent or represent without using the confidential information or secrets of another client or former client except as Rule 4 would permit with respect to a client.

It would appear that the university legal staffs would find themselves in an ethical bind if you assume that each level of review is a different "client" within the meaning of the Rules Of Professional Conduct and that the same conflict rules applicable to a private law office would apply, Fortunately that is not the case.

First, each level of review within the university dispute-resolution process is not a separate client. The university attorneys have one client - the university. The various levels within the university that need legal advice are all part of the same client. No separate attorney-client relationship exists between the university attorney and the various levels of the review process.

The university attorney owes his or her loyalty to the institution. This is true despite the fact that the attorney may serve at the pleasure of the chancellor, the president, the board of trustees, or the board of governors. Since there is only one client, there can be no conflict between clients that would result in an ethical problem within the meaning of the Rules of Professional Conduct.

Furthermore, under the Rules of Professional Conduct, government lawyers are not treated the same as lawyers within a private law firm. Government attorneys are permitted and expected to represent multiple interests within their organization and these interests may sometimes be in conflict. The following is taken from the preamble to the Rules of Professional Conduct (page 425 of the 1994 edition of the Annotated Rules of North Carolina):

Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intra-governmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. They also may have authority to represent the "public interest" in circumstances where a private lawyer would not be authorized to do so. These Rules do not abrogate any such authority. [Emphasis added]

The State Bar has held, in Ethics Opinion ARPC," that a member of the Attorney General's staff may prosecute appeals of adverse Medicaid decisions against the Department of Human Resources, which is represented by another member of the Attorney General's staff.

Therefore, The North Carolina Rules of Professional Conduct are not violated by a university attorney representing several levels of review in the dispute-resolution process. Nor is it an ethical violation for two or more lawyers within a single staff to provide legal advice to different levels of the same review process.

The problem presented is not whether university counsel are in violation of the Rules of Professional Conduct. Rather, such multiple representations by university counsel bring into question the apparent independence of participants and thus the fairness of the dispute-resolution process. Can an attorney (or several attorneys within the same university office) provide assistance to multiple participants or levels in the grievance process without jeopardizing the premium on fairness envisioned by the Code?

Under the current university staff structure it is possible, and indeed necessary, for a university attorney to provide assistance to multiple levels of the process. The critical issue of when such representation becomes potentially unfair depends on the role the attorney is taking. In this context, it is important to distinguish between providing legal advice and being an advocate, Since there is only one client - the university - the attorney typically is not in an adversarial role when giving advice. Usually, advice concerns the procedural process of moving the case through the university system, and the attorney's role is one of neutral facilitator of that process. Advice also may include explicating relevant university policies and applicable legal principles. Within the institution, the university's attorney is the one most familiar with the policies and regulations concerning the process and with the history of how the campus has proceeded in past similar situations. There is little danger of unfairness to the faculty member if the attorney's role remains as advisor. However, when the attorney becomes an advocate the appearance of unfairness exists if the attorney thereafter assumes the role of advisor. Having once assumed an adversarial role, the presumption arises that the attorney can no longer provide neutral advice to the same or higher level in the dispute-resolution process. For example, if the attorney presents the respondent administrator's case in a nonreappointment hearing before the faculty hearing committee, presumptively the attorney cannot then advise the committee on a matter of procedure. Nor, presumptively, should that attorney thereafter advise the chancellor at the next level of the review process. The chancellor's role is to review the evidence presented at the faculty hearing committee and make a final determination as to the sufficiency of the faculty member's grievance. If the attorney has presented the administration's case to the hearing committee, the appearance of unfairness is evident if the attorney advises the chancellor on actions to be taken in light of the hearing. However, once the chancellor makes a final decision, the attorney would not then be precluded from advocating the chancellor's position before the board of trustees or the board of governors.

Having functioned as an advocate and, therefore, become presumptively barred from assuming the role of neutral advisor, can a university attorney, under any circumstance, give subsequent advice to participants in the dispute-resolution process? With due caution, it is possible. Clearly there should not be a blanket prohibition against such action. The participants in the process are intelligent, sophisticated people. Assuming full disclosure of the attorney's role as advocate in an earlier part of the process, the participants can probably recognize any bias the attorney may have and take such bias into account when seeking the attorney's counsel. Such participation by the attorney should, in fairness, be limited. Ideally, the attorney's advice should be confined to procedural matters that do not touch on the merits.

If there is one part of the dispute-resolution process where an attorney should never act as both advisor and advocate, it. is during the hearing before the faculty committee, This is the truly critical step in the review process. The party with the burden of proof (the grievant for nonreappointments and appeals under ' 607 of The Code, the university in dismissals) must present and prove the case before the hearing committee. The record that will form the basis for all other reviews is generated here. It is also, from a legal standpoint, the most complicated area and the one fraught with potential problems of evidence and sufficiency of proof. It is at this stage, therefore, that the potential for unfairness is greatest if university counsel play multiple roles in the process. 'The appearance of unfairness is obvious, for example, when counsel presents the administration's case against the grievant before the committee and then the same counsel advises the committee on matters relating to the evidence presented.

Although it is possible for an attorney under certain circumstances to play a dual role in the process, the better practice is for different attorneys to advise the different participants. This is the practice followed most often within the university. For campuses with more than one attorney and for the GA legal staff, the practice is to create artificial walls between the attorneys involved to eliminate communications between the attorneys about the dispute. Thus, an attorney might act as advocate and present the case before the hearing committee and another attorney within the same office remain free to advise the chancellor. The two attorneys simply do not discuss their roles with each other. In another example, the campus attorney may advocate the chancellor's position before. the trustees and one GA lawyer may advise the trustees on procedural issues. Another GA lawyer would then staff any subsequent appeal to the board of governors. This is, of course, an artificiality and is not ideal. The natural tendency is surely to give great deference to the position taken by your colleague, especially your senior colleague. However, it can and does work because the attorneys are not in a truly adversarial role within a truly adversarial process. And, in the final analysis, the faculty member still has the option to test the fairness of the system in a court of law where there is no doubt about what roles the attorneys will play.