About School Lawyers
The following are excerpts from Selecting and Working with a School Attorney: A Guide for School Boards which provides general information about the different facets of school law. This publication can be purchased at https://secure.nsba.org/pubs/item_info.cfm?ID=322.
- Historical Perspective
- In-House or Outside Counsel?
- Finding Legal Counsel
- Fee Structures
- Suggestions for Working with School Attorneys
- Expectations of a School Attorney
- Role of School Attorney in Policy Matters
- Preventive Law
- Bond Counsel
- Insurance Counsel Issues
- Evaluating School Attorneys
"Many school boards and school systems today consider their school attorney an important part of the management structure, often involved in ‘preventive law’ activities in the decision-making process. Many others should and, in the future, probably will do the same, because they will learn that in law as in medicine, prevention is often less painful than cure. Even in those states where the city, county or state government provides legal representation to school systems, there is an increased need for independent counsel from time to time."
"Why this shift in the role of the school attorney and in school districts’ need for legal services? We are a larger, more mobile, more interconnected society today than we were fifty years ago. We expect – often demand – more from our schools than we did back then. The 21st Century society will be even more complex and the knowledge and skills needed to succeed in it more varied. Parents’ fears for their children’s futures translate into increased demands on their schools. Taxpayers’ fears for their own futures translate into greater resistance to those demands. Employees jockeying for protection or advantage generate their own demands on the system. Being Americans, we often take those demands and resistances to court, or to the legislature for redress. In more detail, I see several general trends and a number of specific developments which have shaped the evolving role of the school attorney in recent decades." – Benjamin J. Ferrara from Chapter 1, Development of the School Attorney's Role: How We Got Where We Are
In-House or Outside Counsel?
"School districts must critically analyze their legal needs in making a decision on whether to hire in-house staff or to retain outside counsel. Factors such as the size of the district, its past experience with legal matters and expectations for the future, the complexity of its legal needs, the availability of expertise, and the cost of outside fees versus internal staff expenses must all be weighed in reaching this decision, with the recognition that these circumstances should be periodically reviewed and reevaluated. There are a variety of arrangements that can be utilized in hiring internally, including full or part-time employees, independent contractors or temporary employees, specialized or generalist positions, and positions combining legal and non-legal duties. Outside law firms have become much more competitive in the marketplace and are increasingly flexible in serving their clients’ needs and meeting budgets. Creative and careful management of either inside or outside legal services is both possible and necessary." – Patricia J. Whitten from Chapter 2, Inside or Outside? Considerations in the Decision to Employ In-House or Retain Outside Counsel
Finding Legal Counsel
"The recruitment, selection and retention of legal counsel is crucial to a school district. Few decisions can impact the efficient functioning of a school district as significantly as the retention of legal counsel. School attorneys are required to "wear many hats" in order to be responsive to the school district's multitude of legal needs. The most important factor that school boards must consider when hiring legal counsel is the experience of each prospective legal counsel in the substantive area of school law. Because school district legal counsel will likely be entrusted with solving a broad range of legal problems, such legal counsel must be widely experienced in the nuances of school law as well as the other substantive law issues which face school districts on a daily basis. Other areas include employment and student issues, and board procedure and oversight."
"A school law attorney must be experienced not only in the nuances of the substantive areas of school law which may form the basis for litigation, but also in the litigation process itself. A potential attorney's intangible qualities, while certainly difficult to measure, must be considered by any school board considering whether to retain the attorney. School board members must ask whether they feel comfortable around the attorney and whether that person is someone whom they can trust. Judging an attorney's skills and abilities is a difficult, but not impossible task. An attorney's resume is often instructive. Because of their important role in the community, school boards often operate in an environment of constant political pressure. School boards must regularly maintain the tenuous balance between effectuating needed change and preserving the status quo. This dilemma extends, periodically, to the retention of legal counsel. At the same time, the school board may be very concerned about its potential legal liability or the potential damage that could result from present counsel's inability to handle the project at hand. School districts should consider employing "special counsel" in such situations. School districts should consider soliciting written proposals to provide legal services from law firms and attorneys who regularly represent school districts within the state." – Melanie Gurley Keeney and Peter G. Yelkovac from Chapter 3, Selection, Recruitment and Retention of School District Legal Counsel
"The most common attorney fee structure is the hourly rate. An attorney's hourly rate refers to the amount of money that an attorney charges per hour of service to the client. Generally, the rate is based upon the attorney's experience and expertise. A less-common attorney fee structure is the flat fee or up-front retainer. This arrangement refers to the retention of an attorney with an up-front sum called a "retainer." The up-front retainer is intended to facilitate the provision of legal services without the administrative hassles and unpredictability of the hourly fee arrangement. Usually, this type of arrangement is cemented with a "retainer agreement," which states the terms of the retention. Numerous combinations or hybrids of these methods, and several other entirely different billing methods, exist. Some lawyers have begun to bill their clients on a "per project" basis. The client is charged one fixed fee per project, regardless of the amount of work involved or the difficulty of the project. Another fee arrangement is the contingency fee, in which the attorney receives a portion of any damages received in court or in settlement of a lawsuit."
"School districts seeking to employ attorneys must, at the interview of prospective counsel, ask each attorney or law firm the following fundamental question: How is your fee calculated? A school district should first ask the attorney whether there are different fees or rates for different services, such as representation of the client in the litigation process, i.e., representation in the event of a lawsuit. The attorney should be asked whether the same rates or fees apply to services provided to the school district at all times of the day or night, including weekends or periods beyond normal working hours. The school district should inquire as to whether the attorney's fee includes usual support services and products. School districts must convey to attorneys their expectations regarding disbursements." – Melanie Gurley Keeney from Chapter 4, Attorney Fee Structures
Suggestions for Working with School Attorneys
"All school districts need school attorneys at least some of the time, and all school districts need to know how to use their attorney effectively all of the time. Large or small, rich or poor, school districts are all involved in hiring and firing, buying and selling, transporting, teaching and caring for children. Every one of these activities is regulated to a greater or lesser degree by state and federal laws, courts and constitutions. Labor/management relationships, the powers and duties of the school board, public bidding, free speech, religion, due process, anti-discrimination laws, student rights, educational mandates, teacher competency, all of the acronym laws (ADA, ADEA, IDEA, FERPA, FMLA, ...); each of these is the result of a legislature’s or court’s decision to regulate what you – your district – can do and how you do it. The basic roles of the school attorney are to advise the district on how its policy options may play out under this mix of state and federal laws in order to avoid unnecessary legal problems, and to represent the district before the court, arbitrator or agency when legal challenges are raised." – Benjamin J. Ferrara from Chapter 5, Working Effectively With A School Attorney: Some Practical Suggestions
Expectations of a School Attorney
"On their oath, board members swear to support the constitutions of their state and the United States and to discharge their duties as required by law and to act in a lawful way. The properly engaged school attorney can provide the school board and the school administration with legal counsel and representation in the daily educational and business affairs of the school district."
"Why School Boards need legal counsel: maintaining compliance with laws (Civil Rights Act, Equal Employment Opportunities Act, Title IX, Religious Freedom Restoration Act, etc.), and reliance as a defense. The roles of the school attorney include ethical considerations, knowing "who is the client," the different roles of advocate and advisor, using independent judgment, awareness of possible conflicts of interest."
The attorney's best service to the school district may be keeping the school district out of legal difficulties. The courts have ruled that a school board's failure to consult an attorney and their ignorance of the law regarding due process procedures required by the U.S. Constitution is no defense to avoid liability. If the district does not call the attorney until the problem exists, it may be too late, or the problem may have progressed to a point where options for solution are few and solutions are costly to the district." – Edgar H. Bittle from Chapter 6, What to Expect of a School Attorney
Role of School Attorney in Policy Matters
"The role of the school attorney in carrying out policy is most apparent when representing the school board in adversary proceedings – particularly those in which the school board is the plaintiff – or when an action of the board is being challenged by an allegedly aggrieved party."
"Any discussion of the role of school district legal counsel in policy matters must answer the question, "Who is the client?" The longer counsel is employed by a school district the murkier are the origins of his or her employment. The membership on boards of education changes; superintendents may either come and go, or stay for long periods of time, resulting in the establishment of close relationships." – Ralph D. Stern from Chapter 7, The Role of the School Attorney in Policy Matters
"Preventive school law is a philosophy of using legal services on behalf of school boards that focuses on controlling legal issues whenever possible by anticipating problems and potential solutions in advance of unwanted litigation (including administrative hearings, grievance arbitrations and other related adversarial proceedings)."
"On the part of the school attorney, preventive school law assumes a strong knowledge and experience base in the representation of school districts. It also requires a willingness to promptly respond to client questions and needs. On the part of the client, preventive school law requires a willingness to communicate on a regular basis with the school attorney and make the attorney part of the school district's issue spotting and problem-solving administrative team early in the analysis of a legal issue, rather than waiting until litigation has been filed to seek legal guidance. The uses of the school attorney as a member of the board/administrative team for prevention purposes can be seen in a variety of contexts, including, by way of examples, examination and counseling on proposed personnel actions, determinations involving commercial purchase contracts which the district may enter or wish to rescind, planning for school constructions and renovation activities, and providing analysis and legal advice in connection with school policy modifications which may affect students, parents and employees. When utilized in this preventive manner, school attorneys have well proven to be very cost effective for their clients." – Margaret A. Chidester and Benjamin J. Ferrara from Chapter 9, The School Attorney as a Preventive Law Practitioner
"Today, bond counsel are lawyers engaged to provide an expert and objective legal opinion with respect to the validity of bonds and other subjects, particularly the tax treatment of interest on the bonds. The opinion is an objective judgment rather than the partisan position of an advocate. It ordinarily is required by both issuers and investors."
"As noted at the outset, bond counsel must be mindful both of the law governing bonds and of the historic customs and practices in the field, the nature and continuing development of the practice in the context of the rules of professional responsibility, as adopted in the various jurisdictions, and applicable general law: in short, the law governing lawyers." – National Association of Bond Lawyers from Chapter 8, Historical Evolution and Modern Function of Bond Counsel
Insurance Counsel Issues
"There are situations in which the school district does not have an unfettered right to choose its own legal counsel. This occurs when the district’s insurance company steps in to defend a lawsuit filed against the school district. School districts have insurance for a variety of occurrences, covering everything from bus accidents to playground injuries to employee civil rights actions. The school district may have several insurance policies. Each of these insurance policies will contain provisions regarding the handling of legal claims brought against the school district, and each may have a different system for defending those claims.Regardless of the type of policy involved, the first step is always the same. Whenever a school district receives notice of a lawsuit, or even a potential lawsuit, the district should notify its insurer (or insurers) to determine if insurance covers that claim. If it does, the insurance company is typically obligated to provide a legal defense for the claim. However, the failure to give timely notice to the insurance carrier of a claim can relieve the insurance company from liability. This is why it is so important to notify any insurance carrier immediately of a potential claim."
"Given the time and care that most school districts devote to hiring an attorney, it can be disconcerting at best and frightening at worst to learn that the district's legal future is entrusted to an unknown lawyer in a lawsuit covered by insurance. As this chapter has demonstrated, there are several safeguards for the school district to assure that its interests are protected. First, the district can select insurance policies that allow it to control the selection of counsel. Second, the ethical rules in every state demand that the insurance attorney protect the interests of the school district, and not simply the insurance company, in any litigation. Third, where a conflict arises, the school district may be entitled to have the insurance company provide it with separate counsel for all or a portion of the lawsuit. Finally, the district's own counsel can be brought in, either to monitor or participate in the defense, to provide the school district with an independent perspective in the litigation." – Nancy Fredman Krent and Gary R. Thune from Chapter 10, Issues for School Districts When Represented by Insurance Counsel
"The rules of professional conduct, known in most states by terms such as the Code of Professional Responsibility or the Rules of Professional Conduct, govern a lawyer's relationship with her clients."
"This chapter will examine a few of those rules which have the greatest impact on school district clients. The first is the special situation associated with the representation of a corporate entity such as a school board, the determination of who is the "client". Next, the chapter addresses the attorney-client privilege, the right of a client to keep the information he tells his attorney confidential. Finally, the chapter examines conflicts of interest, and the difficulties that can arise when one attorney represents more than one party in the same matter, even if both parties are part of the same entity, such as a superintendent and a board of education who are both named as defendants in a lawsuit." – Nancy Fredman Krent from Chapter 11, Legal Ethics: Some Important Aspects of the Attorney-Client Relationship
Evaluating School Attorneys
"In the case of in house counsel, evaluation is governed by internal rules, contracts, or employment agreements between the lawyer and the school district. However, in the case of outside counsel, there exist few objective measures for evaluation of effectiveness. It is recommended that governing boards, in addition to those standards, apply at least two additional measures to the evaluation of the effectiveness of their outside counsel. First, at a minimum, counsel must meet the standards listed in this chapter that would, upon failure to meet the standards, be grounds for termination of counsel. While the minimum standard approach does not adequately address the actual quality of representation, it should at least serve to alert the governing board to question the quality of legal services it is receiving."
"School boards must be vigilant to assure that they receive high quality legal services at a reasonable price. Regular communication with and evaluation of counsel concerning the quality of the service will usually be sufficient. Where it is not, school boards should inform themselves of their rights and obligations prior to terminating the services of legal counsel." – Margaret A. Chidester from Chapter 12, Evaluation and Termination of School District Counsel