It is highly unusual for a college trustee to call — publicly — for the institution’s general counsel to resign. Yet this recently occurred (via tweet, of all things) at Michigan State University, as the controversy surrounding Lawrence D. Nassar engulfed the administration. The trustee, Brian Mosallam, also demanded an “independent review” of how Robert A. Noto, the general counsel, had handled the Nassar investigation internally. This may be unusual now, but it is just the beginning of what may well become more common — internal battles involving university lawyers.
Nassar, a team doctor who held a faculty position at the university, pleaded guilty to seven counts of criminal sexual misconduct and was sentenced to 40 years in prison. The university’s president and its athletic director resigned as critics faulted Michigan State administrators for their mishandling of the charges and the resulting scandal.
Noto had brought in a well-respected former federal prosecutor, Patrick Fitzgerald, to conduct an internal investigation; he concluded that no one else at the university knew that Nassar had engaged in criminal behavior. But — and this is key — both Noto and Fitzgerald were working on behalf of the university, not the victims. This created a potential for misunderstanding at the very least and, beyond that, a troubling, even corrosive, conflict of interest.
Within a year the university lost two chief executives — Lou Anna K. Simon, sank by the scathing, heart-rending testimony of the sports doctor’s scores of victims, and John M. Engler, whose interim presidency ended amid a backlash over his bare-knuckled tactics.
The situation illustrates how such conflicts of interest can arise. Nassar’s crimes caused a firestorm, and his victims have been vocal in their quest to hold institutions, including Michigan State, accountable. Given that, the internal review performed by Fitzgerald was not necessarily unusual; that kind of investigation in anticipation of legal proceedings is very common — and is often commissioned by the general counsel.
But this was no ordinary inquiry, nor was this a typical matter: Nassar’s sexually abusive conduct was extraordinary in scope, duration, and impact. When concerns about cover-ups or inaction in the face of manifest danger arise, a college and its counsel may swiftly find themselves in conflict-of-interest quicksand.
Colleges are entitled to seek the advice of lawyers confidentially, and self-interestedly. But what exactly is institutional self-interest when it comes time to assign blame? Internal reviews and investigations can be catalysts to expose divisions in institutional interests: A president may disagree with a board over the best course to take; boards may divide into camps, and so on. A general counsel may land in the unenviable position of trying to represent a house deeply divided against itself.
It is no surprise, then, that questions like who commissioned a report, and for what purposes, can accelerate to a point of potentially irresolvable conflict. It may become impossible for one lawyer to work collaboratively with everyone — particularly if senior administrators are exposed to criminal investigation or civil liability. One day a senior administrator is working closely with the college’s general counsel, the next day she may be the opposing counsel. This can cause a conflict of interest, forcing a general counsel to withdraw entirely from representing the institution.
When concerns about cover-ups or inaction arise, a college and its counsel may find themselves in conflict-of-interest quicksand.
Conflicts can arise in many other ways; a lawyer’s duty of undivided loyalty to a university may be easy to articulate but difficult to put into practice. The general counsel may be called on to play referee among senior leaders, or even to take sides. It is also common for institutional subordinates like student-affairs administrators to become dependent on the general counsel for leadership, but the proffered legal advice can slowly transform into direct management.
Also, colleges themselves may be stuck in the past, clinging to the days of alma mater and a one-for-all, all-for-one spirit. However, such quaint self-images are not tenable in todays’ climate. The law has turned a harsh eye on academe, shattering illusions about unity of purpose and the unquestioned good intentions of leaders. Today’s lawsuits, criminal investigations, and stern public narratives make it less and less likely that one lawyer can represent everyone — or really anyone — without being crystal clear about whom that counsel represents and for what purposes. The concept of a “general counsel” is itself under stress amid growing legal entanglements and concerns about conflicts of interest, which may force universities’ chief counselors to withdraw or clarify their role in certain matters.
The landscape for legal representation can be managed, but only through a reformation in thinking and approach. We should expect to see the world of legal ethics collide with public and colleges’ understandings of what lawyers can and should do — and for whom. Many ethical rules for lawyers’ conduct in representing colleges need to be substantially updated and clarified. Lawyers will need to be scrupulous in identifying conflicts, even anticipating them, and helping colleges understand how to get the legal services they deserve.
Our system of laws is built on the idea of taking sides; colleges were built on the foundations of a common educational purpose. But those foundations have cracked. Modern colleges will not always experience unity of purpose or be managed by administrators with common, undivided interests, and lawyers who are lured by their institutional clients’ common interests or purity of motive may find themselves out of work.
Managing conflicts is not just a burden on the lawyers, however. Colleges must also not fall into the trap of deflecting responsibility by simply relying on their general counsels; it is too easy to just blame the lawyers. In the future, institutional counsel will help colleges navigate the inevitable conflicts that lie ahead as they increasingly become businesses with complex dynamics and diverse and competing interests.
The term “general counsel” itself may begin to disappear if the current legal climate in higher education prevails. Colleges and their lawyers will need to evolve together to avoid and manage conflicts. Otherwise, the legal situation at Michigan State will be remembered not just as a cautionary tale, but as an early revelation of a much larger problem.
Peter F. Lake is a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law.
