The value of an in-house attorney
In a world of increasing regulatory oversight of higher education, a trusted lawyer has become essential for today’s college leaders.
The Chronicle explored the growing purview of campus lawyers in this recent piece, and last week I spoke with one expert quoted in it, Lou Guard. He is the vice president and general counsel at Hobart and William Smith Colleges, in upstate New York, and a co-author of the forthcoming book All The Campus Lawyers, which tells the story of the past 15 years at the intersection of law and higher education.
The main reason there is so much more legal work on campuses today, he said, is all the regulation.
For the book, Guard and Joyce P. Jacobsen, a former president of Hobart and William Smith Colleges, examined higher-ed-related legislation and rulemaking from 1901 to 2021. What they found was a line that remained relatively flat for decades, then went up in spurts starting in the 1960s, with civil-rights legislation, then skyrocketed in the 2010s, with an increasing number of guidance documents from the U.S. Department of Education.
Guard himself divides his time these days between four buckets of campus legal work:
- Litigation: Managing pending and continuing lawsuits
- Counseling: Answering legal questions on campus, often related to employment
- Regulatory development: Keeping abreast of new laws and potential legal pitfalls, alerting relevant campus officials
- Transactional matters: Reviewing contracts, real-estate deals, and teach-out agreements; drafting MOUs
Involving a lawyer early in matters, Guard said, can help avoid costly legal issues later on.
In-house attorneys have become increasingly common, he said, a trend he tracks in the book, and Guard pushed back on the notion that general counsels exert too much influence on campus. Their perspective should be one of several flowing into campus leadership, he said. In considering deals with outside firms, a lawyer who understands the institution’s culture and priorities can be an important check in the process.
Four other insights from Guard on the work of campus lawyers:
Preventive law is where in-house counsel shines. A campus lawyer should be out and about on campus, and an active part of strategic decision-making, he said. Skilled general counsels meet with various stakeholders to ask what their worlds will look like five, 10, or 15 years in the future, and how legal guidance can support that vision. “Some of the best GCs that I’ve heard of that are doing this job are very much proactive with campus constituencies,” he said.
A lawyer serves as a campus steward. Compliance with laws and regulations is just the beginning of a counsel’s work, he said. Many see themselves as an “institutional guardian” and are thinking about the right moves based on values and strategic direction. That’s not something an outside firm can do as well, Guard said.
An in-house attorney could cut legal fees. Hiring a campus lawyer can make financial sense even for small institutions, depending on the amount of legal work they regularly outsource, he said. A staff attorney will do some of that work, know when something actually does not need legal review, and inspect agreements with outside firms to make sure the college doesn’t pay for services it doesn’t need.
A general counsel can be a cabinet-level position. Campus attorneys often become key figures on senior-management teams, and increasingly, institutions ask other departments to report to general counsels. Guard now oversees the human-resources department, a common arrangement. Other GCs serve as chiefs of staff or chief operating officers, oversee board relations, or hold the joint title of chief risk officer or chief policy officer, he said.