Clear lines of communication with your school attorney will go a long way towards keeping the school district out of harm’s way. With a little bit of courtesy and a few ground rules, school official can enjoy a strong relationship with their attorney to the benefit of the district and its stakeholders.
Let’s examine the most common pitfalls that can inhibit – or sour – the relationship between the board and its counsel.
First, a mea culpa on behalf of the school attorney community: Often, legalese is our lingua franca, and many of us pepper our writing with complex words and Latin phrases. Oops. We’re doing it again, aren’t we?
Legal advice is not valuable if it is not understood. It’s important for clients to appreciate that lawyers are trained, in large part, to communicate with other lawyers and judges. Sometimes we need our clients to let us know when we need to rephrase things in order to be clear.
Tip: When you hear your attorney use jargon, ask for clarification. If the analysis seems unnecessarily complex, ask your attorney to break down the information into the key the things you need to know: What are the issues? What are the (known) facts? What are the board’s options? What is the likelihood of success for each option? Also, ask your attorneys if they can (whenever possible) keep opinion letters to two or three pages.
Lawyers have their pet peeves, too. One is lack of clarity regarding who is authorized to contact the attorney on behalf of the school board (the client is always the school board as whole, not the superintendent, board chair or other individual). This can result in:
- "Overlawyering” – multiple administrators contacting a law firm regarding the same issue or items that do not require a legal opinion.
- Legal costs that surprise the board.
- The attorney receiving information from individuals who know some but not all of the relevant facts.
Tip: Have the board adopt a written protocol that explains which trustees and/or administrators have the authority to contact legal counsel, and under which circumstances.
One thing that attorneys find particularly vexing is clients who have selective amnesia regarding the facts. Sometimes the client is hesitant to share information that may be embarrassing or reflect poorly on how the district approached the matter at issue. Remember: Your attorney is there to represent you, not judge you. The all-too common phenomenon of withholding information will limit the ability of your attorney to effectively represent your district. Your attorney needs to know all the relevant facts in order to do the best job possible in protecting the district’s interests.
Tip: While it is an attorney’s responsibility to ask questions to ferret out the relevant facts, trustees and administrators should not deliberately withhold relevant information.
Sometimes school board members or administrators say their school attorney does not “understand the district’s culture.” This can mean different things, but it frequently involves the unique dynamics of the school board as well as the personalities and priorities of individual school board members or administrators.
Tip: Invite your school attorney to lead retreats for the school board or administrators. Ask them to discuss topics such as the legal obligations of school board members, board-administrator relations, the state Open Meetings Law and the Freedom of Information Law. Such events give school officials the opportunity to expand their understanding of the law and give the attorney an opportunity to better understand the client district’s strengths, challenges, priorities and local concerns.
Whatever you do, don’t wait to contact the attorneys until after a significant legal decision has been made.
Common issues in district-attorney relations
|School officials can be frustrated when attorneys:||School attorneys can be frustrated when clients:|
|• Don’t respond to inquiries in a timely manner.||• Contact them after a legally significant decision (e.g., a termination) already has been made.|
|• Speak “legalese” rather than plain English and write letters that read like legal briefs.||• Do not provide all the significant facts when seeking advice.|
|• Fail to demonstrate understanding of the “culture” of the district.||• Lack a clear protocol regarding which trustees or administrators can contact the school attorney to ask questions or authorize work.|
|• Send bills that are surprisingly large.||• Engage in “lawyer shopping”– asking the same question of different attorneys within a firm or multiple firms in hopes of receiving a desired answer.|
|If this has been your reaction after receiving a legal bill, start asking for estimates.|
Employee terminations, crisis communications with the public, and even some policy changes can have significant financial and reputational impacts on your district. Virtually any decision your board makes can result in long-term (and sometimes, unintended) consequences; obtaining advice in advance will better position the board to reach an informed consensus on these difficult issues.
While consultation with an attorney cannot prevent a given individual from appealing to the commissioner of education or filing a lawsuit, the district will be in a much better position to defend itself if it was acting on legal advice. In fact, reliance upon advice of counsel can be a defense to some types of legal claims, including those that attempt to impose personal liability on school board members.
Even when school boards and their attorneys have a great relationship, odd situations can arise. What should be done in the following scenarios?
A school employee wants to share something “in confidence” with the school attorney. Every administrator and school board member should understand the law firm’s client is the board as a legal entity. Depending on the circumstances, the school attorney may have to advise individual employees that the attorney client privilege does not apply to the employee, and that the employee’s communication to counsel would need to be reported to the board if it represents a significant or potentially adverse matter.
Board members ask the school attorney for advice – but a third party (e.g. a union official or a parent) is present. Nothing prevents the attorney from answering the question. But if a third party is present, any advice you receive from your attorney probably has lost its privileged status. Avoid inviting non-employees into executive sessions in which you are directly seeking legal advice from the board’s attorney. Ditto for conference calls; be sure your attorney knows who is in the room.
A school official sends existing documents to the school attorney with the expectation that the material will become privileged and not subject to the Freedom of Information Law. The attorney-client privilege applies only to communications provided in the context of the attorney-client relationship. A communication is not privileged if it does not: (1) request legal advice, or (2) convey information reasonably related to a request for legal assistance.
“I thought we won this case – then we got your bill!” New trustees may be shocked by the celerity with which district legal costs can accrue once litigation has commenced. It’s a good idea for the board to request a budget estimate for attorney’s fees for a given case or project. It also may be prudent, at the inception of litigation, for the board to request an analysis of the relative costs of various possible outcomes, such as winning, losing or negotiating a settlement.
Like all relationships, your board’s relationship with your school attorney requires communication and effort to reach its full potential. But making this investment will pay dividends for the school district and all of its stakeholders.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by James P. Drohan and Stuart S. Waxman of Thomas, Drohan, Waxman, Petigrow & Mayle LLP