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HomeMy WebLinkAbout2003-06-16-LSRC-min (f /c Reminder School Legal Services Review Committee Meeting will be held on Monday, June 16, 2003 C at 7:30 p.m. at the Administration Building 1557 Massachusetts Avenue Lexington, MA 02420 (Please RSVP to Ginny Schwamb at 781-861-2550 if you are unable to attend.) Minutes Legal Services Review Committee June 16,2003 The meeting commenced at 7.00 p.m. Present were Norman Cohen, Tom Griffiths, Joanne Benton,Elame Sterzin, Marsha Baker, John Bartenstein, Howard Brick, Alice Oliff and Bill Dailey Supt. Benton distributed copies of the following handouts: • A survey of legal services arrangements and costs in the following school districts. Acton-Boxboro, Belmont, Brookline, Concord,Lincoln-Sudbury, Newton, Wellesley, Westwood, Winchester and Lexington. • Article entitled"What Boards and Superintendents Should Know About School Attorneys,"School Law in Review 2003 Presentations were then made by Susan Bottan, Director of Business and Finance, and Demse Rochlin, Director of Special Education, about their departments' use of legal services. Ms. Bottan explained that she has been with the Lexington Public Schools since October 1999 Previously, she was Executive Director of Child Care Resources, a statewide nonprofit. As Director of Busmess and Finance, she is responsible for the overall development and management of the school budget. She oversees capital budgets, employee accounts, spending accounts,payroll accounts, and supporting services, including transportation, food service and the print shop She oversees bids for expenditures in excess of$25,000, and solicits quotes for projects from$10-25,000 She is also in charge of building rentals. Ms. Bottan said that her primary dealings with the school's legal counsel relate to residency issues. Approximately fifteen residency questions come up each year, and they are covered by the school's retainer agreement with SC&M. Other issues on which she has dealt with counsel include transportation, new laws on child passenger safety, student attendance policies, and due process. These matters are covered by the retainer agreement as well. The School Committee recently created a Subcommittee on Policies, and SC&M has assisted in revising and refining school policies on child passenger safety, residency and out-of-district attendance, and student activity accounts. Ms. Bottan's primary contact at SC&M is Nancy Nevils, who specializes in residency and transportation questions. If Nancy does not have the answer, she will occasionally go - 1 - to Bob Fraser Her estimated time conferring with counsel is about forty hours per year, but more time than that is probably spent by SC&M researching answers to her questions. Ms. Bottan described the circumstances of one residency dispute, involvmg a divorced couple whose children were attending the Lexington Public Schools, that Nancy Nevils and Bob Fraser helped to resolve favorably Ms. Bottan has found that SC&M are particularly responsive. They immediately return phone calls, generally come up with an action plan on the same day, and overall have been"incredibly helpful." Nancy Nevils, in particular, has provided thoughtful advice, and Ms. Bottan trusts her judgment. There is nothing about SC&M's representation that she has found disappointing. Mr Griffiths inquired whether there had been any instances when SC&M provided advice that was on point legally, but ended up causing trouble with parents. Ms. Bottan said there had not. The types of letters that SC&M has drafted for her have had the right combination of firmness and conciliation, and have been well received. Ms. Bottan was then excused from the meeting, and Dr Rochlin made a presentation about the school system's use of legal services relating to special education. Dr Rochlin was hired in 2002, and has just completed her first year as Director of Special Education. Before coming to Lexington, she was Director of Pupil Services for the Freetown-Lakeville School District. Before that, she had served as High School Supervisor of Special Education for the Milton Public Schools, operated a tutoring and test preparation service, and worked part-time in the Braintree Public Schools as a teacher,team leader and administrator She has an undergraduate degree in elementary education and advanced degrees in special education and special education administration. Dr Rochlin has prior experience working with school counsel in special education matters. She understands that three firms are recognized in the state as leading special education attorneys for school systems: SC&M,Murphy,Hesse, Toomey and Lehane, and Sullivan&Nuttall. At the Milton Public Schools, she worked with Murphy, Hesse, and at Freetown-Lakeville she worked with school counsel Michael Long of Quincy Since coming to Lexington, she has worked primarily with Joan Stein of SC&M. When she came to Lexington, she faced a number of challenges. There had been a good deal of turnover among special education administrators, and none of the former administrators were still working in the system. There were a large number of rejected IEP's, a large number of settlement agreements and mediation agreements, and in general a high level of contentiousness. The emphasis had been on resolving disputes through legal channels. Dr Rochlm believes that no special education administrator can avoid legal process, but the need for it can be reduced. She has been trying to make a shift to understanding - 2 - state and federal due process requirements, avoiding conflict by carefully following the procedural rules, and trying to follow the spirit of the law in the TEAM process. Dr Rochlin has used Joan Stein to answer questions about the interpretation of the law, evaluate the impact of case law, and evaluate process-oriented questions. Her department is working to devise a policy manual for the district, and Ms. Stein has provided input on SPED procedures and policies and helped to make sure that the policy interpretations will be helpful to the district. In cases where families have hired counsel in special education matters, she has tried to have counsel attend TEAM meetings and other proceedings. There have been only a handful of cases in this category, but there may be more in the future. Dr Benton explained that when Denise Rochlin arrived in Lexington, she inherited a District Action Plan that had been negotiated with the state Department of Education that required the delivery of a massive amount of information about the Lexington Public Schools' special education program. This was not unusual. DOE does routine audits on a seven-year cycle, prepares a Program Quality Assurance Report, and requires districts to generate a corrective action plan. In 2000,the DOE had performed a"full program review" of Lexington, and generated a corrective action plan that required the school system to address thirty-nine issues. Within two months after her arrival, Dr Rochlin completed responses for the DOE that had been expected to take years. Lexington has now addressed twenty-three of the issues, and the remainder are partially completed. Dr Rochlin does not attribute the issues that were raised in the DOE's corrective action plan to any shortcomings on the part of school counsel. It is the responsibility of the special education administrator to understand procedural requirements and keep on top of any changes. Whenever she has contacted Joan Stein about any of the issues that have arisen, Ms. Stein has been"very responsive." The issues that Lexington has experienced have been dealt with by changes in leadership, and did not require any changes in legal representation. Joan Stein has been very helpful with the matters that have been brought to her attention. Mr Brick inquired whether SC&M provides unsolicited updates on legal developments. Dr Benton explained that such updates are provided from time to time, but they come to her as the superintendent, and are not sent directly to department heads. Mr Cohen inquired whether SC&M has vigorously advocated the school system's pomt of view in special education disputes, or sometimes been overly deferential to the parents' point of view Dr Rochlin responded that she wants an attorney that can see both sides of a question. Generally, Ms. Stein's appraisal of the strengths and weaknesses of a case have been accurate. The school has sometimes had a less than ideal legal position because of prior procedural deficiencies. Her goal is improve procedures and communications to the point that there will be less need for attorneys' involvement in school-family conflicts. - 3 - Ms. Baker concurred that there had been a high level of contentiousness over special education matters in the past, and inquired whether Dr Rochlin felt the situation had improved. Dr. Rochlin responded that things are not yet where she would like them to be, but there has been change and improvement. More people now know and understand the process, school representatives are trying to be less defensive, and there is less need for parents to be contentious from the start. There has been a philosophical shift to try to mediate more cases through the DOE, and she believes that settlements can be a good tool to protect the interests of the district if it is the best available alternative. In response to a question by Ms. Oliff, Dr Rochlin stated that most of the services provided by SC&M in the special education field are case-specific, not global. As the SPED Administrator, it is her responsibility to stay current on the law, so there is less need for global advice. There was a brief discussion of the special education budget. Dr Rochlin explained that the budget is complex as it involves a number of components, including "building- based SPED programs, out-of-district tuition, entitlement grants, and certain other optional grants. It is difficult to say what portion of the overall school budget is directed to special education. Recently,the budget had to be adjusted significantly because a number of out-of-district placements had not been budgeted by previous administrators, but they have since stayed within the budget. About 25% of SC&M's retainer fee is attributable to special education advice, subject to additional fees if an outside counsel is involved. Mr Dailey asked Dr Rochlin how she would rate the SC&M attorneys. Dr Rochlin said that Joan Stein has been highly responsive. She has provided information in a timely manner She has been good at connecting the dots and understanding perspectives. She is a philosophical match, and has a good understanding of the districts' needs and point of view It is premature to make a complete evaluation because, so far, all of the cases they have discussed have been settled and none have gone to hearing. Her advice has generally been right on target, and she has always provided an honest appraisal of the merits of a case. There may be some instances where issues exist because Joan's advice to earlier administrators was not taken. Mr Dailey asked Dr Rochlin whether, if she could choose any firm this September, she would choose SC&M. Dr Rochlin said that she would, but that she has not had enough time or experience with the relationship to make statement defmitive. Dr Rochlin provided a short list of other special education counsel whose advice she would trust. There are some good single practitioners, but generally she prefers a larger firm where the lawyers can confer with others who have specialized expertise. At this point, Dr Rochlin was excused from the meting. Ms. Baker commented that from the point of view of the Parents' Advisory Counsel(PAC),there is much support for what the new director is doing and her overall plan. - 4- There was a brief discussion of Dr Benton's survey of the rates paid to school counsel by other school districts. Dr Benton pointed out that it is hard to get complete and accurate information, and some of the costs listed on the survey are estimates. Finally, the committee discussed next steps. It was agreed that at the next meeting, to be held on June 30, the committee would invite the three former chairs of the School Committee, Mr Burson, Ms. DiGiammarino and Ms. Peitz,to comment on their experiences with school counsel. It was also agreed that representatives of SC&M should be invited to address the committee at a later date. At the suggestion of Ms. Oliff,the committee decided that there should be one additional meeting before SC&M is invited to go over what has been learned to date and what questions should be posed to SC&M. - 5 - 7, ece ! ivt,,, IL-- ) - 1-et-1- - „ •,,'47 `t, ,A1 447 4.;,. 0 ,1 k0•,; <, .,..v •f::3...,k: r../. „„) 't•-• 4- I'': ;';' ',.',"-, ...„ c);I ..;F r.,.;) • :,s.,4. t*,;'Ak'i-r X' M.If, i.. '• '4,<, ;('',::' "- ;i;''. 0 .:',..' i'6: .112 '‘'‘.,., .A.) 4:. ,..• ..„ 11,,:". "4, "4. ---'*.; (9 "4 ;'(1 .1= :1-: '-',* .4= :4,-. :4,, to , ,,-, to ,,,,' ..,,•;.f.4.. 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Y , 4 4:1 3'`,< „„k ''',- ',1";' ,,,,, t-t, W:. 6V 'i...,:gy„.. ___ - ,..., 4+; .-:_,... .. ,—....__ _______,,,,,,r 0- ,...v.:, — P'' ..,,,, t'-,,' rt , 4:f 1., ';';'' C t,,,'7;< * 'It ..t& ... .':• ‘4.1 ,wliial 6.. ,11;:. :9•,9 ::',.'t .E -,„-:- .,,, , IP, ,7;.•• -0 r,,,,,-w4i`t '''.-''''. 1:11!;11: 0) ><, C 4. ;:•••,F co -,v.:t: 4- 4, ,..., ..:,,,$,,,.., :-.4,-- c :,,,t- -2:, -44.,• L. 40., C A7t.' 0 ',,'„7- ,,,,Vb 4C.A,.. fz*- -I-. -. 0 :4, '4 V. .= ti :1,',;* i,,,:', 3 t*;• 6' ‘5,..t :3 ::,-.,,,, z No-, 3 _i ..., VCA•( ,..,2,-., co Q.4.; m .,;,A4 •06/16/2003 12 24 FAX 6175568989 STONEMAN CHANDLER MILLER t ®002/011 () OliI> School Law In Review 2003 — l7.tbGL1 135 What Boards and Superintendents Should Know • About School Attorneys Martin Semple Semple, Miller& Mooney, P.C. Denver, Colorado The legal landscape that boards of education and superintendents of schools have to deal with today has changed dramatically from a generation ago. In dealing with its school attorney, the board and the superintendent have to know and understand not just some of the general rules and standards that are applicable to all attorneys,but they must recognize that school law is now a highly specialized area of practice. SCHOOL LAW AS A SPECIALTY Since the early 1970s,a plethora of federal statutes and regulations' have directly impacted school districts,their employees and students,including: Title IX,'Section 504 of the Rehabilita- tion Act of 1973,' Individuals with Disabilities Education Act(IDEA),'Age Discrimination in Employment Act (ADEA),s Family Educational Rights and Privacy Act (FERPA)`,Americans with Disabilities Act (ADA)',Bilingual Education°,Family and Medical Leave Act(FMLA),9 Department of Transportation Drug and Alcohol Testing,10 Equal Access Act," and the No Child Left Behind Act (NCLB Act)." Furthermore,since the 1970's state legislatures have passed laws in the following major areas:teacher tenure/dismissal,school finance,student testing,charter schools,vouchers/ choice,home schooling,collective bargaining/labor relations,and safe schools. Finally,the United States Supreme Court has heard many school law cases since 1970. The Desk Reference of 1 Michael I,Levin ed,2002 UNrr o STATES SCHOOL Laws Aso Rum. 2. 20 U.S.C.§1681 3, 29 U.S.C.§794. 4 20 U.S.C.§1400. 5. 42 U.S.C.§6101 6. 20 U.S.C.§12329. 7 42 U.S.C.§12101 8. 20 U.S.C.§7401 9 29 U.S.C.42601 10. 49 C.F.R.§5 40 and 382. 11 20 U.S.C.§4071 12, 20 U.S.C.§6301 et seq. 0E/16/2003 12 24 FAX 6175568989 STONEMAN CHANDLER MILLER Vh 003/011 136 What Boards and Superintendents Should Know About school Attarnays Significant U.S.Supreme Court Decisions Affecting Public Schools"currently lists 600 cases since 1970 alone. More than 60 Supreme Court cases deal specifically with issues related to school districts ranging from students'rights of free expression through wearing black arm bands protesting the Vietnam war,prayer at graduation and at football games,to the use of schools by churches. Many new Supreme Court cases also interpret the new federal statutes. The explosion in litigation involving school districts is best illustrated by West Publishing Company's Educational Law Reporter,which was first published in 1982, As of December 2002,it contains 168 volumes,each volume containing approximately 130 new case decisions,averaging more than 1,000 published opinions each year. These developments are all in addition to the representation of the school district as a corporate entity involving employment law,contracts, property transfer,liability and insurance issues. Far from being an interesting sideline for the general practice or corporate attorney,school law has become a highly specialized area of law with a whole series of subspecialties. Every board of education and superintendent should understand some of the significant Rules of Professional Conduct that govern attorneys. THE BOARD IS THE CLIENT Model Rule 1 13 is the most critical ethical guideline,both for the attorney and the corporate client to understand. It provides that"(a)The lawyer employed or retained by an organization represents the organization through its duly authorized constituents.' In practical terms,this means that the school district and its board of directors,as a board of directors,not as individuals,are the clients. While the school attorney will work in most instances and on a day-to- day basis with the superintendent,the superintendent and the board should clearly recognize that the attorney's responsibility is to the school board and not to the superintendent or the principal or any individual board member. Who should have access to the school attorney? Should the superintendent be the • doorkeeper,or can any administrator or employee in the district simply contact the attorney for advice? Clearly,when the attorney is initially retained the issue of access needs to be clearly defined and those who are authorized to deal with the school attorney need to understand that the attorney does not represent any individual,the superintendent,the administrator,the director of special education,or an individual board member Rather,the attomey's loyalty and responsibility is to the school board, THE ATTORNEY CLIENT PRIVILEGE BELONGS TO THE BOARD Most people recognize that in dealing with their attorney,what they say is privileged,and information communicated cannot be divulged to any third party without the permission of the client. The scope and extent of the privilege needs to be clearly understood;it is not as all embracing as many people believe. The privilege protects disclosure of communications from a client to the client's attorney or the attorney's agent,which relate to the lawyer's rendering of legal advice and which are made with the expectation of confidentiality not in furtherance of a crime, "Only the communication itself is privileged;the underlying facts,as well as factual circumstances surrounding the relationship are discoverable.'" 13. NSBA Council of School Attorneys,2000. 14. In Re Campbell,66 Express,Inc.,84 Bankr,632,634(Bank.W.D. Mo.1988), • 06/16/2003 12 24 FAX 6175568989 STONEMAN CHANDLER MILLER .•� Q11 004/011 School Law in Review 2003 137 Information provided to the attorney from any employee of the district could potentially be • privileged. In Upjohn v.United Stares," the U.S.Supreme Court held that the attorney client privilege protects communications from employees to a corporation's attorney where the employee communicated with the attorney acting in a capacity as the corporate attorney,the employee knew that the purpose of the communication was for the corporation to obtain legal advice,the information was not available from upper management,and it concerned matters "within the scope of the employee's duties,"and the corporation treated the information confidentially It should be noted that the client is the board,and since the privilege belongs to the organization and not the individual,only the corporate action of the school board that can waive the privilege. In other words,any individual board member cannot waive the privilege,nor can a superintendent or individual administrator, The rules governing a lawyer's obligation to maintain confidentiality of client information are much broader than the attorney-client privilege. A lawyer is required"to preserve the confidences and secrets of a client"(Canon 4)(Emphasis added). Rule 4-101(A)states that a "confidence"refers to information protected by the attorney client privilege under the applicable law, "Secret"refers to other information gained in the professional relationship that the client requested be held inviolate or that if disclosed would embarrass or likely be detrimental to the client. Although the school attorney and individual board members are not regarded as having an attorney client relationship,in reality,they may interact as if they do. Some authors have labeled the individual board members and superintendents who work closely with the school attorney as "quasi-clients,"i6 because individuals may very well treat their school attorney as their own attorney and the attorney may treat the board members as clients in their representation of the • school district. Board members and administrators must clearly understand that the school attorney represents the entity of the organization. They must also understand that while any attorney takes seriously the requirement to keep the confidences and secrets of the individuals making up the organization,loyalty is owed primarily to the whole,the corporate entity,not to its parts." CONFLICTS Rule 1 13(e) states,"A lawyer representing an organization may also represent any of its directors,officers,employees,members,shareholders or other constituents subject to the provisions of Rule 1.7 (on conflict of interest)" Any time an attorney represents not just the school district but also its individual board members,the superintendent,the principal or the teachers in the school,there is always a potential for conflict of interest. An attorney has a responsibility to exercise independent judgment on behalf of his or her client. Rule 1.7 states: (1) 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: 15 449 U.S.383,394-95(1981). 16. HAZARD,ETHICS AND THE PRACTICE of LAW,46-55(1978). 17 The only time the secrets or confidences of the quasi-client might have to be revealed to the primary client is when they clearly involve wrongdoing that is detrimental to the interests of the district,and the attorney • cannot dissuade the individual from the action or persuade him or her to reveal it to the whole board.Model Rule 1 13(b). 06/16/2003 12 24 FAX 6175568989 STONEMAN CHANDLER MILLER 0005/011 138 What Boards and Superintendents Should Know About School Attorneys (2) The lawyer reasonably believes the representation will not be adversely affected;and (3) The client consents after consultation. • Obviously,the practical problems of conflict are avoided if the school attorney does not represent board members,administrators or employees,but this may be easier said than done when dealing with a small town or rural community where the number of lawyers is quite limited. The conflicts are more likely to arise when the school district and individual administrators or employees are all named as defendants in a lawsuit. Clearly,the school attorney needs to recognize potential conflicts and explain them to the client. More importantly,the client needs to understand that if there are any real conflicts or likely conflicts between the positions that need to be taken to defend the school district versus the positions that need to be taken to defend the superintendent,the principal or the individual teacher,each may need separate counsel. Ethical Consideration 5-19 states,"A lawyer may represent several clients whose interests are not actually or potentially differing. Nevertheless,you should explain any circumstances that might cause a client to question his undivided loyalty" Conflict issues can also arise when the school district is represented through the attorney hired by its insurance company Regardless of who actually hires or pays for the attorney,the attorney owes his or her primary duty of loyalty to the client he or she is representing,namely the school district, The interest of the insurance company in keeping down costs or pushing for a settlement may be in conflict with the interest of the school district. The district needs to fully understand that it has every right to expect full and complete loyalty from the attorney representing it. However,in the final analysis,the insurance company through its insurance contract may have the right to dictate settlement terms or some of the procedures to be followed. Ethical Consideration 5-1 provides: • The professional judgment of the lawyer should be exercised,within the bounds of the law,solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interest,the interests of other clients,nor the desires of third persons should be permitted to dilute his loyalty to his client. This particular provision underscores what a school district is entitled to, Regardless of whether the attorney is the district's own legal counsel,separate counsel chosen for a particular issue,or counsel retained by the insurance company,the district is entitled to the undivided loyalty of the attorney representing the district. INDEPENDENT JUDGMENT Rule 2.1 states that a lawyer must exercise independent professional judgment on behalf of his or her true client,which is the school board,and render candid advice. The attorney should be alert to when there is a conflict of interest, The attorney should also recommend that separate counsel may be necessary when the attorney is not competent in dealing with an issue. Ethical Consideration 5-11 states,"A lawyer should not permit his personal interest to influence his advice relative to a suggestion by his clients that additional counsel be employed. he should be alert to the desirability of recommending additional counsel when,in his judgment, proper representation of his client requires it." • 06/16/2003 12 25 FAX 6175568989 STONEMAN CHANDLER MILLER 006/011 School Low In Review 2003 139 One common area where separate counsel may not be just advisable but may be required S is whenever the school attorney acts as a prosecutor,whether in a disciplinary action or termination of an employee or in the expulsion of a student. if the regular school attorney has prosecuted the case before a hearing officer and the matter then goes to the school board for review and final action,clearly the attorney cannot advise the board in its judicial capacity. In Weissman v Board of Education of Jefferson County," the school attorney prosecuted a teacher tenure dismissal case on behalf of the district before the impartial hearing panel. Then,sitting with the board of education in its executive session,he reviewed the findings of fact and the recommendations of the panel and participated in the decision to terminate the teacher on the grounds of immorality. The teacher challenged the board's decision,inter alia,on the due process grounds because the school board's attorney had acted in these arguably conflicting roles. The Colorado Supreme Court concluded: Courts which have considered the problem have suggested that a school board's attorney,who has taken part in the adversary proceedings in the role of a prosecutor,should not be present during the board's deliberations(cites omitted). We agree. In the future,counsel who has played such a role in a proceeding should take no part in the final deliberations of the board,in order to avoid any appearance of impropriety or unfairness." The Supreme Court did not overturn the decision of the board of education. In light of the evidence,the court felt that,while the attorney had acted imprudently, he had not influenced the board's decision. IIIII MULTIPLE ROLES OF THE ATTORNEY An attorney is not just a legal advisor,but also an advocate,mediator,problem solver and counselor(conslglieri). Ethical Consideration 11-4 notes the distinction between the role of advocate and advisor: In asserting a position on behalf of his client,an advocate for the most part deals with past conduct and must take the facts as he finds them. By contrast,a lawyer serving as advisor primarily assists his client in determining the course of future conduct in relationships. While serving as advocate,a lawyer should resolve doubts as to the bounds of the law in favor of his client. In serving the client as advisor,a lawyer in appropriate circumstances should give his professional opinion as to what the ultimate decision of the court would likely be as to applicable law. A client has a right to expect that the attorney is not just providing a cold analysis of the law,but that he or she brings"the fullness of his or her experience as well as his or her objective viewpoint"to bear upon the decision making process. Ethical Consideration 7-8. The Minnesota Supreme Court has noted: 18. 547 P.2d 1267(Cola.1976). S 19. Id.at 1276. See also Lockhart v.Bd.of Educ,668 P.2d 959 (Colo.App.1983),aff'd in part,rev'd in part on other grounds,687 P.2d 1306(Cola.1984). 06/16/2003 12 25 FAX 6175568989 STONEMAN CHANDLER MILLER a 007/011 140 What Boards and Superintendents Should Know About School Attorneys Many courses of action which are legal are unwise. The lawyer who in vouching for the legality does not at the same time point out their lack of • wisdom,if it be known to him,is an incompetent advisor In so counseling,he does not by so much cease to be a legal counselor His knowledge of the law is not the only thing wanted. Frequently,more important is his knowledge gained from experience,of how the law works in application to the affairs of men. M w Then there is often a choice,already mentioned,to be made between two or more routes of action,all of which may be legal,but one altogether more desirable for some reason only an experienced lawyer may know 2° A board and superintendent have a right to expect candid advice as to the practical implications as well as the legal implications of the course of action they are considering or the issue that they are confronting.That advice should be based on the lawyer's experience concerning what can happen,what the risks are,the political implication,and/or the consequences when some other district took the same kind of action. At the same time,the attorney has to recognize the fine line between being a legal advisor and a developer of policy. While the attorney has to bring his or her experience to bear on the legal problem,in the final analysis,after the advice is given,it is the client,namely the school board,that is the decision maker The board's decision should be implemented regardless of the lawyer's personal point of view, THE RIGHTTO EXPECT PROMPT ATTENTION AND BE FULLY INFORMED • Rule 1.3 requires diligence and promptness in representing clients, Rule 1.4(b)states that a "lawyer should explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation."The board or superintendent and the school attorney must have a clear understanding as to just how well informed the school district wishes to be regarding given issues,particularly litigation. In the interest of keeping costs and fees down,the district may not want a tremendous amount of written communication. At the same time,the lawyer has an obligation to ensure the client is sufficiently informed in order to make informed and reasonable judgments on critical aspects of the case, PREVENTIVE LAW The National School Boards Association in its Strategic Goals fosters and encourages the use of preventive law in all school districts and the provision of information and materials to boards and their legal counsel that will aid in avoiding unnecessary litigation.21 This is both a practical and a philosophical position. Preventive school law is really attempting to anticipate problems and develop solutions in advance of potential litigation. The following advice from former Council of School Attorneys(COSA)Chairman David Rubin summarizes the critical importance of"preventive lawyering:" 20. Lindquist v.Abben,265 N.W.54,56-57(Minn,1936). 21 Four Strategic Goals Guide N5Br4's Work NSHA SCHOOL BOARD News,Dec.24,2002 at 2,6. • 06/16/2003 12 25 FAX 6175568989 STONEMAN CHANDLER MILLER a 008/011 School Low in Review 2003 141 To some school boards,routine legal advice is an unaffordable luxury, To others,it is an unwanted nuisance. Whatever the school board's view,the fact is that"preventive lawyering"is by far the most economical approach in the long run. This is especially true in the area of policy making. Since the school board and the superintendent control their own agenda, there should rarely be a need to make seat-of-the-pants decisions when developing policy on issues with serious legal Implications. The time to seek legal advice is before a controversial proposal reaches the action stage, Once reduced to paper or distributed to a public agenda,proposed actions develop a life of their own. Input from counsel before this stage will help assure policies and other board decisions are not weighed down with legal problems that will only serve later as grist for the litigation mill. Legal advice is important,not only when the board is considering adoption of new policies,but also in helping the board to interpret and apply policies consistently and in reviewing and recommending changes to existing policies.=s Preventive school law requires an open working relationship between the board and the superintendent and its school attorney to make sure that the attorney is fully informed of all critical developments within the school district,and what the board or superintendent wish to achieve. Likewise,the attorney must keep the board and superintendent fully informed of the latest critical developments in school law,and he or she must be attuned to the particular needs of the school district. THE FINANCIAL RELATIONSHIP WITH THE ATTORNEY The financial arrangement with an outside attorney can be: (a)an hourly rate; (b)a general retainer to cover all of the activities on behalf of the school district; (c)a combination of a retainer to cover either a specific number of hours or specific activities with the remainder to be billed on an hourly basis; or(d)a contingent fee in some circumstances. The critical rule that governs all financial relationships for an attorney is that the fee must be reasonable, (Rule 1.5(a)), In-house counsel generally will be paid on a salary basis, The bigger issue that arises is when and whether the in-house counsel can engage in the private practice of law,namely having clients other than the school district. If the in-house counsel can continue a private practice,he or she should consider whether he or she can perform any legal representation on behalf of employees of the district,anyone doing business with the district,or members of the school board. THE CLIENT HAS THE RIGHTTO HIRE AND FIRE AN ATTORNEY WHEN IT CHOOSES As a practical and legal matter,attorneys are truly retained"at will." When a board no longer wants to deal with a particular attorney,it has every right to terminate the relationship, While an attorney is entitled to be paid for his or her services rendered to date,the attorney cannot refuse to return a client's files. There may be some procedural limitations in terms of the attorney withdrawing from representation of the school district in litigation when the district has decided I it no longer wishes to use the attorney. Again,withdrawal can generally be achieved very • 22. David Rubin,School Board Members'Liabiliry Under Section 1983(NSBA COSA,1992). 06/16/2003 12 25 FAX 6175568989 STONEMAN CHANDLER MILLER a 009/011 142 What Boards and Superintendents Should Know About School Attorneys promptly The Colorado Supreme Court emphasized the absolute right of a client to terminate the attorney client relationship: • In order to assure no compulsion to retain an attorney where trust between attorney and client has been broken,and to further guarantee that a client may be confident with such representation,a client must,and does,have the right to discharge an attorney at any time and for whatever reason. See Thompson v.McCormick,138 Colo.434,440,335 P.2d 265,269 (Colo.1959) An attorney may not rely upon an indefinite continuation of employment but instead,enters an attorney client relationship with knowledge that the relationship may be terminated at any time and for any reason. The unique relationship between attorney and client prevents the agreement between them from being considered as an ordinary contract because doing so would ignore the special fiduciary relationship. AFLAC, 444 S.E.2d at 316(citing Fox&Associares Co.,L,P.A.v Purdon,44 Ohio St3d 69,541 N.E.2d 448,450(1989)). The right to terminate the attorney client relationship"Is a term of the contract implied by public policy because of the peculiar relationship between attorney and client." AFLAC,444 S,E,2d at 316(citing Martin v. Camp,219 N.Y 170, 114 N.E.46,48(1916)). A client's discharge of chosen counsel is not a breach of contract but merely an exercise of this inherent right. AFLAC,444 S.E.2d at 316(citing Dorsey v,Edge,75 Ga.App.388,43 S.E.2d 425,428 (1947)).' • The bottom line is that a board can always sever its relationship with its attorney so that it is quite clear that the attorney is no longer representing the board. All of the attorney client privilege responsibilities still remain in place, In other words,even when the relationship is severed,the attorney is still bound by the attorney client privilege,with very limited exceptions, unless it is waived by the board. Martin Semple is a partner in the Denver,CO law firm of Semple,Miller&Mooney,RC,that specializes in representing school districts and other public and private employers. Fie completed his undergraduate education at St.Patrick's College,Ireland and holds law degrees from the University of Denver College of Law and Catholic University of America. Mr.Semple is past chairman of the Colorado Council of School Attorneys and the NSBA Council of School Attorneys, 23. Olson and Brown v,City of Englewood,889 P.2d 673,676(Colo.1995). • 06/16/2003 12 25 FAX 6175568989 STONEMAN CHANDLER MILLER f7j 010/011 School Law in Review 1003 143 LEGAL SERVICES QUESTIONNAIRE* • The following questions seek information about the basic structure of legal services in your school district.The answers will help define your individual needs with respect to legal services. HOW ARE LEGAL SERVICES CURRENTLY PROVIDED TO YOUR SCHOOL DISTRICT? Are you represented by a government official or officer,such as a State's Attorney, Corporation Counsel,or County Attorney? Does your school district have a retainer agreement with a local law firm? Does your school board have a full-time or part-time staff attorney? Does the school district have a full-time staff attorney who reports to the Superintendent of Schools or other school official? Do you retain a private attorney only in individual cases where a lawyer is needed (such as defending a lawsuit)? WHO IS RESPONSIBLE FOR ARRANGING FOR LEGAL SERVICES? Is the responsibility for obtaining legal advice delegated to the Superintendent? Does the Board retain authority to deal with legal counsel? Is the responsibility defined in state law or Board policy? HOW DO YOU DEFINE SPECIFIC LEGAL ISSUES OR PROBLEMS? Does the Board meet to define the problem? Does the Superintendent formulate issues and make recommendations to the Board for seeking legal advice? Does the Superintendent or Board president confer informally with the Board's (school district's)attorney? Does your school district attorney attend board meetings and point out legal issues and potential legal problems? Does your school district attorney meet regularly with the Superintendent and the administrative leadership to address legal issues and identify potential problems? WHAT ROLE DOES YOUR SCHOOL ATTORNEY HAVE IN POLICY MAKING? Does the school district attorney review all proposed Board policies? Does the school district attorney review only certain proposed policies when the Board and Superintendent define related legal issues? Does the school attorney review policies only after they are adopted? HOW DO YOU PAY FOR LEGAL SERVICES? Do you have a full-time staff attorney(or attorneys)on salary? Do you have a long-term retainer agreement with a local lawyer or law firm? Do you have a"legal services"or"retainer"line item(other than staff salaries and benefits)in your annual budget? • Do you pay for all legal services"by the hour"? Do you pay different rates for different types of legal services? 06/16/2003 12 25 FAX 6175568989 STONEMAN CHANDLER MILLER 2011/011 144 What'Boards and Superintendents Should Know About School Attorneys HOW MUCH DO YOU PAY FOR LEGAL SERVICES? What is the total amount paid annually to staff attorneys(house counsel)? • How much do you pay outside counsel annually? How much is the basic retainer?What does the retainer fee cover? How much has your school district spent on legal services over the past three(3)years?The past five(5)years? HOW ARE LEGAL OPINIONS RENDERED TO YOUR SCHOOL DISTRICT? Do you receive most of your legal advice by telephone or orally in meetings of the Board or school officials? Does your school attorney provide written legal opinions on all legal issues? Do you receive a written legal opinion when you specifically request it7 Does it cost more to obtain the advice in writing? Can any Board member request a legal opinion at any time or is some form of Board consent needed prior to individual members seeking legal advice? HOW IS YOUR SCHOOL DISTRICT LAWYER SELECTED? Does the Board vote annually(or periodically)to retain a specific lawyer or law firm? Does the Board delegate obtaining legal services to the Superintendent? Does your school district request and receive bids for legal services in the same manner as it contracts for other outside services? Does the Board or Superintendent hire staff counsel through advertisement and application? Does the Board approve the appointment? • IN WHICH OF THE FOLLOWING SITUATIONS DOES YOUR SCHOOL DISTRICT USEA LAWYER? When a lawsuit is filed against the school district? When the school district is taking an adverse personnel action?Before the action is taken or after the notice is given? When the school is negotiating a contract with an employee bargaining unit? When the school district is negotiating for grant funds or is signing an agreement or assurances in connection with grant funds? When your school district is challenged on the placement of a student with disabilities? When your school district is engaged in contract proceedings(bids,reviews,negotiations) for equipment,supplies,services? When the Superintendent or Board becomes involved in a student disciplinary proceeding, such as a longterm suspension or expulsion? Regular review of existing Board policies? Pre-adoption review of proposed new policies or amendments to existing policies? Other matters on which you consult legal counsel.(Please list) "This Legal Services Questionnaire is found in Selecting and Working with a School Attorney- A Guide for School Boards,NSBA Council of School Attorneys,1997 That publication has a detailed analysis of the role of the school attorney. 0