HomeMy WebLinkAbout2003-06-16-LSRC-minReminder
School Legal Services
Review Committee Meeting
will be held on
Monday.. June 16, 2003
U
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, Elaine 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
Denise 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 Business 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, involving 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 cl}annels.
Dr. Rochlin 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
point 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. Rachlin 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. Rocklin 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 definitive. 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.
IKIIE
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. Peltz, 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-
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•06,/16/2003 12:24 FAX 6175568989 STONEMAN CHANDLER MILLER �1 Qi002 /011
t``�•? �� "`.,�°�, 135
s Law in fleview 2003
What Boards and Superintendents Should Know
w 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),' Family Educational Rights and Privacy Act (FERPAP, Americans with
Disabilities Act (ADA)', Bilingual Education", Family and Medical Leave Act (FMLA),' Department
40 of Transportation Drug and Alcohol Testing, 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
Michael I. Levin ed, 2002 UNUD SIAYES SCHOOL LAWS Anti Runs.
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. §2601.
10.
49 C.F.R. §4 40 and 382.
11.
20 U.S.C. § 4071.
12,
20 U.S.C. § 6301 er seq.
06/16/2003 12 24 FAX 6175568989 STONEMAN CHANDLER MILLER 0003/011
136 What Boards and Superintendents Should Know About School Attornityx
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 ISTHE 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 attorney'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
chentto 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.1908),
06/16/2003 12:24 FAX 6175568989 STONEMAN CHANDLER MILLER 0004/011
137
school Law in Review 2003
Information provided to the attorney from any employee of the district could potentially be
privileged. In Upjohn v. United Srares,' 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 other for that f disclosed ed would embarrass or likely be detrimental
in to the
requested be held Invloiate
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, 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 responsibilities to another client or to a be-materially
limited by the lawyer's third person, or by t
lawyer's own interests unless:
15 449 U.S. 383,394-95 (1981).
16. FfA2ARo, ETHKS ANP YME PAAcrcE 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
o reveal it to the whole board. Model
cannot dissuade the individual from the action or persuade him or her t
. Rule 1.13(b).
06/16/2003 12.24 FAX 6175568989 STONEMAN CHANDLER MILLER ii� 005/011
138 What Boards and superintendents Should Know About school Attornap
(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 Q) 006/011
139
School Low In Review 2003
one common area where separate counsel may not be just advisable but may be required
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 o0efi`erson 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, inner 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.
MULTIPLE ROLES OFTHE ATTORNEY
An attorney is not just a legal advisor, but also an advocate, mediator, problem solver and
counselor (consiglieri). 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 (Colo. 1976).
19. Id. at 1276. See also Lockhart v. Bd. of Educ, 668 P.2d 959 (Colo. App, 1963), aH'd in part, rev d in part on other
grounds. 687 P.2d 1306 (Colo. 1984).
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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.
«.*
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.
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 PROMPTATTENTION AND BE FULLY INFORMED 0
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." 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. Lindqulsf v.Abben, 265 N.W. 54,56 -57 (Minn. 1936).
21. Four Strategic Goals Guide NSa4s Work NSBA SCHOOL BOARD News, Dec. 24, 2002 at 2,6.
C
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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.
141
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
one doing business with the l di�stri re on or members of employees of the district, school
y
board.
THE C LIENT 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
it no longer wishes to use the attorney. Again, withdrawal can generally be achieved very
0 22. David Rubin, school Board Members'Liabiliry Under section 1983 (NSBA COSA,1992).
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142 Wheat Boards and Superintendents should Know About School Ahorneys
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 26S, 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 & Associates 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 sernPle is a partner in the Denver, CO law firm of Semple, Miller & Mooney, P.C. that
specializes in representing school districts and other public and private employers. He 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). 0
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school Law in peview 1003
LEGAL SERVICES QUESTIONNAIRE*
0
143
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?
y in individual cases where a lawyer is needed (such as
Do you retain a private attorney onl
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? oint out le al issues and
Does your school district attorney attend board meetings and p 9
potential legal problems?
Does your school district attorney meet regularly with the Supe rinten de nt l roblems?e
administrative leadership to address legal issues and identify p otentia l P
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?
by the hour "? Do you pay different rates for different types
Do you pay for all legal services"
of legal services?
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What Boards and Superintendents Should Know About S chool Attorneyx
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 (S) 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 it? 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 USE A •
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 Selecring 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.
CJ