Variety is the spice of life for higher education lawyers

By Olivia Clarke

After Priya Harjani graduated from law school she worked for a few years as a litigation associate at a mid-size firm.

During that time she represented Northwestern University, which was suing the city of Evanston over the constitutionality of a historic district. She worked the case up for four years, and on the verge of trial, it settled.

Northwestern liked working with Harjani, so when a position in its legal office opened up they asked her to apply. She became an assistant general counsel to the university in 2004, and then became an associate general counsel in 2007.

”One of the things I like about being in-house is, you get to know and understand your clients and the business,” Harjani said. ”As a general litigator in a law firm you get to know each client as you need to know the case, and then you move on to another case.

”What I love here is I know the people, I know the issues, I know these issues as they evolve, and I think I provide better advice and counseling by having that background.”

Harjani is one of many in-house lawyers throughout the country who represent universities and colleges. About 3,600 attorneys from about 1,400 campuses, or about 700 colleges and universities, comprise the membership of the National Association of College and University Attorneys.

Colleges and universities are often compared to small cities because of the variety of legal issues they face. Being an in-house higher education lawyer means handling a plethora of legal matters involving everything from employment to research to real estate.

During a time when most lawyers are encouraged to become more specialized, these in-house lawyers must be generalists who feel comfortable handling a variety of issues every single day.

”In a for-profit corporation, from my perspective, it comes down to the bottom line, so everything comes down to that,” Harjani said. ”In a university, we are not-for-profit. Our mission is to educate the students. As a result, the decisions the business people make are not always focused on the bottom line or the dollar figure, which is good, but it complicates things.

”While [the business people] need to be financially sound, absolutely, there are a lot of different drivers as to why we should do certain things or how we should do certain things.”

Daily life

While Harjani’s hours may be shorter than those she kept at a law firm, the days are often more draining because she handles more legal issues in one day, and those issues can often be more pressing.

It is not unusual for her to handle 15 different matters on a given day. Certain legal issues often require her immediate attention, so she regularly re-works her day.

When Harjani went in-house she took a pay cut, and she sometimes misses not spending as much time in a courtroom. But she likes the variety of her job, and likes no longer needing to complete timesheets and account for every minute of her day.

To make the transition from her law firm job to her in-house position easier, she took advantage of NACUA, an organization that serves attorneys who practice higher education law.

She attends regular workshops through NACUA, and a group of local members meet quarterly for lunch to socialize and discuss any common legal issues they face.

People often assume that higher education lawyers only handle cases involving students, but that doesn’t even touch on the legal issues they face, she said.

Each of the seven lawyers in Northwestern’s legal department handle a specific group of legal issues, but they also deal with other areas too.

Harjani’s portfolio includes litigation, employment matters, and issues involving relations with the city of Evanston. She’s also working on Northwestern’s project to open a new campus for journalism and communication this fall in Qatar.

”We have every issue that a Fortune 500 company has, plus more,” Harjani said. ”The other thing about higher education is it’s constantly evolving, and changing. There are always new issues coming up. You can never say, ‘now I know everything.’ It’s about keeping up with new developments.”

Bruce Melton, associate general counsel at the University of Chicago, said he enjoys getting involved in the early stages of a matter, as opposed to being brought in later in the process — which was often the case when he worked in a law firm.

”I have found, to my surprise, that the relationships you develop with administrators and faculty at the institution are deeper and more rewarding than I expected,” Melton said. ”Outside counsel are always outside, but now I am on the team. I find it to be personally and deeply rewarding.”

Lawyers handling higher education law need to be generalists, he said.

”[In-house higher education lawyers] seem to be the most content lawyers I know,” Melton said. ”They are happy with their jobs. They have traded away a little bit of the financial benefits for a much more intellectually stimulating environment. I think it is just the coolest job a lawyer can have. I can’t think of a better one.”

Some people wrongly assume that in-house higher education lawyers kick back in the summer because school isn’t in session, said Tom Cline, vice president and general counsel at Northwestern. Others believe they rely on outside lawyers to handle the more complex legal issues, which also isn’t true.

”We all handle a huge volume of work,” Cline said. ”This is not a place for people who think, ‘I would like to have a nice 9-to-5 job.’ I do think that is a misconception for some, but not from the outside lawyers who work with us. They constantly remark about how they are astonished by how much we have to cover.”

A good in-house higher education lawyer must know a little bit about every type of legal issue, said Ellen Kane Munro, vice president and general counsel of Loyola University of Chicago.

Munro often bounces from one topic to another. For example, in one day she worked on a major real estate transaction, the faculty handbook, a FERPA (Family Educational Rights and Privacy Act) issue and an international legal question.

A good higher education lawyer, she said, is ‘’somebody who is open to new ideas and to questioning platitudes and the status quo, because universities can get pretty comfortable doing things the way they’ve always been doing them.

”There may be legal issues that get overlooked if you don’t question what has been done and think about ways to do it better.”

Jose Padilla, vice president and general counsel for DePaul University, said he likes how he’s never bored with his job.

Higher education lawyers deal with very complex matters, he said. For example, DePaul is one of the largest landowners in Chicago, and that means handling sophisticated issues in areas like real estate and finance, he said.

Many of the lawyers on his staff wanted to work in this type of environment because they liked the level of responsibility, he said.

”Most wanted to work at a university because you feel good about what you do at the end of the day,” Padilla said. ”You are enabling, and empowering [the university] to help students as opposed to helping clients make cars or make batteries … The portfolios are pretty broad and they can exercise a lot of initiative — more so than they get to at a law firm, or even a corporation.”

The mission

Cline likes that in the 19 years he’s worked for Northwestern, he’s never been embarrassed to represent the school.

”When you are working in a college or university setting you are working with a lot of really bright and very committed people,” Cline said. ”I deal with a great deal of senior members of the administration who listen very carefully to what their lawyers advise them, and are also intellectually curious themselves.

”They don’t accept a lot of things at face value. They are constantly pushing you to define your position. The level of engagement is really stimulating.”

Munro appreciates Loyola’s goal of developing the whole student.

”Working for a non-profit and a university is very gratifying,” she said. ”The feeling of contributing to the education of young adults, of supporting the faculty and staff and being a resource to them is really satisfying. It is renewed every year when you attend graduation.”

Padilla said he likes that DePaul is a Catholic urban institution with a mission of expanding first-generation students’ access to education. The university tries to provide education to those who never received that exposure, he said.

”In a for-profit world, the legal mindset is what is minimally necessary for an institution to do,” he said. ”Here we are looking for what is the maximum thing to do for the mission. We are not going to be an office that says ‘no.’ If a client says, ‘I want to do X,’ and there are possibly legal impediments to doing X, the conversation doesn’t end there.

”It is incumbent on my lawyers to find other ways to get to X … Our job is to provide a legal mechanism to protect against that risk, as much as possible, without paralyzing or stopping the possibility of good outcomes.”

Beth Harris, vice president and general counsel at the University of Chicago, grew up around universities because her father was an academic. When she thought about leaving her law firm, she considered going in-house in a university or college because she appreciates their mission.

”It’s a very stimulating environment where you have all these incredibly smart people thinking about all kinds of issues, and then teaching and doing research,” Harris said. ”Those are the things, at least for me, that are important values for society … It is a lot more fun to be working on issues when you see they are contributing to something that you view as worthwhile.”

”[Faculty members] are not just sitting around an ivory tower thinking odd thoughts,” she said. ”They are involved in serious contributions to the world, both in research and in terms of communicating what they have learned to the next generation.”

Juliette Ferguson, associate general counsel for City Colleges of Chicago, said she believes in City Colleges of Chicago’s mission of providing an affordable college education. In many cases, Ferguson said, the colleges she represents are strong anchors in the community and also provide community-based programs.

Renee McCarthy, associate university counsel at the University of Illinois at Chicago, likes that her job allows her to contribute to higher education.

”I believe really strongly in higher education,” McCarthy said. ”I think that lawyers get a lot of bad press for creating more problems than anything else. In my job, I’m trying to prevent problems from happening so things can go forward … I see my job as facilitating things rather than standing in the way.

”It gives me a sense of contributing to something really bigger than myself.”

Covering each area

When Cline planned to give a presentation a few years ago about his legal staff to Northwestern’s board of trustees, he went through about six months of files and made a list of the subject areas his lawyers address.

During the presentation, he read off 16 different subject areas.

When he finished he asked the board what those topics had in common. Someone said, ”They all begin with A.”

And Cline responded that his lawyers also handle bankruptcy through zoning.

”A lot of them were really, really surprised by the major things we get into here,” he said. ”We are like a Fortune 100 company in that we have the full range of issues that those companies would have — anything from employment matters to real estate, basic tort questions, contract issues.

”We [also] have athletics. We have a medical school, which presents a whole set of unique issues. We have a group of employees called faculty, who have tenure, something that doesn’t exist in the outside world. And we have students. We have issues that are really unique.”

More regulations of higher education exist today than in the past, Cline said. And while the mission of the university may not have changed, an external perception exists that it has, he said.

”I think there’s been an increasing view on the part of the students who we educate, and the parents who send their students, that they are consumers of a product and they hold us to certain standards in the delivery of that product,” he said. ”We see greater challenges — challenges to grades, graduation requirements. We live in a more litigious society. We are not immune from the kinds of trends you see in other corporations.”

According to NACUA’s 2006 survey, on average, the higher education legal offices who participated in the survey reported having 33 active litigation files open at any one time. Of that number, outside counsel handled, on average, 18 of those matters, according to the survey.

Of the responding institutions, 56 percent reported that at least one full-time equivalent attorney devoted 50 percent or more of his or her time to labor relations. Other common areas of specialization included litigation (45 percent); intellectual property (40 percent); and real estate (36 percent).

Harjani, from Northwestern, said the legal department must handle so many more issues today, and those issues are often more complicated than they were in the past.

For example, the federal government is tightening restrictions regarding what research can be exported to another country, she said. If a Ph.D. candidate happens to be from a foreign country, they could be deemed an export if they leave the country after having seen particularly sensitive research in a faculty member’s laboratory.

Or if the information is on a laptop, and someone goes to another country with the laptop, they may have wrongly exported that research, depending on what’s on the laptop, she said.

Northwestern’s legal staff handles a host of intellectual property issues because some researchers at the university invent new products, and that brings into consideration certain legal questions, Harjani said.

”It is not all theory and education,” she said. ”There is a lot of development that comes out of research universities that leads to breakthroughs.”

Ferguson said because City Colleges of Chicago is a public entity it must follow federal and state statutes such as the Illinois Public Community College Act, which governs such things as tuition requirements, budget requirements, and board meetings.

Because the college system is funded by public dollars, it must follow different regulations than private institutions, she said. She must be aware of all these requirements when counseling and advising the university about such areas as expenditures and competitive bidding.

Learning how to advise a public entity, Ferguson said, ”was challenging, but that excited me about the job … It was exciting to me to learn how to work in the public sector.”

The University of Illinois at Chicago is also a public entity. That means the university’s lawyers must be mindful of such requirements as the Freedom of Information Act, McCarthy said.

”Our records, as an institution, are much more open,” she said, comparing her university to private institutions. ”We are always accounting for what we do here. We have to account to the people who support the institution, which are the taxpayers.”

Being a public institution means they must be even more concerned with due process issues when students and employees have grievances or complaints, she said.

Harris, from the University of Chicago, said the legal offices in colleges and universities were very different places 15 or 20 years ago. Universities and the legal matters surrounding them have become so much more complicated since that time.

”I think it’s because the regulations are far more complicated,” Harris said. ”The public funding issues have become more prominent, both in the funding of students’ education and in funding research.”

While some legal matters universities handle may be no different than what an in-house corporate lawyer faces, they often require a faster response time, said DePaul’s Padilla. For example, when the university decided to allow a controversial figure to speak on campus his office needed to be available to assist on any legal issues that occurred.

”One of the things I’ve really grown to appreciate is the fact that we are a major enterprise,” Padilla said. ”I think people think of universities as the stereotypical sleepy little outposts where all you are doing is providing rooms for teachers to teach students. It is so much more sophisticated and complex than that.”