As the society in which we live becomes increasingly polarized, argumentative and litigious, there is more need than ever for good legal advice.
This is especially true for school districts, which seem to have become a hotbed of litigation. Consulting with your board’s attorney can mitigate or even avoid school district liability.
However, speaking with the board attorney can sometimes be a frustrating experience where policies, legal jargon, and expenses all form hurdles for the board member seeking legal advice. While no single article can address all the issues that arise in securing advice, this article offers a few tips to increase the probability of clear communication with the board attorney.
Get prepared First, it is important to understand how to access the board attorney. Many boards have policies that determine who can pose questions to the local attorney, and how they can do it. Before approaching the board attorney, review board policies regarding access. While at times frustrating, this policy limitation stems from state regulations, promulgated with the intent of reducing expenditures for professional services. Reviewing these policies ensures that the board member complies with his or her ethical obligations. It is also a best practice to notify the board president in advance as often the board president has a wealth of institutional knowledge and may be able to narrow the focus of the inquiry.
Board members should also understand that because most attorneys bill by the hour in six-minute increments, speaking to the attorney always creates a cost to the district. Multiple calls from board members on various topics can quickly add to the monthly bill. Therefore, it does not serve either the district or the attorney if the board member does not have a clear idea of the question being asked. Therefore, after reviewing board policy and consulting with the board president, the board member should review board minutes and or any relevant documents to gather the most salient facts to present to the attorney. This step is critical because as the old data input saying goes, “garbage in, garbage out.” In the legal context, this means that the attorney’s answer is only as good as the information presented. If the information is inaccurate, incomplete, or biased, the answer from the attorney could be similarly defective.
Be detailed The idea in speaking to the attorney is to obtain the best advice possible. To do so, it is critical that the attorney receive all the facts. Even small omissions can have a huge impact on the attorney’s answer. Factors that may not seem important to the board member may be critical to the attorney’s opinion. It also helpful to organize the information chronologically. When an attorney has to place events in sequence, it takes additional effort to understand the complete story and important details may not receive the attention they deserve until the proper sequence is understood. In addition, make sure you provide complete information to the attorney. When your questions are organized and detailed, you are less likely to forget your train of thought or become distracted by questions or unexpected responses.
Be honest Understand that information conveyed to the attorney is confidential. The board attorney cannot reveal confidential information without the board’s consent. In speaking with the lawyer, be prepared to convey all the facts, both good and bad, to the attorney. It is better to have negative facts come out in the board attorney’s office so that they can be addressed with due deliberation instead of having them come out in a way that embarrasses the board — during a public board meeting with the public and the press in attendance, for example. When the attorney receives negative facts in advance, the attorney can help mitigate any adverse consequences and ensure a better outcome.
Understand the attorney’s role It is important to understand that the board attorney is exactly that; the attorney to the board of education. Essentially, the attorney’s client is not you the board member, nor is it the administration. The client is actually the board of education as an entity, separate and apart from board members as a group of individuals. According to American Bar Association Model Rule 1.13(a), “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents (emphasis added).” The Model Rules also require an attorney who knows that an officer or employee has acted or intends to act in a manner that is in violation of a legal obligation to the organization or a violation of law is required to take reasonable steps that are in the best interests of the organization. In addition, if the attorney reasonably believes that an officer or employee refuses to perform a legal obligation, the lawyer likewise must take action to protect the best interests of the organization. However, before taking action, the attorney must consider whether the action or refusal may reasonably be imputed to the organization and whether the contemplated conduct could result in substantial injury to the organization. In essence, this means that confidentiality may ultimately give way to an attorney’s obligation to protect the best interests of the client.
Board members should also understand that the attorney’s obligation to maintain confidentiality is effective between the board and members of the public, but does not operate between board members. In other words, a board member cannot demand that the board attorney withhold board-related information from other board members.
In April 1976, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued Opinion 327. In that opinion, a school board member asked the board attorney to draft a resolution of censure against another board member, but never introduced the resolution to the board for discussion and/or action. When the other board members learned of the resolution, they asked for a copy. Feeling conflicted, the board attorney sought guidance from the Advisory Committee. In issuing Opinion 327, the Advisory Committee clearly indicated the attorney’s duties in this matter. Opinion 327 noted that since the board attorney was consulted in his professional capacity as the board attorney, the board member had no right to demand confidential treatment as to board matters. Furthermore, the opinion indicated that if the attorney understood that the board member was demanding confidentiality as against the remainder of the board, he should have advised the board member that he could not accept such confidences. The opinion noted:
“It is our view that the privilege or confidence belongs to the client, which is the board, and not to the individual member whose interests now apparently conflict with those of the board. As recognized by the inquirer, this view is supported by … the ABA Comm. on Professional Ethics and Grievances, Opinion 202 (1940). That opinion held that an attorney for a corporation has a duty to disclose to the board of directors information relating to wrongful acts of executive officers, even where the information is obtained in confidence from such officers.”
Therefore, it is clear that a board attorney may not withhold board information from other board members at the request of a single board member.
Ask to clarify Most attorneys understand that when speaking to board members they should limit the use of legal jargon. However, at times, the board attorney may slip into using terms that board members may not be familiar with or may explain things in a manner that is not clear. Board members should not be shy when an explanation lacks clarity or just needs additional information. If the matter is important enough to speak to the attorney, then board members should be able to clearly understand the attorney’s opinion and any proposed resolution of the legal issue.
Stay in touch Things are bound to change. Facts, circumstances, priorities and other elements under consideration change or new information becomes available. When facts change, the legal advices stemming from those facts may also change. Therefore, it is important to keep the attorney informed as events warrant.
Finally, you have to trust that the attorney is doing her level best in representing the district. The law can be a very complicated subject. Additionally, laws and regulations are constantly being revised and updated, new legal decisions impact the interpretation of those laws and these changes can often affect the legal opinion that was previously offered. Be sure that you understand the changes and the nuances of each distinction. With these thoughts in mind, your board should enjoy a fruitful professional relationship with its attorney.