Trusteeship - May/June 2020 - 9

LEGAL STANDPOINT

Myths about Lawyers

S IS TRUE of many occupations,
lawyers suffer from misunderstandings about their roles. This
includes views held by leaders
of colleges and universities. Unfortunately,
such misunderstandings can interfere
with the lawyers' abilities to serve their clients. The purpose of this column is to identify 10 such "myths" in the hope that better
understanding will benefit the institutions.
This column reflects decades of law
practice rather than experiences with
my current or any particular employer.
Also, there are more than a few lawyers
who act according to stereotype, so there
is some truth to many of the myths discussed here. My intent is not to complain
but to improve communications and
relationships.

1. If there is an overriding myth about
institutional lawyers, it is that they represent individual leaders. In fact, the ultimate client under state licensing rules is
the "entity" itself. While the entity speaks
through individuals, the lawyer represents
the entity, not individuals.
2. Lawyers should explain what the law
is and leave business decisions to others.
This line between "business" and "legal"
advice is artificial. Lawyers are required to
consider moral, economic, political, social,
and other factors in providing competent
advice. Also, legal issues are substantially
intertwined with most of the important decisions made by colleges and universities. It is
in the institutional client's interest to include
lawyers in the decision-making process.
3. Lawyers are a support function and
not part of institutional leadership.
An institution that is not structured to
include lawyers as part of the leadership

ISTOCK/ SERTS

BY STEVE DUNHAM
team in diverse areas such as crisis management, finances, HR, safety and security, and
governance is missing out on the leadership
skills that a good lawyer can provide.

lawyer to not advise the client about alternative ways to structure a transaction to mitigate risks, legal or otherwise.
7. Lawyers are wordy, do not speak or
write plain English, and are poor communicators. In fact, lawyers are trained to speak
to lay jurors, regularly draft communications
for public audiences, and receive significant
education in writing skills.
8. Consulting with lawyers slows down
decisions. This may be true in the short
run, but ignoring lawyers results in poorer
decision making with adverse consequences,
including delay.

4. Lawyers are "hired guns" who advocate for clients. While it is true that lawyers
owe a duty of zealous advocacy to clients,
they also owe duties to third parties and to
the public. Client representatives should not
expect lawyers to violate the law, misrepresent the facts, or act contrary to the "entity's"
interests just because it may advance the
client's cause in the short run.
5. Lawyers cannot be in charge of compliance because their job is to defend the
institution, not to comply with the law.
Lawyers have duties to the public and to the
law such that their compliance obligations
may override their duties to defend the
client.
6. Enterprise risk management is not a
legal function. In fact, lawyers work with
risks every day. It can be malpractice for a

9. Lawyers should be copied on communications or included in a meeting
to protect the attorney/client privilege.
Without more, this is simply not an accurate
statement of the law. A communication is
only privileged if, among other things, it
relates to legal advice. Including a lawyer as a
"cc" or a potted plant in a meeting does not
meet this test. The client must actually seek
legal advice; copying a lawyer and wanting
a communication to be confidential are not
enough.
10. Lawyers are risk averse. It is true that
part of a lawyer's job is to advise about liability. But lawyers are also change agents. It is
a lawyer's job to mold the law to the institution's needs and to mold the institution to the
needs of society. Wise institutional leaders
will take advantage of their lawyers' abilities
to evaluate risks while also using their abilities to take risks and create opportunities for
the future.
Steve Dunham, JD, is the vice
president and general counsel for
Penn State University. Email: ssd13@
psu.edu.

MAY. JUN. 2020 TRUSTEESHIP 9

Trusteeship - May/June 2020

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