A PROPOSED RELATIONSHIP BETWEEN
LEGAL COUNSEL AND THE ACADEMY
This is a discussion paper (with a list I have made up over the
years) about some considerations I believe essential to describe the
current and future relationships between higher education counsel
and client or, at the very least, a description of the areas of law or
experience through which counsel and client interact.
I am in the position of having transitioned in-house from
private practice through which I served as either general counsel or
special counsel to several institutions: public and private, four-year
and two-year. I also became familiar with the dexterity of the
proprietary sector as well as the challenges of distance education.
To adequately understand our role as counsel, I think we
must first conceptualize our institutions themselves as a profession
or as an “industry.” The Association of Governing Boards of
Universities and Colleges periodically publishes a list of public
policy issues for higher education. In the list for 1999 and 2000,
two entries caught my attention in preparing this paper:
“Information Technology and New Competition” and “Creating a
Sustainable Society and Future.” These two ideas perhaps best
reflect the scope of change and serve as a compass for where
higher education will go, left to its own devices.
We live in the dawning of the age of information technology.
This is only the advent of an era. I spend every day with the young
people who are currently designing and exploring the commercialization of the Next Idea. I am continually dazzled by their
[informed] view of what is coming and the effect each item will
have on our lives. What is not discussed with the same enthusiasm
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and optimism, however, is what, if anything, we should do or even
consider about the uses [or heaven forbid, restraints] for new
technology-spawned implements.
What about this sense of competition we have inter- and even
intra-institutionally? As our tenured and tenure-track faculty go
blissfully about their business of research and teaching, clinging to
the security perceived in their control or influence of the academy,
their untenured colleagues who own stock in their proprietary
educational business and, therefore, have a vested interest in its
success, maneuver to outflank their non-profit competitors.
Proprietors know their market advantage is their ability to act
quickly to effect course changes and develop entire new curricula
that can be introduced into the marketplace of ideas within one
academic year if not one semester.
Meanwhile, in the established non-profit sector, massive state
systems choose to prove that they are many things to many people;
but one thing they are not is a system. Multiple campus course
duplication is rampant and indeed, degree granting redundancy is
common even in some instances, to the extent that traditional fouryear campuses are allowed to offer associates degrees in direct
competion with the community colleges within the same university
and same geographic market basket.
And everyone is in the distance learning game. There the
competition is indeed systemic, blind and even frantic. The
struggle seems to produce a no-holds-barred race to be the “firstest
with the mostest” without regard to any internal or external needsbased analysis. What is here underscored is that information
technology will, in and of itself, foster dramatic competition within
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higher education and that some of us will be merged, closed, or
just barely survive…regretfully only on reputation and
endowment.
The highest and best use of counsel in this emerging
paradigm is that of confidential interdisciplinary advisor to the
college president. I do not mean as in the prior technical sense; not
as advocate, litigator, or negotiator but more as “consigliore.” My
justification for transforming the model from the traditional
reactive to the stimulator/pro-active is rooted in the second earlier
mentioned AGB issue: “Creating a Sustainable Society and
Future”. The underpinning for this view is developed in two
separate but interrelated areas of inquiry: the overall mission of
institutions of higher education in America and the ethical
administration of such an academy as it strives to succeed.
A college ought to be a community of learners; some old,
some not so old; some full-time, others not; some pursuing a
particular discipline, some engaged in activity incomprehensible to
their colleagues. In the course of this, there should be a sharing of
some sort [a sense of collegiality?] through which basic values are
established and, significantly, passed on from one group to the
next. Some of our constituent groups are comfortable with and at
times even insistent upon the sharing of information and
knowledge regarding the substantive aspects of their intellectual
inquiries. If one focuses on the technical disciplines alone, it is
almost cultish the way technologies and the techniques for
developing them are shared or borrowed and then redeveloped and
expanded upon. There are those who categorically state that this
custom is both the strength and weakness of Silicon Valley. What
seems to be missing even in many research institutions, however,
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is serious formal or informal discussion regarding the ethical
questions raised by the technologies themselves. The ideas need
ideals.
If one were to step aside and reexamine the ancient but
continuing role of lawyers in various societies, one would see as a
common thread learned individuals attempting to apply the
wisdom of philosophers to the problems experienced by the
citizenry. Lawyers have been described in literature and history as
the engineers of some cultures much as philosophers have been
depicted as their architects. The thought of lawyer as engineer is
perhaps more descriptive and relevant today than it ever was
simply because of the sheer speed and frequency of change in our
modern American lifestyle.
And what better place for that classical role to re-surface than
academia? There is no more fitting forum for a discussion
regarding the application or appropriateness of new technologies
than the very institutions in which they are bred, nurtured, and
released on an unquestioning, indeed supplicant public. Secondly,
there is no pecuniary gain to be had from this discussion and,
therefore, it will not be stimulated by market forces outside the
academy. Furthermore, discussions of ethics are by definition
initially unstructured and in need of the guiding discipline of those
who are comfortable with the notion of bringing order from what
appears at first blush, to be intellectual chaos.
Assuming enough interest amongst students and faculty [and
investment bankers] to generate even a conversation on the subject,
the gravity of the discussion, or the perception of such seriousness,
would be measured by the amount of clout given by either the
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focus of some centrally accepted leader of the faculty or the
attention of the president.
Enter, stage right, the General Counsel from the Office of the
President; not to promulgate or expand upon the subjects recited on
the attached list but rather to stimulate a discussion about how we
as a people relate to each other and to the machines we are creating
that either enhance or interfere with those interpersonal
relationships.
Having argued for an overall scheme for initiating the
discussion, and having appointed a high-ranking stimulator, I feel
the need to specify a starting point as well as a technique for
injecting this possibly unwelcome intrusion into an already
overcrowded curriculum. The technique proposed for introducing
campus-wide discussion is that of a modular insertion set up to be
given as part of the core curriculum, the point of insertion to be
determined by the dean of each school. The person delivering the
module is someone, possibly General Counsel, passionate about
the subject matter. The academic point piece to gain entry to the
larger issue of ethics in the use of technology can be a more
simplified but equally needed and immediately relevant discussion
about interpersonal civility in America. Interestingly, a new
source of philanthropy to explore these very subjects is emerging
from technologists who, having attained considerable wealth from
their inventions, now seek to initiate meaningful discussions about
ethics and civility in an effort to make a lasting contribution to the
society which provided them their wealth.
Perhaps I can be accused of oversimplification and/or
naivete, but my conclusion is the simple hypothesis that our lives
can and should be made better in other than technological ways,
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that the academy can and should be the place where the discussion
of that process is initiated and from which it is disseminated and
that tomorrow’s higher education lawyer can and should be the
person positioned to do so.
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A PROPOSED RELATIONSHIP
BETWEEN
LEGAL COUNSEL AND THE ACADEMY
By: Charles F. Carletta
Secretary of the Institute and General Counsel
Rensselaer Polytechnic Institute
110 8th Street
Troy, NY 12180
Phone: 518-276-8829
Fax: 518-276-3100
Email: carlec@rpi.edu
Stetson University College of Law
22nd Annual National Conference
on Law and Higher Education
February 18-20, 2001
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