Partnering with the School Attorney
A People Talking interview with Julie Fay, Partner and Co-chair, School Law Practice, Shipman and Goodwin, LLP
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The December People Talking Interview - Julie Fay, Partner and Co-chair, School Law Practice, Shipman and Goodwin, LLP
Before we get to the interview, which is packed with good advice from Julie Fay (I can’t even say “Julie F!”) I wanted to say a few words about leadership communications and the appearance by the presidents of Harvard, MIT and UPenn before a congressional hearing on antisemitism on campus that made headlines. And not the good kind.
If you’re a head, this is case in point why you want to explore and reflect and then practice expressing your school’s values and beliefs directly, briefly and with moral clarity. I sometimes felt like I spent seven years as head navigating the lines between academic free speech, hate speech, and bullying and harassment and how these all manifested in both our student and faculty handbooks as codes of conduct. This is not easy and often the lines get blurry. And when these issues come up, your attorney can be a big help in helping you define the lanes and deciding how to move forward. I don’t know if we always got it right - and it’s probably impossible to always get it right. But we certainly put in a lot of time trying to get to clarity.
The presidents gave very credible, nuanced responses regarding these lanes, referring to context, etc. I totally appreciate what they said and where they were coming from. But that was not what was really being asked of them. That was not the subtext. What was being asked for - regardless of partisan opinions about the hearing itself - was moral clarity from the most elite of educational leaders. And what is a very reasonable response in one setting can come across as cowardly hairsplitting in another. In last night’s New York Times story, it was reported the UPenn board “pressed President McGill and other leaders to express university values with greater clarity.”
Many parents will be on your campus for holiday events or to pick up their students from winter break in the coming weeks. What will you say if a parent asks your opinion about these hearings and the presidents’ statements? It’s worth giving it some reflection.
I found partners like Julie Fay invaluable in navigating complicated situations where these lanes came together, even when I was fairly sure it wasn’t a legal issue. I really hope all of you heads have as strong a partner as I had with Julie and her colleagues at Shipman. My first year, I called one of Julie’s now-retired colleagues, Henry Zaccardi, “the Fifth Beatle” of my senior team. The Shipman team was part of that pit crew that made me feel less along in a tough job.
You may be familiar with Julie’s work from her always-helpful workshop presentations at CAIS, TABS and NAIS. And yes, she is as talented as you think she is. Enjoy the interview!
J Faulstich
I had no idea just how important the head/attorney relationship was when I first became head and how helpful in so many ways I would find working with you and your Shipman colleagues.
What advice would you give to a new head about how to develop that relationship?
J Fay
If a new or incoming head of school has the luxury of being able to establish that relationship right at the beginning and get to know her attorney or legal team before she needs them, that is ideal. I think meeting on campus is a good idea. You want to make sure that your legal counsel, whether they are new to the school or you are new to them, that either way they understand your school and they understand who the players are. Just having experience with “independent schools” is not enough. The attorneys need to understand how things work at your particular school. I would make sure that your counsel has all the foundational documents at their fingertips. Do they have your bylaws? Do they have your handbooks? Do they have your enrollment contract? Do they have your appointment letters? Then you don't have to start every conversation with making sure that they have this or that. That's just immensely helpful.
I also think it's important to understand the communication expectations. What is the best way to reach you? Can I email? Do I call? Which number do I use? If I need to reach you in an emergency, what's the preferred mode of communication? If your primary attorney is not available, what does the head do and who do they contact? Establish all of that in advance so that when things are potentially on fire, you’re not scrambling around wondering if it’s OK to text the attorney or not, or even if you have a direct cell number. And if it’s a firm, it’s also having a handle on different attorneys’ areas of specialty and the roles they can play at the school. Who does the head go to for employment questions? Who does the head go to for student-related questions?
On the flip side, I always appreciate it when I understand the expectations of who can contact me. Who controls access to the attorney on the school side? Should all questions be coming through the head of school or the CFO? Who's the filter on that end? Because it's not unusual for me to get calls from folks that I'm not sure are authorized to have contact with legal or to be seeking advice. I always want to double-check and make sure that you're not running up legal bills. Or that your CFO or the head of school doesn't know that someone is seeking legal advice.
J Faulstich
What advice would you give a new head about how she establishes the parameters internally of who can contact the attorney?
J Fay
I think in general, unless there is a long standing relationship where you've already got an assistant head or someone else who has a point of contact, I think it's best to have a head of school or CFO control the flow of communications. Because that way, even if it's authorizing maybe the dean of students to call the attorney, they're in the loop that there's an issue that warrants seeking legal advice. The head gets to filter and decide whether or not you really do need legal advice, or do they just need input from the head of school before they proceed? The head is then part of the problem-solving.
J Faulstich
Other things that can be helpful in working with the school attorney?
J Fay
Very practical things are helpful such as framing up the issues you want to talk about and consolidating them so that you use one call rather than three separate calls. Providing any background documents that you can read in advance, think about, and formulate some thoughts coming into the meeting. Keep in mind we bill hourly so if you have the luxury of spending time doing that, that's a very efficient use of the school attorney. You've given me a preview ahead of time of what the issues are. Getting me on the phone, filling me in and then sending, for example, a forty page contract to review and then we have to circle back again, that’s much less efficient. And of course, if it’s a crisis, that’s a different scenario altogether.
J Faulstich
I felt so fortunate working with you and everyone we worked with at Shipman and Goodwin. It was always a prompt response and on-point advice. Also, you put up with a lot of my reach-outs that were, “I don't know if this is exactly a legal issue, but it’s a tricky issue - what are your thoughts?” and I always really appreciated that. You’re always dealing with so many schools and you always provided some perspective and context while also identifying or ruling out any legal issues at play. I really felt like you were part of my team.
But I also hear from heads who are not having that experience. I sometimes hear, I called the attorney. It's been a week and I haven't heard back from them. There are thousands of heads all over the country, in very different situations. What’s your advice on how you judge whether or not your attorney is a good fit for your school and situation? Especially if you’re a new head?
J Fay
I think a new head of school is in a position where they should be evaluating the quality of the legal services that they're getting. There may be quality in certain areas of the legal representation and maybe not in others. Maybe you're learning that the law firm you work with is not full service enough that you have services that are outside their scope. But as a head, you need to understand that.
At your preliminary meet and greet, understand the scope of services that are reasonable to expect from your firm. Ask a lot of questions. Some examples - does that firm deal with immigration issues? If I've got a visa or student issue with a visa, is that outside their scope or not? At least you know going in because it doesn't mean that you're not going to use them at all - it just means, maybe I need to have multiple folks. Do you do litigation? If something goes up to litigation and insurance counsel is handling that, how do you work with that? You're asking those questions upfront and asking about expectations.
J Faulstich
As head of school, If I reach out to the attorney, what's a reasonable amount of timeframe for her to get back to me? How do I flag or signal when things really are time sensitive?
J Fay
This relates to the quality of school/attorney communication. If I get a red flag email that tells me it's an emergency, and I know my schools use that prudently, I’ll get back ASAP or if I’m tied up, pass it on to another of our attorneys to get back to you ASAP. Usually if I get a text message, that signals it’s very important. The last thing I would want is an email that comes in without any indication that it's really important, and I don't get to it until the end of the day or the next morning, and after the fact I realized that it was time sensitive, like a mandated reporting issue.
Some of that is also making sure in the front end that your head of school knows how to communicate time sensitive things. I believe in transparency and honesty. I think your relationship with your legal counsel is a long term relationship. It's something that, from my perspective, if you don't have open, transparent conversations about things, then the head or attorney approaches it with different expectations.
And recognizing when the relationship is maybe no longer serving the needs of the school. That happens. It may be that the firm is too narrow in scope in the services that they can provide. Maybe there's not enough depth there so that you don't have the backup or the emergency. Maybe the turnaround is just not time-sensitive enough.
There's a lot of different reasons why you might want to go in a different direction. When heads of school are working with any type of outside service, you want good recommendations, so talk to your colleagues, see who else is out there and what kind of service your colleagues are getting from their school attorneys. Is the school attorney part of a firm that understands independent schools, because you are a unique organization and a unique industry? You can be a very good employment lawyer, but you also need to understand how that applies in the independent school arena. That's important. I think there's understanding your legal needs, but also understanding the practical needs that you have. I think you're looking for legal services that can provide practical advice and not just quote you the statute.
J Faulstich
I think that matters. It's not just “how am I going to deal with this employee matter,” but I need to understand the trickle down effects of something like “If I terminate an employee where part of their role is as head of a dorm, what are some of the other issues that we're going to be facing? What are the unintended consequences? Will other dorm parents then fall into an overtime situation?” Because again, there's the legal and the practical.
J Fay
I think an incoming head wants to know who their support people are, legal, auditors, your accountants. There's a number of different peripheral services that serve the school well. It's always good to re-evaluate and reassess if all these vendors still meet our needs after 10 years or after five years.
I think it's also always good to have check-in points. If your legal counsel is not reaching out to you, you should be reaching out to them periodically, at least once a year or so, to ask, how are we doing? Is there anything that we, as a law firm or your attorney, is there anything that I can be doing better or that we've missed the mark on? Are our bills slow? Are you finding that there's errors in the bill? Even mundane things like that are important.
Jfaulstich
What about rates and legal costs?
J Fay
I think schools should have honest communications and honest conversations about financial expectations and costs. A lot of firms are open to alternative fee arrangements or getting creative. If you are on a very fixed budget, do you want periodic reminders if a particular matter is starting to get more expensive? Or it might affect how you staff something if you've got a litigation matter or you've got something like a big building project and you're working with your law firm on a construction matter. Do you want to have conversations about how they get staffed for efficiency? I think cost containment is a conversation to have with your legal counsel, staffing expectations.
I always appreciate it when I get honest feedback. If we haven't done good work, please tell me. I don't want people to suffer in silence and think, I didn't really feel like I got value for what I got. Tell me. Because I may not see it the same way, or it may be a colleague who did the work and it's outside my scope and I don't have a way to gauge how that experience went for you.
I think there has to be an element of trust and an ability to have candid conversations about all those topics.
J Faulstich
There are different ways to approach using your attorney. I've seen one approach that you call the attorney and you do what they tell you. I've also seen the approach, which is more how I operated and was based on advice my father gave me many years ago, that you connect with the attorney to understand the risks at play. You get advice, you talk about it, and decide the best way forward.
I don't think that either approach is wrong but I am curious if you have any opinion? A lot of what I write about starts with forming your approach to dealing with a problem. What’s your opinion about legal advice and the role it plays in managing the school.
J Fay
I fall into the category that if you're working on a significant issue, getting legal advice is one part of that equation. It, of course, matters. The degree to which it matters depends on what the issue is. There are some issues that have more bright lines than others. Sometimes it's just understanding the risks involved and you can go in two different directions. As your attorney, I'm going to outline the pros and cons of both. If the law says something very clearly, you know that if you go in the other direction, you're going to violate the law. That's something you take into consideration.
I think legal advice is something that heads of school should use as a resource. We don't run the school. You run the school. Ultimately, all decisions are falling to the leadership team and the head of school. You might frame it, “upon the advice of counsel, we have decided to do X” because counsel has been persuasive and convinced you that that's the right course. I never want to hear a head of school say, “We can't because the lawyer said no.” Because then you've just ceded all your power.
That's how I see it. I actually had a head of school years ago tell me, I always respect and weigh the advice and input from my attorney. But I don't always follow it.
But if you don't follow it, you need to understand why you're deviating from it, and there's a risk assessment that comes into play. Schools have lots of novel ventures, and there are things that are not necessarily clear decisions. If it was an easy answer, you wouldn't call us, right? The reason you're seeking advice is it's an area you need advice on, or it's a more complex issue, and you need to consider all aspects of it, including the legal aspect. If you're thinking about doing a tuition reset, you're thinking about letting an employee go, you're thinking about doing a refinance, you want to look at all of these different issues to make sure that you understand all the information. I want to head a school to make an informed decision. That's the goal at the end of the day.
Thank you to Julie Fay! And I already have ideas about more topics we might explore together in the future…
See you next week for a a short year in review recap, info about next year, and some upcoming interviews and topics that are already on the docket for 2024.