Appalachian State Unversity Attorney's Office
|
University of North Carolina Division of Legal Affairs Contact Information: Dayton Cole, University Attorney
|
MISSION STATEMENT The mission of the Office of the University Attorney is to provide legal services for the University, with an aim toward the following objectives: 1. Assisting in achievement of University goals within the framework of state and federal laws, and policies adopted by the Board of Governors, President, Board of Trustees and Chancellor; 2. Compliance with applicable local, state, federal and international laws in all activities undertaken by the University; and 3. Education and training of University officers and employees to prevent or appropriately resolve disputes affecting the University's operations.
THE ROLE OF THE UNIVERSITY ATTORNEY AT APPALACHIAN STATE UNIVERSITY
1. The primary role of the University Attorney at Appalachian State University is that of counselor ("Attorney and Counselor at Law") with respect to legal issues. Since the University Attorney's client is the University as an institutional entity, counseling activities should be directed toward institutional officers acting in their official capacities. Ideally, the bulk of such activities will be "preventive" in nature. 2. Because the University is a large and complex organization, the University Attorney often finds in daily practice some conflicts between the interests of individual administrators, faculty, staff, students and other constituencies served or otherwise affected by the University's operations. Conflicts of interest between individual officials and the institution also arise occasionally. Great care must be taken to ascertain differences between individual and institutional interests when counseling personnel who, because of the nature of the institution, play multiple roles as employees and officers of the institution. The threshold question for the attorney at any given moment is: "Which officers/employees represent the client?" In order to minimize conflicts of interest and preserve the capacity of the office of University Attorney to deliver legal services to the University, the professional staff of that office generally cannot provide services to individual employees, students, or University-recognized organizations. to the extent that resources are available, students may seek assistance through the Office of Student Judicial Affairs. 3. At the campus level, the Chancellor may be identified easily as the single person whose duties and decision-making authority encompass the entire array of institutional activities. Therefore, the attorney-client relationship should be based primarily upon interaction between the University Attorney and the Chancellor, and secondarily upon interaction between the University Attorney and those to whom the Chancellor has delegated decision-making authority. 4. To the extent that a broad view of the best interests of the University may be taken, the University Attorney is likely to maintain an ability to ". . . exercise independent, professional judgment." Rule 2.1, Revised Rules of Professional Conduct of the North Carolina State Bar (2003). In this context, the University Attorney has an obligation to render legal advice and opinions to other officers and employees consistent with the attorney's understanding of the institution, its status under the law, its mission, and the impact of pending decisions or proposed actions on the fulfillment of its mission.
5. When questions or disputes arise with respect to legal rights and responsibilities of University employees or students, the University Attorney should have access to all reasonable means of obtaining information on which to base advice and opinions. In light of the attorney’s obligation to protect and preserve the legal interests of the institution, and the standard of conduct contained in Rules1.13 and 2.1 of the Revised Rules of Professional Conduct of the North Carolina State Bar (2003), the University Attorney should avoid active participation (as opposed to advisory roles) in grievance hearings, institutional task forces which make recommendations to the Chancellor, and divisional task forces which report to members of the Administrative Cabinet. If legal issues arise in the context of such activities, the attorney is in a better position to objectively analyze the facts and advise cabinet-level officers if such recommendations are not already influenced by the attorney’s personal involvement or work product. For example, grievance hearings should be recognized as fact-finding processes. While recommendations on remedial action may be made by a grievance hearing committee, the decision-maker normally is the Chancellor or a vice chancellor. The attorney should advise the decision-maker on procedural issues and appropriate institutional positions rather than engage in attempts to influence the decisions of a fact-finding body. Opposing parties might legitimately question the fundamental fairness of a process in which the institutional legal counsel advocates the position of any administrator or staff supervisor before a fact-finding body, and then resides in a position to advise the decision-maker regarding an appropriate response to that body's recommendation. Even if the attorney fastidiously avoids provision of counsel on the matter to the decision-maker, members of the University community may presume otherwise in the event a decision contrary to the hearing body's recommendation is rendered. The very purpose of the process would thus be subverted. This is the same principal upon which we base a prohibition against ex parte communications by one party to a judge during litigation. 6. The University Attorney should serve as a liaison between Appalachian State University and the legal staff of The University of North Carolina. The University Attorney should communicate regularly with the staff in the Office of the President to ensure compliance with policies of The University of North Carolina, as well as state and federal law. It should be noted that there may occasionally be disagreement between the University Attorney and members of the legal staff in the Office of the President on specific legal issues of concern to Appalachian State University. In light of the status of Appalachian State University as a part of The University of North Carolina, the University Attorney should advise the Chancellor of any such disagreement whenever possible in such a manner as to allow the Chancellor opportunity to thoroughly review the issue with appropriate officials in the Office of the President prior to the Chancellor’s making a decision or taking other action. 7. Likewise, the University Attorney should serve as a liaison between Appalachian State University and the North Carolina Department of Justice. While the Attorney General has statutory responsibility for representation of the University in litigation, the University Attorney should be prepared to assist the Attorney General's staff in the process of discovery and other pre-trial activities, as well as any other matter in which the Attorney General's staff requests assistance in representation of the University. The University Attorney should consult with legal staff in the Office of the President prior to recommending that the Chancellor request an opinion from the Attorney General. 8. The University Attorney may be called upon from time to time for advice or recommendations on matters of institutional policy, as opposed to legal counsel. The University Attorney should be careful to avoid any implication that such "policy advice" is mandated by law. The University Attorney should also discern and avoid situations in which competing factions within the University community attempt to disproportionately weight their respective positions on policy matters with "the University Attorney's advice." 9. The ideal of preventive law practice implies the necessity of providing a large number of people access to legal services relevant to their functions as officers or employees of the institution. The University Attorney must balance the demand for services, both in volume and scope of subject matter, with the obligation to provide legal services which address the most critical issues affecting the University. Within the current organizational structure of Appalachian State University and traditional notions of the attorney-client relationship, the University Attorney should seek determination of priorities for legal services by the Chancellor and other senior administrators. |