Legally Speaking (Insight On the Issues)
- By Peter F. Lake
- April 1st, 2017
As higher education has
become more heavily regulated the
roles of lawyers and legally trained
individuals have evolved and expanded. Just
25 years ago it was unusual to have more than
a single individual serving as general counsel
on campus. In those days, the general counsel
might have supervised compliance efforts and
even some risk management efforts. Today, general counsel’s offices
tend to be more heavily staffed — including working in concert
with outside counsel. The general counsel’s work may be augmented
also by professional compliance administrators, including as chief
compliance officers. It is very common for chief compliance officers
to either have a terminal degree in the study of law (J.D., etc.) or substantial
experience/training in the legal dimensions of compliance.
“Compliance University” means more lawyers, a more complex division
of functions among the legally trained and tasked.
What are some of the more important divisions of functions
among general counsels and chief compliance officers?
First, general counsel must be a practicing lawyer in good
standing who possesses a J.D. and admission to at least one state
bar. A chief compliance officer may possess those qualifications
but does not necessarily need to them.
Second, the general counsel represents the institution and is not
the client, nor a principal of the business; a chief compliance officer is
a manager/administrator — and by implication does not, and cannot,
represent the institution or any of its employees. If a chief compliance
officer is a licensed attorney there may be some advantage
in not holding an active local license so as to avoid confusion about
representation of clients. Student staff or faculty may informally seek
legal advice from a chief compliance officer, which they are unable to
offer. It is important to protect and articulate the respective roles of
the general counsel and the chief compliance officer.
Third, the general counsel performs the functions of a lawyer —
such as offering advice, collaborating with clients on policy development
and the formation of documents with legal implications,
helping the institution clarify whether matters raise legal issues and
to identify those issues, identifying trends and developments in the
law, and offering input on the non-legal implications of legal advice,
inter alia. The chief compliance officer, on the other hand, does not
offer legal advice but instead uses legal training and knowledge
to make strong managerial decisions and to lead legal compliance
efforts from an internal policy perspective. The chief compliance
officer typically oversees compliance staff and monitors compliance
efforts. In addition, this individual identifies promising/best
compliance practices, is often instrumental in identifying expert
consultants and continuing education opportunities. The general
counsel gives advice; the chief compliance officer gives direction.
Fourth, conversations with the general counsel may be privileged
and confidential; conversations with a chief compliance officer are
not. Chief compliance officers have fiduciary and other duties to
share information; conversations may otherwise be discoverable.
Legally trained and licensed chief compliance officers may encounter
challenging situations where faculty staff or students will start a
conversation by saying, “may I tell you something in confidence?”
Fifth, the general counsel will focus on the letter of the law and
evidence of compliance. The chief compliance officer may focus upon
the spirit of the law — the animating principles behind regulatory
mandates — and will seek to achieve internalization of compliance
metrics on campus. The chief compliance officer as a leader of compliance
efforts must seek to find ways to motivate people to come into
compliance and to understand and accept compliance metrics.
Sixth, the two functions may have differences but they share
common purposes as well. The general counsel and the chief
compliance officer are heavily invested in promoting the rule of
law on, and off, campus. Moreover, both functions involve helping
the institution to understand how external constituencies may
evaluate actions of an institution. Managing public narratives and
various constituencies who seek to hold higher education accountable
requires substantial collaboration between the two positions.
Senior leadership in higher education must become increasingly
conversant with this division of functions. Attempting to combine chief
compliance function with general counsel functions risks challenges
for both. Campuses that have become comfortable with certain ways of
interacting with legally trained individuals may need to be retrained
on how to operate effectively with individuals with legal training in
distinct roles. Moreover, as legally trained individuals continue to move
into higher education in greater numbers it will be important to culturalize
those individuals into the unique dynamics of higher education.
We must remain primarily focused upon our educational mission; all
compliance efforts and legal advice are here to serve that purpose.
This article originally appeared in the April 2017 issue of College Planning & Management.
Peter F. Lake is professor of law, Charles A. Dana chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law in Gulfport, FL. He is the author of The Four Corners of Title IX Regulatory Compliance: A Primer for American Colleges and Universities (Hierophant Enterprises, Inc. 2017). Professor Lake can be reached at firstname.lastname@example.org.