Legal Brief
Pointers and Pitfalls When Picking Counsel
By DAVID B. RUBIN/School Administrator, May 2017

School districts function in a highly regulated and litigious environment where access to competent legal advice is a must. In an era when you are expected to be transparent and held accountable as the school district’s leader, you want to be careful about avoiding landmines when procuring and managing legal services.

Bear in mind that, as a superintendent, you are not selecting your own attorney but the counsel for your employer, the board of education.

Determining Needs
The first step is a needs assessment. A local attorney or firm may be able to handle all of your district’s legal requirements, but consider whether your issues are so sophisticated that you require separate counsel for special education, labor negotiations or other specialized practice areas.

Larger districts often hire in-house attorneys who are fully integrated into the district’s management structure and may serve in policymaking or other roles where their legal backgrounds are helpful. Be sure to assess, in advance, any potential criticism for adding another highly compensated administrative position to your workforce. Some state school boards associations may offer confidential legal consultations as a membership service or access to a law firm to represent association members.

Competence in school law is necessary, of course, but not enough to sustain an attorney-client relationship on its own. Today’s legal profession is a service industry where accessibility, responsiveness and relatability are key components of a successful attorney-client relationship. High demand for a particular attorney’s services may be an indicator of talent, but that attorney will be of little use if she’s so busy you can never reach her on the phone.

Personal Relations
Don’t downplay the importance of personal style. The right “bedside manner” often is the deciding factor in choosing a physician and should be a priority in selecting attorneys as well. The relationship works only if you have implicit trust in the legal confidante you have chosen.

Recommendations from respected colleagues or your state administrators association can be helpful in finding suitable candidates. Your state’s school attorneys organization also may be able to provide lists of qualified counsel. One credential to look for is active membership in the National School Boards Association’s Council of School Attorneys, which reflects a commitment to the practice of school law and access to a nationwide network of fellow attorneys and resources.

It’s often said there’s nothing as expensive as cheap legal advice. A lower hourly rate may seem attractive, but it also can be deceiving. To be sure, many tasks can be performed competently and more cost-effectively by junior attorneys at lower rates, but if they’re on a learning curve that your district is paying for, you may be in for some unpleasant surprises later. A more experienced attorney, who presumably needs less time to address the matter, could well be worth the higher rate.

The goal is a sensible allocation of responsibility that gets your district the biggest “bang for the buck” over the course of the school year.

Cost Control
A flat retainer for a specified menu of services can be an effective means of controlling legal costs. I recommend these arrangements for day-to-day consultation, where a timely phone call for some preventive lawyering can nip a legal problem in the bud before it blossoms into a full-fledged crisis. Some administrators understandably are reluctant to make those calls if they’re likely to show up on an itemized invoice, so removing that disincentive may limit your financial exposure in the long run.

In New Jersey, where I practice, the state education department requires districts with high legal expenses to have detailed procedures in place to prevent overuse of attorneys. Nothing is wrong with such practices as long as they don’t discourage district leaders from seeking legal advice when it’s truly needed. Identify, in advance, which board members and administrators are permitted to contact the attorney and enforce those limitations strictly.

David Rubin is an attorney practicing education law in Metuchen, N.J. E-mail: rubinlaw@att.net. Twitter: @dbresqnj