University Times

What is the role of University attorneys?

To the editor:

There is a lesson to be learned by faculty and staff from the conduct of University representatives in response to the concerns expressed about the National Surgical Adjuvant Breast and Bowel Project by several elements of the federal government. Actually, there are a number of lessons to be learned but I have chosen to focus on one. The lesson is that faculty and staff, approached by attorneys representing the University seeking information from them, must recognize that these attorneys are counsel to, and represent, the University, and do not necessarily have an attorney-client relationship with the faculty or staff member.

Whether the attorney is an employee of the University or is from a law firm that the University has contracted with for legal services, the attorney may not be subject to the responsibilities and duties that, according to law and rules of the profession, are owed by counsel to their clients, in the contacts with faculty and staff. Therefore, faculty and staff must be very careful and circumspect in making statements or providing documents at the request of University attorneys. Faculty and staff must recognize that University attorneys are not required to give employees a specific warning that anything they say may be used by the University in a way that may be detrimental to them as individuals. They should also understand that the University, in efforts to deflect criticism from, or avoid liability for, itself, may decide to separate itself from faculty and staff in some circumstances with the goal of relieving itself of responsibility for what has been said or done by faculty and staff.

This is not to say that there are not instances when no conflict or potential conflict is present between the interests of the faculty or staff member and the University. However, the events of the last several months strongly suggest that a faculty or staff member should assume that University counsel does not have the interests of the individual at heart and that, whenever an opportunity arises to protect an interest of the University at the expense of the individual, it will be taken.

The higher the position held in the University structure by an individual, the greater the likelihood that the interests of the University and the individual will be deemed essentially identical, rather than divergent. Conversely, the lower one is in the hierarchy, the greater the likelihood that the interest of the University and the interest of the faculty or staff member will be seen as inconsistent. That is because an institution, such as the University, can only act through designated individuals. The higher level decisions of the University are made by its higher level personnel. Thus, what is done by a highly placed individual is more clearly viewed as the action of the institution and, therefore, it is more difficult to separate the University from the individual. With regard to the lower rank individual, it is easier for the University to take the position that the individual violated or ignored certain rules or requirements imposed by the institution, or other rules respecting performance that might be applicable, in the conduct of the individual's work on behalf of the University, and that the University should not be seen to have approved or condoned activity or statements by such personnel, which may serve as a basis for criticism of, or sanctions upon, the University by third parties.

The University needs to have explicit rules governing the conduct of its attorneys when making contact with faculty and staff. The rules should require that appropriate notice be given at the outset of the encounter either that there is a conflict of interest, that the attorney represents the University and not the individual, and that the individual should consider whether he or she needs an attorney or, if at that particular juncture it appears that the University and the individual do not have divergent interests, that the attorney will serve as counsel to the individual, as well as to the University, but that if any possible conflict is later noted, the individual will be given prompt notice of the conflict and reminded that he or she may need to secure private counsel.

Critical to the effectiveness of such rules is the quality of the communication by the attorney with the individual. The attorney must not downplay the possibility that conflict is, or may become, present, and the implications of conflict upon the relationship.

If the University already has rules governing the conduct of its legal counsel along the lines of the foregoing, that fact needs to be made known to faculty and staff. If such rules have not been established, they are necessary in order to protect the legitimate interests of faculty and staff, and to maintain the integrity of the University and the attorneys who serve it.

Nathan Hershey Professor of Health Law GSPH Lewis M. Popper, general counsel, responds: I appreciated the opportunity to see Professor Hershey's letter addressing University faculty and staff about the role of University attorneys in fact-finding inquiries.

I agree with many of Professor Hershey's statements of legal principle. The University's lawyers try to follow those principles when we perceive the possibility of a conflict of interest between an employee we are interviewing and the institution. I have invited Professor Hershey to discuss with me his ideas on the implementation of those principles.

One of the letter's points with which I disagree, however, is the statement that a faculty or staff member should assume that University counsel does not have the interests of the individual at heart and that, whenever an opportunity arises to protect an interest of the University at the expense of the individual, it will be taken.

That statement is very much at odds with the philosophy and actual practice of my office and of the outside attorneys we engage. Although we do in fact represent the University as an institution, we strongly believe that the University has a vital interest in supporting employees who have acted reasonably and in good faith, and in ensuring the fair treatment of all employees — even if it appears that they may have engaged in serious misconduct.

Far from taking opportunities to protect the University "at the expense of the individual," we take great pains in cases involving allegations of misconduct to recognize, respect and protect the individual interests of the employees involved. If this were not so, such cases would be far less agonizing than they are.

Professor Hershey in his letter also suggests that counsel for the University may not always have adequately explained their role to faculty and staff interviewed in the recent National Surgical Adjuvant Breast and Bowel Project (NSABP) inquiry. The issue is currently in litigation, and it would not be appropriate for me to address specific facts at this time, but it appears that Professor Hershey formed his view before the full facts were available to him. I categorically deny his suggestion.

————————————-

Delivering quality service

To the editor:

I have been employed at the University of Pittsburgh for seven years and have been attending CGS night classes for five of those years. Registering for classes has always been an experience I disliked, because inadvertently something was always wrong: I did not have my Employee Request for Tuition Benefits form filled out and sent in time (which would cause me to be billed the full rate), the classes I wanted were full, or I needed my adviser's approval to register. Anyone who is a full time employee and a student at this university knows what a hassle it can be to work full time and go to school at night, and because my job location is RIDC Park, it's even a bigger hassle.

Despite the hassle, I really want a degree, so once again I registered for fall classes. I did this early but recently had the need to do a drop/add. After work on Wednesday, Aug. 10, I drove to Oakland and made my way to the fourth floor of the Cathedral. I plopped down in a chair and after about five minutes of sitting there studying my schedule of classes, I looked up with what must have been a perplexed expression because a woman sitting across from me actually smiled at me and pleasantly questioned: "Do you need some help?" "Well, no, not really," I suspiciously responded. She couldn't really mean that. In the five years I have been registering for classes, never has anyone pleasantly offered to help me without my even asking. I always felt more like a bother than anything else. Five minutes elapsed and again I looked up. This time she questioned with a smile, "Are you sure you don't need any help?" I hesitated and said, "Yes, maybe you can help me." And did she help me. She went and got my records, sat down with me and together we updated my file. She helped me understand everything I ever wanted to know about how to pick the right classes. Gina Calcagni, who works in CGS registration, is to be commended for her attitude, cheerfulness, consideration and patience. She delivered quality service to me and I can't tell you how appreciative I am for that. I also know that I am not alone. Having been a part- time student for five years I hear it all. I have heard some wonderful comments about this University, but the quality of service does not get rave reviews.

It is people like Gina who are going to be inspirational in changing the way we do service and will be instrumental in turning this University into the quality establishment we all know it can be. Our reputation as a university begins with the staff. Staff provide most students with their first impression of Pitt. Keep up the great job, Gina. Things are surely changing (you don't even have to fill out the Employee Request for Tuition Benefits anymore). My thanks to the person responsible for that also. With my busy schedule, every little bit helps.

Susan L. Selai

CIS (RIDC Park)