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May 25, 1995

Policy provides guide for employee-lawyer interactions at Pitt

Faculty and staff members who deal with Pitt lawyers — whether in-house ones or outside counsel hired by the University– should keep in mind that such attorneys are working for Pitt, not necessarily its individual employees.

That distinction can be vital when an employee's interests conflict with those of the University, according to a policy on the "Role of University Attorneys Vis-a-Vis Individual Employees in Fact-Finding Investigations." The policy provides guidelines for dealings between employees and Pitt's Office of General Counsel or attorneys for the University of Pittsburgh Medical Center.

Pitt senior administrators are expected to give final approval to the policy, which was approved this month by Senate Council and Faculty Assembly.

The University Senate bylaws and procedures committee drafted the policy, with help from University Counsel Lewis Popper, in the hope of clarifying issues raised last year by Pitt cancer researcher Bernard Fisher.

Fisher alleges that University lawyers at first defended him against charges of research improprieties made against him by the National Cancer Institute and other federal officials, but later abandoned him in the hope of deflecting criticism and responsibility for Fisher's actions.

According to Fisher, Pitt attorneys gave federal officials access to information that Fisher had incorrectly assumed was protected by attorney-client privilege. Fisher alleges that the University lawyers never warned him of the exact nature of their relationship to the institution and its individual researchers.

Pitt officials deny misleading Fisher. But they decline comment on specific charges in Fisher's lawsuit against the University because the case still is in litigation.

By law, Pitt attorneys owe allegiance to the University and take their instruction from its "authorized representatives," including trustees, officers and deans, "unless the attorney's independent professional judgment leads to a conclusion that the authorized representative is acting or has acted contrary to law or the University's interest," the policy states.

When a Pitt attorney interviews or otherwise communicates with an individual faculty or staff member about University business, "the employee should understand that the attorney may disclose to other University personnel, or to others if authorized by the University, the content of the communication to the extent that the attorney deems it appropriate to protect or promote the University's interest," according to the policy.

"Although the communication between the attorney and the employee may in some circumstances be protected by the University's attorney-client privilege from compulsory disclosure to third parties, the decision whether to assert or waive the privilege belongs to the University, not to the employee." In most circumstances, the interests of Pitt and its faculty and staff will agree, and in such cases University attorneys may simultaneously represent the institution and its individual employees, the policy says. "Faculty and staff should be aware, however, that if it develops that the University's interests come into conflict in a material way with those of the employee, the attorney would have to withdraw from representation of the employee. In such situations, the attorney may often properly remain as counsel for the University even if the University takes a position adverse to the employee." As soon as a Pitt attorney learns that the interests of the University "diverge in a material way" from those of an employee involved in an investigation, the policy states, "the attorney should preface any further investigative communication to the employee with an indication to that effect. Similarly, if the employee believes that his or her interests may be, or become, different from those of the University, he or she should so inform the attorney.

"In either case, the attorney should then advise the employee of the option to obtain independent legal representation." Pitt's Policy and Procedure on Faculty and Staff Indemnification describes when and how the University may indemnify an employee for the costs of such representation, the policy points out.

Even if Pitt's interests conflict with those of the employee, the University — through its lawyers or other officials — is "generally entitled" to documentary and oral information that came to an employee in the course of working for Pitt, the policy notes. "Thus, it is ordinarily proper for a University attorney to communicate with an employee about a University matter even when the attorney is not able to represent the employee in that matter," according to the policy.

— Bruce Steele n

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