On occasion, the administration of a school district or members of a school board will require legal assistance. There are typically three different types of attorneys working with school districts: 1) state association legal counsel, 2) retained legal counsel and 3) in-house legal counsel. When an issue arises, the various members of the board of education, school administrators or school employees may through a series of conversations and communications involve the state association’s legal staff, the school district’s in-house legal counsel and an outside law firm. Adding all of these lawyers to the discussion of an issue creates an opportunity for conflicting legal information and inconsistent legal advice for school districts, but may also provide the school district with more than one path to address the issue. When this happens, legal considerations come into play about the participation of the attorneys involved.

When all three of these types of school attorneys are involved in conversations and solutions to a potential issue, different ideas may emerge regarding the conversation and potential solutions. There are times when these differences are minor and times when the differences may be significant. The challenge for the attorneys involved is making sure that the organization, the membership and those directly performing legal services for school districts understand the role of each party involved in order to do what is in the best and ethical interest of the client.

The Oklahoma State School Boards Association’s legal staff does not have attorney-client privilege for our general phone callers. However, when individual board members, administrators or employees of school district members contact one of the attorneys for legal information, the specifics of those conversations are maintained in a confidential manner. This creates a relationship of trust with a school board member, administrator or employee that benefits the organization and the school district. If the lawyer were to make information “public” or did not maintain confidentiality between callers, trust in that association would be lost, and the association would no longer be a viable resource for information.

State association counsel should let member districts know the privilege does not apply at the outset and with the district when membership is renewed.

THE ROLE OF IN-HOUSE COUNSEL
Many school districts employ in-house counsel who is generally an employee of the district and provides legal advice and services to the school board and administration. This attorney’s role is similar to that of a corporation’s counsel, which brings up unique obligations and scenarios, especially around the identity of the client, the nature of attorney-client communications and relationships with fellow employees.

Who Is In-House Counsel’s Client?

The in-house counsel has one client – the school district. This nebulous legal entity takes concrete action through its constituents. In fact, Oklahoma Rules of Professional Conduct Rule 1.13, which specifically deals with clients as organizations, states that the attorney represents the organization or district “acting through its duly authorized constituents.”1 The “constituents” are the board of education, superintendent and, at times, other administrators and employees who are acting in their official capacity as district employees and within the power given them by district policy.

It is important to understand the exact nature of these constituents. Generally, individual board members do not act on behalf of the district; rather, the board as an entity, acting in its official capacity during a legally called public meeting, is the constituent of the district. The superintendent, to whom the board delegates the authority to manage the administration, is also a constituent of the district when acting in her or his official capacity, as are employees in leadership positions within the administration.

It is also important that employees understand the first client is the school district and training should be provided to new employees to understand that individual employees (e.g. superintendent, deputy superintendent, CFO, etc.) must be acting on behalf of the district, and not for personally competing interests, to qualify as a constituent of the district. For example, if the board has indicated a desire to discipline or even terminate the superintendent, the board is the constituent acting on behalf of the district, and the superintendent has a competing, personal interest – his or her own employment. In this instance, the in-house counsel must represent the district by advising the constituent board, as the superintendent is acting on behalf of her or his personal employment interests, which are in conflict with the constituent board.

As explained in Rule 1.13, this idea of the district as the in-house counsel’s client bestows a certain responsibility to protect the district in a manner that may cause an awkward dynamic with other employees. For example, if the in-house counsel becomes aware of acts by the superintendent that could cause substantial injury to the district (e.g. illegal treatment of employees, fraudulent practices, etc.), the duty to the client may require that she or he notify the board or even law enforcement. This duty places the in-house counsel in a unique position in relation to other employees, even superiors.

When Are Communications Protected?

The in-house counsel, just as all other attorneys, must not disclose information relating to the representation of a client except in the instances listed in Rule 1.6.2 With regard to in-house counsel, the privilege may extend to communications with the board and certain individual employees if acting in their official capacity and on behalf of the district. The comments and Rule 1.13 from the ABA Model Rule state in comment 2 that when a constituent of an organization, acting in their official capacity, communicates with the organization’s attorney, the communication is protected by Model Rule 1.6.3 This privilege clearly extends to legal communications with the district’s board in executive session, and legal communications with the superintendent and other administrators, if acting as constituents for the district.

Communications with middle- or lower-level employees may also be privileged, depending on the circumstances. The U.S. Supreme Court, in Upjohn v. United States,4 449 U.S. 383 (1981), found that in-house counsel communications with employees are privileged if these communications are 1) at the direction of district superiors, 2) made to obtain legal advice from counsel, 3) concerning matters within the scope of the employees’ duties, 4) made to obtain legal advice from counsel and 5) the employees were aware that the purpose of the conversation was to provide legal advice to the district client.5 Therefore, an administrative assistant’s conversation with in-house counsel will be protected by the privilege if it meets the above-listed criteria. However, during any such conversation, counsel should clearly explain that she or he is acting as counsel for the district, not the employee.

A common misconception by board members is that their individual communications with in-house counsel are protected by the privilege and cannot be disclosed to the full board. Unless authorized by the full board to represent the district in a certain capacity, individual board members are not constituents of the district and generally will not have the benefit of the privilege in individual conversations with in-house counsel. Even if the privilege extends to an individual member, she or he will not have the authority to require counsel to keep the conversation from the full board. It is important for the in-house counsel to clearly communicate these rules to the board and again to an individual board member, if the situation requires it.

Even when the in-house counsel is speaking with a constituent of the district, the substance and context of the discussion is still important in determining whether the privilege applies. It is not uncommon for an in-house counsel to provide advice on business matters rather than legal topics. When the nature of the communication is to provide thoughts on business matters (e.g. efficiency of operations, effectiveness of certain venders, etc.), the conversation will not be protected. Only conversations that are meant to provide legal advice to the client, through a district constituent, will receive protection. Therefore, it is important to clearly define the nature of the discussion and, when possible, to separate communications that provide legal advice from those that do not.

THE ROLE OF RETAINED COUNSEL
Retained legal counsel is typically engaged by a school board to provide legal services to the school district. In some states, a state association’s legal staff may become retained counsel depending upon duties provided. In addition, school districts will commonly have a law firm on retainer and the law firm will work directly with the administration and/or board of education. When questions arise as to whom the retained counsel represents, that issue is covered by the Oklahoma Rules of Professional Conduct and the American Bar Association’s Model Rule 1.13 and its accompanying comments, in effect in that jurisdiction.6 The school district itself is the client.

When working as retained counsel for a school district, the attorney may often have to remind clients that the overall client for the attorney or the law firm is the school district itself. This can create additional legal issues when the interests of a school board member or members, the administration and/or school employees become diverse. There will be times when an individual board member or employee of a school may be told they will need to retain a personal attorney as the school district’s legal counsel cannot defend them in a particular situation.

THE ROLE OF STATE ASSOCIATION COUNSEL
State associations typically employ attorneys to provide a variety of services to member school boards. Many states provide a type of free “legal information” to membership. During business hours (and on occasion during board meetings in the evening), a member or members of the association’s legal staff is available to provide legal information during meetings. In addition, members of the legal staff may perform a variety of other services for school districts such as policy making, providing staff development training, whole board training and/or working on education legislation at the state and federal level. It is critical that members of the association’s legal department make it very clear to school district board members, administrators and employees that the legal information provided is not considered to be legal advice and therefore is not subject to special protection from disclosure. Oklahoma Rules of Professional Conduct Rule 5.7 addresses the provision of law-related services.7

Some state associations also provide legal services that would include representation of school districts in legal matters. This type of service typically involves retainer agreements or a specific contract that outlines the scope of work to be performed and identifies any fees that may be imposed as a result. With this type of representation, attorneys must be mindful of Oklahoma Rules of Professional Conduct Rule 5.4 and its accompanying comments in effect in that jurisdiction8 that expresses the professional independence of the attorney. It is critical leadership of the state association and all employees understand that the attorney providing legal services cannot have their professional judgment as an attorney directed or controlled by a nonlawyer.

COLLABORATION OF ATTORNEYS
Attorneys working directly with school districts in Oklahoma have, for the most part, enjoyed a wonderful working relationship for several decades. Many years ago a member of a law firm working with school districts began a conversation with a managing partner about whether or not the attorneys working with one of the firm’s client school districts were violating the Rules of Professional Conduct by interfering with a legal relationship. This brings into discussion the Oklahoma Rules of Professional Conduct Rule 4.2.9 Rule 4.2 places all attorneys on notice that they should not be communicating with someone who is known to be represented by and involved with legal counsel in a matter.

State association counsel is typically not a party to a lawsuit or involved in litigation. As a result, Rule 4.2 does not come into play. In order to provide the attorneys at the state association with peace of mind, the organization requested an opinion on the issue of whether state association attorneys would be interfering with retained counsel by taking phone calls from school board members and administrators in districts that are represented by retained legal counsel. The Oklahoma Bar Association issued an informal opinion which provided that the attorneys working with the state association would not be interfering with the role of retained counsel by answering questions posed by board members and employees of schools as it related to legal information.

The members of the state association legal staff have consistently worked to refer school board members and school employees who have questions involving legal advice and specific direction on a legal matter to their retained legal counsel. This is most important when association counsel is aware of a pending lawsuit or the likelihood of one. So great care is taken to not knowingly interfere with the role of district legal counsel.

This article was first published by the National School Boards Association, Council of School Attorneys 2018 School Law Seminar, Copyright NSBA 2018, all rights reserved, reprinted with permission.

ABOUT THE AUTHORS
Julie L. Miller is deputy executive director and general counsel for the Oklahoma State School Boards Association. She is a member and past president of the Oklahoma School Board Attorneys Association. She is a graduate of the OCU School of Law, Denver Paralegal Institute and the University of Wisconsin-LaCrosse.

Jessica Sherrill is director of unemployment for the Oklahoma State School Boards Association. She is a member and past president of the Oklahoma School Board Attorneys Association. She is a graduate of the OCU School of Law. She is currently Rotary District 5750 governor and member of OKC Midtown Rotary.

Rooney Virgin is the director of government affairs for the Oklahoma State School Boards Association. She is a member of the Oklahoma School Board Attorneys Association. She is a graduate of the OU College of Law and Auburn University.

Kim Bishop is a staff attorney for the Oklahoma State School Boards Association. She is a member of the Oklahoma School Board Attorneys Association. She is a graduate of the OCU School of Law. Previously, she was senior staff attorney with the Oklahoma House of Representatives.

Brandon Carey is a staff attorney for the Oklahoma State School Boards Association. He is a member of the Oklahoma School Board Attorneys Association. He is a graduate of the OCU School of Law, where he was editor-in-chief of the OCU Law Review (2004-2005).

1. Rule 1.13 – Organization as Client

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) Except as provided in paragraph (d), if

(1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

(d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.
(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

2. Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

3. ABA Comment on Rule 1.13

[2] When one of the constituents of an organizational client communicates with the organization’s lawyer in that person’s organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client’s employees or other constituents are covered by Rule 1.6. This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6.

4. 449 U.S. 383 (1981).
5. Upjohn v. United States at 394.
6. ORPC Rule 1.13 and ABA Model Rule 1.13 are the same. See endnote 1.
7. The full text of ORPC 5.7 is as follows:

Rule 5.7: Responsibilities Regarding Law-related Services

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-
related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

(b) The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

8. The full text of ORPC Rule 5.4 is as follows:

Rule 5.4: Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

9. The full text of Rule 4.2 is as follows:

Rule 4.2 Communication With Person Represented By Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order