First, a bit of unfinished business: at the end of my last blog, I offered what I thought was an apt quotation, and identified the author as Dr. Samuel Johnson. The source of the quote was correct, but as two of my erudite readers, international lawyer George McKinnis, and real estate executive (and famed Manhattan tour guide) Richard Warshauer, both informed me, I had gotten the quotation wrong. It should have been, “Depend upon it, Sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” Thanks for this correction, friends.
Recently, we received an inquiry about our services from a senior academic administrator who was being offered a much bigger job. The job came with real challenges, but would be compensated at two, maybe three, times the highest amount that the individual had previously earned.
Nonetheless, despite the importance of the new contract, and although the legal fees would be modest in comparison to even one year of this person’s prospective base salary, I could tell that the individual was not just “shopping”, but was genuinely hesitant over whether to hire counsel at all.
What accounted for such reluctance, in a situation in which a commercial executive with minimal sophistication would have secured legal counsel for themselves before receiving the formal offer of a new position? In our practice of representing College and University Presidents and Heads of independent Schools, this is far from the first time we have confronted the unspoken question, “Do I really need a lawyer? How bad could it be if I just take the contract they are offering me?”
Why is this uncertainty about legal representation even an issue?
I believe that there are a number of reasons:
1. Fear of Conflict. People who are not accustomed to using a lawyer except in connection with their purchase of a single-family house or the drafting of a will, are fearful that hiring an attorney means inserting a source of conflict into an otherwise friendly situation. They worry that they might look too aggressive. In actuality, the reverse is often true. If I were a Board Chair (usually a successful business person) of an educational institution, and I found that I had offered the top job to someone who accepted the position without having it reviewed by legal counsel, I would start to wonder whether the winning candidate—usually chosen after a lengthy and not inexpensive national search—was too naïve or inexperienced to fill such an important managerial role.
Moreover, an experienced attorney is careful to build a friendly, thoughtful and constructive relationship with the attorney representing the school. A lawyer does their clients a massive disservice by acting like a jerk. We have never lost a deal for any client by adopting an antagonistic attitude in negotiations.
2. Fear of Cost. Unlike routine visits to doctors (which in any event are largely covered by insurance), most individuals do not have many occasions to need a lawyer. Some of those occasions, divorce or estate planning, involve life transitions which are often thought to be unpleasant, and the average person, including academic executives, does not have much experience with attorneys’ fees. One answer to this fear is to obtain not only a good understanding of what the legal services will cost, but perhaps even more importantly, an appreciation of what can be added to even a good employment offer by having knowledgeable legal representation. The right attorney adds value in two separate ways: (1) actual monetary value, usually by suggesting the inclusion of other items (types of deferred compensation, as just one example) in addition to base salary; and (2) important protections in case of situations, such as termination or being named in a lawsuit, which neither party envisions at the blissful beginning of the employment relationship. There is almost never a contract so favorable to the individual academic executive that it cannot be improved by counsel.
3. Aren’t All Senior Academic Contracts Really the Same? Absolutely not. That “the devil is in the details” may be a cliché, but no less true for that. In every such contract, there are formal details—the definition of “Cause” for termination, the scope of indemnification, the mechanism for dispute resolution, the requirements of notice— which may seem unimportant, but can in fact cost the unwary executive, years after the contract is signed and the parties’ initial enthusiasm has cooled, many times the legal fees to be properly represented at the outset.
Lisa, Theresa and I wish our readers a good (and less chilly) end of winter!
