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Should University and College Presidents Use an Executive Employment Attorney in Their Contract Negotiations?
Eight Answers to Their Questions

A major part of our practice as executive employment attorneys is the representation of college and university presidents and heads of secondary schools.

We represent these senior academic leaders when they are hired, counseling them in the negotiation of their employment agreements. We negotiate the terms and advise them on their renewal contracts. We negotiate the separation and severance packages of these same academic executives when they are terminated. And we frequently are consulted “in between” their hiring and firing, when a college president, dean or head of school has a problem which may ultimately impact their own employment situation.

Nonetheless, the idea of using an attorney in connection with these important personal matters is initially foreign to many of these senior executives, particularly if they are first-time presidents or heads.

Here are the answers to some of the most frequent questions they ask before engaging our services:

1.     Q.     “Why do I need an attorney?”

A.     For several reasons: To provide an objective evaluation of the contract you are being offered; to understand the full ramifications of the written terms and conditions you are being offered; to make certain that entitlements and protections customarily included in these types of contracts have not been intentionally or inadvertently omitted; to obtain the best possible deal and an unambiguous written embodiment of that deal which is legally enforceable; finally, to have someone with experience advocate for the prospective president or head of school as they cannot do for themselves.

2.     Q.     “Can’t I use the attorney who did my will or represented me in the sale of my house?”

A.     We do not practice real estate law, do title searches or understand the tax complexities of will drafting. Likewise, attorneys who do not have extensive experience in academic employment contracts will not have sufficient mastery of the concepts and details of such contracts. If you want proof of this, feel free to ask your real estate attorney if they understand what “Retreat Rights” are.

3.     Q.     “Won’t the Board of the institution which has offered me a job be offended by my using an attorney?”

A.     If they are, you should ask yourself whether this is the right job for you.

Why would a Board who is hiring someone to lead their institution in 2021, a job requiring sophisticated management and financial skills, want to entrust their school to someone sufficiently naive as to forgo the assistance of a knowledgeable attorney to advise them regarding any contract with profound implications for their own careers and families?

4.     Q.     “What role does such an executive employment attorney play in the academic contracting process?”

A.     Depending on the situation, our services range from consulting with the prospective president or head of school behind the scenes to actually negotiating the terms of the contract with the school’s lawyers.

5.     Q.     “Are there any advantages in having an attorney negotiate on my behalf?”

A.     There are a number of advantages, but the most obvious is maintaining a distance from the negotiation which preserves the principal relationship which will determine the success of the president’s tenure — his or her relationship with the Board of Trustees — and keep that relationship “above the fray.” As your attorney, we can ask questions and even make demands which, if they do ruffle any feathers, can always be blamed on zealous lawyering. Of course, since we strive for a consistent civility of discourse in all our discussions, we know how to frame our requests for changes to the contract, and even increases in the monetary terms if warranted, so this rarely becomes an issue.

6.     Q.     “I have not had much involvement with lawyers, and I am afraid of the legal costs.”

A.     Most individual clients, in every area of law, are fearful about professional fees. In fact, however, using a knowledgeable and experienced attorney who does not have to “reinvent the wheel” on a deal is almost always highly cost-effective. We are busy and always conscious of wanting to add value. Finally, you should also know that it is not uncommon for the employing school to reimburse the new leader for a meaningful part of his or her legal expenditures in connection with their contracts.

7.     Q.     “Can’t I wait to pay a lawyer to fix things if something goes wrong with my employment situation?”

A.     Two answers to this question: first, “fixing it” will be measurably more difficult, if not impossible, if you have a bad or inadequate contract to work with. Second, fixing a problem which could have been avoided in the contracting process is far more expensive in terms of legal fees than getting it right to begin with.

8.     Q.     “Cutting through all my concerns, is it really worth it for me to engage your services?”

A.     For the answer to that question we are pleased to provide references to our clients, who range from the leaders of some of the nation’s most well-known universities, colleges and secondary schools to far smaller, more modest and lesser-known institutions, including community colleges. You should feel free to ask them yourself as to their level of satisfaction.

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.