As professionals, lawyers are trained to represent diverse interests in different matters.
In our practice concentrating on employment agreements for senior executives in education, we have more often represented the individual executives who are being hired or (a good deal less frequently) fired: Presidents, Vice Presidents, Provosts, Deans and Senior Administrators of universities and colleges, and Heads of independent schools.
However, we do sometimes represent the educational institutions themselves in the employment contract process, and the view from “the other side” is of invaluable assistance in serving all of our clients in the educational arena.
For instance, we recently were privileged to represent an excellent small liberal arts college in the contracting process which was the conclusion of an extensive formal search for a new President.
In representing an institution, unlike representation of an individual executive, there is the possibility of having to deal with divergent voices from a Board of Trustees or search committee containing different points of view. In our recent experience, we were fortunate in being able to discuss and take our instructions from only two individuals, both of whom were experienced and sophisticated, thoughtful and decisive. It made the contracting process both efficient and more effective.
Representing the college or school in attempting to come to fair and agreed-on terms with a new leader brings with it a salutary shift in our perspective as lawyers, and increases not only our experience, but our depth of understanding in other instances where we represent the individual executive.
More specifically, representing different “sides” presents us with an opportunity to focus on creative ways to reconcile some of the inevitable tensions in educational executive contracts.
The attorney for a potential College President must achieve adequate compensation as well as legal protections for a client who will be asked to do a tremendously difficult “24/7” job with its attendant stresses, not least of which is his or her obligation to reconcile the conflicting concerns of multiple academic constituencies.
By contrast, an attorney representing the institution quickly learns to deal with the hard fact that most colleges, universities and independent schools, even those with substantial endowments, are working with finite resources, and these resources are stretched to meet a wide variety of demands.
No contract or set of contracts completely resolves this tension, but a close understanding of the issue can help in structuring unconventional solutions to individual conflicts in the executive contract negotiation.
One thing is clear: when a new President or Head of School is selected, all parties are eager for the impending “marriage” to work, and enthusiastic about trying to satisfy the legitimate needs of the other party. The school wants to welcome the new leader and be responsive to his or her specific concerns. The new President or Head wants to use the opportunity to see more deeply into the needs and thought processes of the particular institution they will have to administer; he or she also wants to initiate their relationship with the Board and other administrative bodies on the right note.
This is not some meaningless “honeymoon period.” At the end of a lengthy search process, tone and “optics” are genuinely important. It is the lawyers’ duty—on both “sides” of such a matter—to be guided by intangible but real sensitivities.
No amount of sensitivity should keep an attorney from fighting for their client’s interests as far as practicable, but that obligation should be informed by finding creative ways to resolve issues where the parties’ legitimate needs conflict. As an example, the timing of compensation—present salary payment versus deferred compensation—can sometimes allow the parties to find common ground.
Finally, the proper exercise of professional skill is based on accurate information updated in a timely manner, which provides a good lead-in for me to recommend the outstanding insurance newsletter of my friend Richard Harrison. Richard’s ability to educate the reader and personally reflect on trends as well as fundamental issues in insurance coverage and related investments is unparalleled, and I highly recommend that you ask to be placed on the list to receive his newsletter at www.theharrisongroup.com.
And speaking of deferred compensation, Richard’s recent piece on the wisdom of Shohei Ohtani’s willingness to defer all but $20 million of his ground-breaking $700 million salary package is a gem. Of course, the Los Angeles Dodgers are likely to have the wherewithal to make good on that massive deferred obligation, which stands in contrast to questions which would arise about financially shaky institutions. That, however, is a discussion for another time.
We wish our readers a joyous and enjoyable Spring!
