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Tips and Trends in Academic Employment – Part 1

As executive employment attorneys representing college and university presidents, deans, provosts and other senior administrators in higher education, as well as the heads of independent secondary schools, we have noticed certain significant changes in the hiring landscape from even five years ago.

Several of these are particularly noteworthy, and here I will address one of the most striking:

Lining Up Counsel Ahead of Actual Appointment and Job Offer.

Even a few years ago, we were rarely approached to represent a new college
president in their contract negotiations before he or she was actually selected for the position, usually at the end of a lengthy search process.

The timing involved put extra pressure on the potential new president and on counsel, since once a candidate is selected, the school and its Board of Trustees are customarily eager, often precipitously so, to reach definitive contract terms and announce the appointment of the new president.

Human nature being what it is, it did not seem to matter that the search process had taken many months, sometimes a full year or more, before the Board made its final selection. Now the heat was on to conclude all of the (sometimes complicated) contractual arrangements and let the world know the identity, background and qualifications of the school’s next leader.

Obviously, this timing also shortened, sometimes fatally, the amount of time the new president had to locate competent, experienced counsel to represent them in their contract negotiations. More than once we were called in later, after the fact, and presented with an inadequate presidential contract which was already signed, having been “reviewed” by “the lawyer who did my will” or “the lawyer who handled my house closing.” As someone said, “Act in haste, repent in leisure,” or, more simply, “sorrow tomorrow.”

Of course, more sophisticated presidential candidates refused to be rushed, but the timing still added an element of unnecessary stress to the decision to accept a new senior leadership position which required detailed agreement on terms, and, often, a substantial geographical move of an entire family.

Recently however, we have been pleased to see that we are being contacted by candidates for a university presidency or head of school who have been told only that they are one of two, three or even more “finalists” for a given position.

These candidates are looking to line up an executive employment attorney experienced in academic matters to represent them “if I am chosen for the position.”

This preemptive search for appropriate counsel allows the potential new candidate adequate, unhurried time to line up counsel fully familiar with executive employment contracts in an academic setting.

Moreover, the potential candidate can share with counsel the candidate’s personal information, needs and individual concerns well before the “heat is on” and the actual selection of the candidate triggers the subsequent contract negotiations. For us, as counsel, this means that we can be fully “up to speed” at the very beginning of such negotiations. We have found this an invaluable assistance to getting the best deal possible for our clients.

On the part of the prospective president or head of school, a more leisurely chance to assess the credentials and experience of the counsel who will be representing them almost always pays big dividends as well.

There is no downside to this. In the event that our potential client is not, in fact, selected as the Board’s initial hiring preference, connecting with counsel is still valuable, even if our engagement is deferred. There is always another top job on the horizon (occasionally even the same job); having adequate counsel “waiting in the wings” is never a mistake.

Alternatively, if our client does get the position, the time which they otherwise would spend finding and retaining a qualified lawyer can far better be devoted to diving into consideration and the actual negotiation of the contract terms.

This practice of locating and engaging counsel before a candidate has been selected for a particular presidential position has, within only the past two years, become a commonplace occurrence rather than a rarity in our academic legal world.

Indeed, these days it is not uncommon for us to be retained in advance at any given time by half a dozen potential candidates who have learned that they are among a small handful of “finalists” for a top job in academic employment. Many of these candidates receive an actual offer; a few do not, but then go on to the next search. Either way, however, they are not caught or stranded without adequate representation at the beginning of tense and fast-paced contract negotiations, the outcome of which will contribute meaningfully to the candidate’s ultimate success or failure in the new job.

Our next written piece will take up one or two more emerging trends in this area.

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.