Going to School

Robert Donin, general counsel of Dartmouth College, first became an in-house lawyer for a university 22 years ago following stints with the federal government and a Washington, D.C. law firm. Donin, a 1974 graduate of the University of Pennsylvania Law School, recently took time out of his schedule to talk about his career as a university lawyer, how issues in higher education are evolving, and the daily challenges he faces as an in-house attorney.

Q. You went to Harvard University’s office of general counsel in 1984. Why was leaving private practice, taking a pay cut and moving to Boston attractive to you?

Donin: I wasn’t looking for a new job when I heard about the Harvard position, but the more I learned about it, the more intrigued I became. Law firm practice is very specialized – even more so now – whereas university lawyers dealt with a broad range of issues. I found this remarkable.

Q. What was the biggest difference in being at Harvard?

Donin: The biggest change practicing at Harvard – like most in-house departments – was the ongoing relationship with colleagues and clients. There is less handling of discrete matters and more interaction.

Q. Did being part of a newly expanded department present challenges?

Donin: We had to prove our worth. We worked hard at client relations, getting administrators and faculty to feel comfortable using us instead of outside counsel, and being confident that we could represent the college capably.

I started out as a litigator, trying employment and other kinds of cases. But over time I increasingly handled the other types of matters university lawyers need to know about, such as commercial transactions, construction, and copyright and publishing for Harvard University Press. We also worked on student records privacy, campus security, affirmative action, and regulatory compliance issues, like the Campus Security Act.

Q. How did the general counsel position at Dartmouth come about?

Donin: After 16 years at Harvard, I applied because I wanted to run my own shop.

Q. Did you need to make changes when you took over?

Donin: I hired two lawyers – Ellen Arnold – a land-use and environmental lawyer from McLane, Graf, Raulerson & Middleton, and Kevin O’Leary – a labor and employment lawyer from Cummings & Lockwood. Besides continuing to work in those practice areas, they’ve also had to become generalists, like everyone in our business. Since representing a college requires working in about 30 practice areas, we have to develop keen judgment about when to use outside counsel. For example, we send all our ERISA work out, but do most environmental work inside.

Q. Have the issues facing higher education changed?

Donin: The biggest change is the increasing emphasis on compliance and accountability. Today, colleges and universities are less likely to be exempted from statutes and regulations. For example, initially universities were exempted from the age discrimination statute – then Congress amended it to include higher education. There is a general increase in the amount of governmental regulation – exports controls, medical-records privacy, and the environment – areas where universities used to get a pass. Most of Sarbanes-Oxley doesn’t apply to non-profits, but people expect us to follow the similar business ethics principles.

Freedom of expression will probably always be on our agenda because it can involve a difficult balancing of interests.

Affirmative action continues to be an issue even though the Supreme Court essentially decided a couple of years ago, in the University of Michigan admissions case, that a university could consider minority status as a plus factor to obtain the educational benefits of a diverse student body, as long as it is done without a quota. We have to be sure that our programs comply with that ruling.

National Security, immigration, and concerns relating to privacy are more pressing. Students and employees want their personal information protected. Intellectual property has also become much more important.

Q. Are colleges and universities acting more like businesses?

Donin: Yes, in a couple of ways. The management of these institutions is much more professional than it was even 10 years ago. Also, especially at the larger research universities, individual faculty members have become more entrepreneurial, so there is more university/faculty-business interaction. At Dartmouth, we recently launched a business ethics help line and a new office – the Dartmouth Entrepreneurial Network – for people interested in starting businesses.

Q. Does this new business orientation create new areas of concern?

Donin: Yes. We have to be mindful of the potential for conflict of interest. Society holds universities in high regard largely because it has confidence in our objectivity and scholarship. We have to protect that, while enabling our faculty to use their knowledge for public benefit.

Q. What have you found different about being general counsel?

Donin: The change has enabled me to work more closely with the president and board of trustees and increased my appreciation of the daunting burdens borne by college presidents today. The president is the chief executive officer and has to function as financial manager, spokesperson, fundraiser, and community leader. He is accountable to faculty, staff, students, alumni, surrounding community, and parents, as well as local, state, and federal regulators. It is a huge job.

Our job is to deliver first-rate, timely legal services. But in higher education legal advice is only one ingredient in a decision that will be influenced by a lot of other factors and people. We never skew advice to push policy in a particular direction – we present the law objectively and leave the ultimate decision to policymakers.

Jane Sender is president of Sender Legal Search, which specializes in high level in-house placements in New England. She can be reached at www.jslegalsearch.com.