The Effective Use of School District Legal Counsel

Public school districts operate in a complex legal context.  The actions of school boards and school district officials must comply with a wide array of local, state and federal laws, rules and regulations.  School districts, school boards, and school district officials retain lawyers and law firms for a variety of reasons.  This Legal Update will review the legal bases for the attorney-client relationship between school districts and their legal counsel, as well as identify some considerations a Wisconsin public school district should consider when selecting legal counsel.

Legal Authority to Retain School District Counsel.  Wis. Stat. § 118.001 establishes the broad powers of Wisconsin public school boards. This statute provides as follows:

The statutory duties and powers of school boards shall be broadly construed to authorize any school board action that is within the comprehensive meaning of the terms of the duties and powers, if the action is not prohibited by the laws of the federal government or of this state.

Wis. Stat. § 120.13(9m) explains that the “school board of a common or union high school district may do all things reasonable to promote the cause of education, including establishing, providing and improving school district programs, functions and activities for the benefit of pupils, and including all of the following:…Legal services.  Retain an attorney or attorneys to represent the board or school district in any action or proceeding brought for or against the board or district and provide for any other legal service for the welfare of the school district.”  With regard to unified school districts, Wis. Stat. § 120.44 provides as follows:

(1) A unified school district is a body corporate with the power to sue and be sued, to levy and collect taxes, to acquire, hold and dispose of property and to do all other things reasonable for the performance of its functions in operating a system of public education.

(2) The public schools of a unified school district shall be under the management, control and supervision of a school board.  The school board shall have the powers and duties of the school board and annual meeting in a common school district.  The officers of a unified school district have the powers and duties of the officers of a common school district…

School District Counsel Selection.  Most public school districts in the State of Wisconsin (and around the country) have an established relationship with one or more attorneys in one or more law firms.  There is no law governing the method by which a school district selects and retains legal counsel.  The process is most often governed by policy. 

In some school districts, the policy simply confirms the authority of the school board to retain legal counsel and the officials who have the approval to contact school district counsel to request advice and/or representation.  Often, the policy will remind those involved in the relationship that the school district counsel acts as legal counsel for the District and the Board, as opposed to an individual school district official, such as a Board member or the Superintendent.  In a handful of school districts, the policy identifies a request for proposals process that the school district must use periodically to solicit bids from qualified law firms and attorneys.  A small number of school districts hire in-house legal counsel, so those school districts use the hiring process to establish a relationship with their school district attorney.

Qualifications and Characteristics of an Effective School District Legal Counsel.  When selecting an attorney or law firm to retain as school district counsel, it is advisable for school district officials to consider the following factors:

1. Personality and style. Every attorney has a different approach to the practice of law. You should feel comfortable that your school district counsel reflects and supports your school district.
2. Experience. Because of the complex nature of school district legal issues, your school district attorney (or his/her firm) should have familiarity and prior involvement with the legal issues arising in a public school district.
3. Knowledge. Your school district attorney should have an understanding of the various laws and regulations, governing public school districts in Wisconsin, and the resources available to develop and attain new information on a regular basis.
4. Cost. Your school district attorney should be affordable and efficient. Your school district attorney should recognize the limits and constraints on school district budgets and funding when establishing their rates, fees, and policies.
5. Accessibility. Your school district attorney should be available to you and reachable, especially when you are dealing with a crisis or an urgent situation.
6. Breadth of service. Often, you will want your school district attorney or his/her law firm to be able to provide you with legal support with regard to a variety of legal issues, including labor and employment matters, student and special education matters, open government matters, and more.  However, some school districts utilize more than one attorney and/or law firm to ensure that all of the school district’s legal needs are supported.
7. Conflicts of interest. You will want to be sure your attorney or his/her law firm is not regularly unable to assist your school district due to conflicts of interest based on their representation of other school districts, other municipalities, or other clients, generally.

Wisconsin education or school law is a unique practice area.  There are developments and nuances that attorneys, who do not regularly practice in this area, will not know or understand.  School districts should work with attorneys and law firms with experience and expertise in this area, such as any of the 90+ attorneys who are members of the Wisconsin School Attorneys Association (WSAA), an organization with membership limited to individual attorneys serving as legal counsel for school district members of the Wisconsin Association of School Boards (WASB).

Relationship with School District Counsel. Many school boards consider their school attorney to be an important part of the school district’s management structure.  Typically, school attorneys are involved in as many preventative activities with the school district, as they are involved in responsive activities.  Usually, the school board president and the school district administrator/superintendent monitor and regulate the interactions between the school district officials and staff and the school attorney.

Attorney Client Privilege.  Wis. Stat. § 905.03 establishes the attorney-client privilege in Wisconsin, which is generally described as “a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.”  The attorney-client privilege protection applies to both verbal and written communications, including emails and text messages.  Records protected by the attorney-client privilege tend to contain legal analysis or sensitive factual information that if disclosed to third-parties could impair a school district’s ability to prevail in litigation. 

The law contemplates that a client may be a public entity.  Indeed, the definition of client includes:

…a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

When the client is a public entity, such as a public school district, it is important to remember that the school district counsel represents the entity, even though the school district counsel works directly with the school district’s agents, such as the school board members, the superintendent, and other district administrators.  To the extent that any of these agents have a dispute with or are adverse to the school district, the school district counsel’s duty for purposes of representation and the privilege would be held by the entity, not the individual.

Insurance Appointed Counsel.  Sometimes legal counsel is appointed by the school district’s insurance carrier for a special circumstance, such as a worker’s compensation claim, an employment discrimination claim, and other lawsuits brought against the school district for which the school district has insurance coverage.  In order to determine whether the school district is entitled to appointed counsel and, if so, whether the district is permitted to choose its appointed counsel, it is important to review how the school district’s insurance policy addresses issues of coverage for liability and coverage for legal defense.

The relationship with insurance appointed counsel is a “tripartite” relationship involving the following three (3) parties: (1) the insurance company that issues the liability insurance policy; (2) the insured against whom a claim is filed that is covered under the insurance policy; and (3) the attorney hired by the insurance company to defend the claim and represent the aligned interest of the insurer and insured.  These relationships are creatures of contract.  The relationship between an insurer and a defense attorney arises from two (2) separate, yet interrelated, contractual relationships.  The first contract is the insurance policy between the insurer and the insured.  The second contract is the retainer agreement between the insurer and the defense attorney.

When a lawsuit or other covered claim is filed, it is advisable for the school district officials to review the applicable insurance policy and decide whether to request the appointment of a particular attorney, which could be the school district’s general legal counsel or another litigator with whom the school district is familiar and comfortable for purposes of the specific matter.

Conclusion.  The relationship between the school district and school district’s legal counsel is important to the success of the school district.  There are laws and regulations that govern the operation of the school district, the relationship between the school district and its employees, the treatment of students (which includes regular education and special education matters), the use of the school district’s property and facilities, taxation and other financial concerns, issues involving public records and open meetings, and the election of school board members, and this is only the tip of the iceberg.  On a regular basis, school districts must respond to complaints, lawsuits, records requests (including public records and personnel records), claims, investigations, and inquiries.  School districts are parties to contracts and agreements with employees, insurance companies, independent contractors, vendors, bus companies, other government entities, parents, CESA, local organizations and others.  School district officials must conduct and attend meetings and hearings, including but not limited to, regular school board meetings, annual meetings, pupil expulsion hearings, employee discipline and termination hearings, IEP meetings, and worker’s compensation hearings.  School districts must prepare and publish notices, policies, handbooks, codes of conduct, athletic codes, and other important documents and records.  It is imperative that the school board and school district officials are comfortable that the school district’s legal counsel is the right fit for its needs.