Conflict of Interest – Part 5

PASSHE Chief Counsel and University Counsel

The Commonwealth Attorney’s Act of 1980 not only created the Office of General Council (OGC), it also created an office of “Chief Counsel” at each of thirty four (34) state agencies, including PASSHE.

In addition to a Chief Counsel, who provides legal advice to the PASSHE Board of Governors and the Office of the Chancellor, there is also an Office of University Counsel with ten (10) additional attorneys, who: a) work together to provide legal services for each of the 14 PASSHE universities; b) are paid out of the University budgets; but c) who report to the General Counsel in the Governor’s Office and, ultimately, to the Governor.

The OGC website describes itself, in part, as follows:

“The representation that the Office of General Counsel provides is unlike any found in the private sector.  We represent the Commonwealth of Pennsylvania, the Governor, members of the Cabinet, and the executive and independent agencies that manage the business of the Commonwealth.”

Note from the above description that, while the OGC purports to represent all of the entities separated by commas in the above list, the truth is different and more interesting than that. 

For example, in a dispute between the Commonwealth and the Governor, OGC will represent the Commonwealth. In a dispute between the Governor and a Cabinet Member, the OGC will represent the Governor.  And in a dispute between one of the agencies and the entities above them, the OGC will represent the entities above the agencies.

That same hierarchical arrangement also continues down and through all the agencies receiving legal representation from the OGC, including PASSHE.

A little reflection on this legal pyramid arrangement reveals that OGC representation is a good thing for those relatively higher in the hierarchy, but not so good for those relatively lower in the hierarchy.

The legal profession, through the American Bar Association Canons of Professional Ethics, acknowledges the pitfalls associated with adverse influences and conflicting interests that could arise as a result of the above arrangement, and offers the following remedy for their avoidance in Canon 6, in part, as follows:

“It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.” (Emphasis added.)

During my twenty years as president of California University of Pennsylvania (Cal U), I had numerous opportunities to interact with several different PASSHE Chief Counsels and several different University Counsels and, with very few exceptions, those interactions were helpful, professional and even cordial.

But in one of those exceptions, for which an obvious conflict of interest clearly existed, the University Counsel in question never once sought my consent nor provided me with a full disclosure of the facts.

And until recently, when I stumbled across a PASSHE document I had never seen before, did I realize that a cynical and systematic deception was being practiced by Chief Counsels and University Counsels within the PASSHE system.  The document’s title is “The Role of Legal Counsel Within the Pennsylvania State System of Higher Education, I.E., Who is the Client?” and contains these quotes:   

“When the interests of parts of the corporation conflict, the attorney owes his/her duty to the highest authority within the corporate structure. The duty of loyalty will permit nothing less.”

“As a result of the hierarchical structure that represents State System governance, there are times when the client may become confused as to the role of Legal Counsel, especially in situations when one or more bodies may appear to have conflicting interests.” (Emphasis added.)

A Cynical and Systematic Deception

I can vividly recall having been a “confused client” from time to time, as described in the underlined phrase in the above quote.  But unlike then, I now know the source of that confusion—it was the fact that at no time during my 20 years as a PASSHE university president, involving countless interactions with PASSHE attorneys, did any chief counsel or university counsel ever: a) provide a full disclosure of the facts, and b) seek my express consent to be represented under those terms, as required by Canon 6.

Even more remarkable than the cynical quality of this ethical failure, is its systematic tenacity.  During my 20-year tenure (1992-2012), PASSHE presidents were never given copies of the legal document “Who is the Client?” quoted above; and my tenure as president overlapped the tenures of three chancellors, five governors and numerous general counsels, chief counsels and university counsels; and yet the same legal practices involving divided loyalties and conflicts of interest have continued without change for 20 years.