Selecting and Managing Outside Legal Counsel

Legal Brief

DUE TO BUDGET RESTRAINTS, the county board of education, responsible for 51,000 students in a central Florida school district, could not justify the expense of maintaining a full-time, in-house, legal team. Instead, the board relied upon the county attorney’s office to represent them and the district.

When the board turned to the county attorney for legal help, the job usually fell to one of the younger attorneys on staff with little or no education law experience. When a lawsuit was filed against the board in federal court over alleged violations of the Individuals with Disabilities Education Act, the county attorney candidly admitted the case was beyond the expertise of any of his staff attorneys, himself included.

His advice: Hire an outside law firm.

While the county attorney presumed he would be the one to select outside counsel, the school board had other plans. Each member had either a friend, relative or campaign supporter who was vetted to take on the case. The superintendent, meanwhile, advised the board to generate a formal request for qualifications and to hold open, public interviews with prospective attorneys to select someone with a proven track record of litigating IDEA claims.

Her suggestions fell on deaf ears, and in the end, the board chair convinced his colleagues to hire a politically connected attorney — a decision that led to disastrous results.

Selection Protocol

The primary reason for seeking outside counsel is to obtain expertise and experience in a specialized body of law when in-house or retained outside counsel lacks the sufficient mastery, and when the entity does not wish to retain permanently. Consequently, the selection of outside counsel is a process that must include the superintendent. Not only are you selecting someone with a certain level of legal experience and acumen but also someone in whom you can have complete trust and confidence.

One of the more successful methods for obtaining a pool of qualified candidates is through the request for quotation bidding process, or RFQ, during which interested attorneys or law firms are invited to submit their qualifications and experience in a particular field of law, thus yielding a viable pool of prospective applicants.

Once an attorney is selected, the superintendent ought to serve as a liaison between the board and the attorney, instructing the attorney in the structure, function, key players and culture of the school district, as well as the facts of the case being litigated.

Likewise, the superintendent can best ensure that outside counsel is serving in the capacity of the school board’s attorney (as compared to the county’s attorney), regardless of who is picking up the tab for legal fees and costs.

A Matter of Fit

While hiring someone with the requisite legal expertise is of paramount importance, you also want to ensure the successful applicant is well-versed in your state’s open records and open government laws.

The ideal candidate should demonstrate the ability to provide high-level legal services, while operating in a political environment and in full view of the public and news media. In other words, you want to select an attorney who is politically savvy, albeit apolitical, and who possesses a willingness to minimize the attorney’s fees and costs that ultimately will be borne by taxpayers.

In the event a law firm is chosen to represent the board, be certain to identify the attorney in the firm who will be assigned to the case. You don’t want to be put in a situation where the firm assigns someone who doesn’t meet your legal needs, lacks acute active listening skills and doesn’t fit into the culture of the environment within which she or he will be expected to practice.

The selection of outside counsel need not be a mysterious, arduous process, provided the superintendent is part of the selection team and the attorney selected has the requisite legal skills, abilities and demeanor to zealously and professionally represent the school board.

Education law requires practitioners to master a large volume of substantive law that is constantly in a state of flux. You don’t want to squander public money by hiring someone who engages in on-the-job training at your expense.


JOSEPH JARRET, a former school board attorney and a state mediator, is a lecturer in political science at the University of Tennessee in Knoxville, Tenn.