On Administration: Hopkins Law: General Counsels' Job Never Boring Lisa Libowitz -------------------------- Special to The Gazette Estelle Fishbein and Fred DeKuyper have been with the Office of General Counsel since its beginning 20 years ago. In two decades of increasing litigation, government intervention and university-business interaction, one aspect of the job of university attorney has remained unchanged, they say: It's never boring. University law may not carry the same opportunities for national publicity as the OJ Simpson case, but it does have its made-for-television moments just the same. Consider one lawsuit filed a few years back: "There was a man in California who believed we had a brain-wave modification machine staffed 24 hours a day," said DeKuyper, a Hopkins associate general counsel. "This machine allegedly was sending electronic emissions to the West Coast. These emissions, he said, were entering his left ear and doing harm to him." Eventually, the case was dismissed. "I realized later I should have said, 'You're right, there is such a machine--but it's at Harvard,'" he added, laughing. DeKuyper began his career at Hopkins in 1967 as an administrator. Back then, Hopkins referred all legal questions to a local attorney on retainer. But in 1973, the administration asked him to write a paper on whether the university should have an attorney on campus. At the time, DeKuyper found, there were 632 lawyers serving American colleges and universities, many from outside firms. Yet even then, universities could predict a future of soaring lawsuits and troublesome government intrusion. He recommended the university hire its own attorney. Two years later, the university hired Fishbein, who had served as special assistant attorney general for the University of Maryland for seven years. She now serves as the university's vice president and general counsel. DeKuyper became assistant (later associate) general counsel, and the office was born. Today, there are more than 3,000 members of the National Association of College and University Attorneys; two-thirds of them are in-house lawyers. Fishbein served as the first female president of the organization in 1980-81. Every major research university has its own legal office. Currently, the office has six full-time attorneys, a paralegal and three staff members. Even so, "the office is small compared to our peer institutions," DeKuyper said. About half of the office's time is devoted to litigation, managed by associate general counsel Derek Savage, and the other half to a variety of issues concerning faculty, staff and student problems, commercial matters and government regulation. (The office does not handle medical liability claims or patent infringement lawsuits. Both the Hopkins Hospital and the Applied Physics Laboratory have their own legal staffs.) Both DeKuyper and Fishbein stressed "preventive law" as the key to the office's success. "We're available around the clock to any faculty or staff member who needs legal advice." As a result, DeKuyper said he believes Hopkins faces less litigation than other universities. Fishbein agreed, adding, "I think the work of the university is too important to do our jobs any other way. No member of the administration or faculty should feel he has to wait to call between nine and five if advice is needed on an important legal problem." When those calls do come, they can be about almost anything: scientific fraud, denial of admission to an applicant, discrimination, hazardous waste and environment laws, indirect costs, contract negotiations, sexual harassment. Or a long list of other subjects. More and more frequently, however, the calls concern a federal agency's review of an administrative decision. "I can't think of any area now where we aren't subject to government regulation," Fishbein said. "Anytime anyone wants to challenge an academic or administrative decision, there is some federal agency they can turn to, no matter how frivolous their claim. "It's an overwhelming burden for nonprofits and educational institutions. Of the discrimination complaints we've received, for example, 98 to 99 percent have been shown to be frivolous." Yet even the frivolous lawsuits and complaints cost universities time and money. "We always try to be cooperative with government investigators, but it's a frustratingly long exercise--and at times the attention to trivia defies common sense." Consider what might indelicately be called "the jock-strap saga": More than three years ago, due to an anonymous complaint, the federal Office of Civil Rights notified the university it planned to conduct an investigation into whether Hopkins discriminates against female athletes. Such discrimination would violate federal law. The university responded promptly, demonstrating that in every instance of athletic interest by women, Hopkins has responded by establishing a varsity sport. The university also pointed out a history and continuing practice of program expansion for women. Countless hours were spent responding to requests for interviews and filling out forms and surveys with no final ruling from the government. Investigators even went so far as to spend nearly five hours counting jock straps, sports bras, shirts, socks, even old shoes and spikes that had been boxed up to be given away, despite the fact that the agency's own manual directs its investigators not to do this. Fishbein sent a letter of strong protest to the U.S. Department of Education in February, demanding an end to the investigation but has yet to get a response. An area in which the Office of General Counsel has seen increased activity in recent years is technology transfer. With new and growing opportunities for the transfer of the university's intellectual property to the marketplace, the complexity of the legal work also has grown as issues of stock ownership, royalties and sponsored research agreements are negotiated. In early August, Fishbein and DeKuyper celebrated the office's 20th anniversary with an office lunch. DeKuyper said he arrived that day to find the office festooned with balloons and signs reading "20 years and still going strong." "Attorneys who do this work invariably like it and stay with it," he said. Only one Hopkins attorney has ever left; she departed when her husband took a job in another city. "I think I have the best law job in the state of Maryland," Fishbein said.
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