Johns Hopkins Gazette: August 21, 1995

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

     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

     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

     "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

     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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