In today’s litigious society it isn’t uncommon for university professors and staff to be sued along with their university employer.  You can be {and oftentimes are} sued not only as an employee of the university, but also individually in the suit brought against the university.  Also, quite often, when this happens, the university in-house counsel, the university outside counsel retained specifically for this lawsuit, or the Assistant Attorney General {in the case of state institutions} will often assure you that they will represent your interests in the lawsuit, all free of charge to you.  Should you always heed their assurances that you need not worry – and thus not retain your own counsel to look out for your own interests?  Unfortunately the answer is: not always.  Legally your interests may actual vary, or be at odds with, the university’s legal position – and it is ultimately up to you to decide if you need your own legal representation looking out only for your best interests since, as I have pointed out your legal goals, and those of your employer may actually be quite different.

Let me give you a practical suggestion to help you figure out this conundrum:  whoever your employer {university} has provided you as your legal representative, ask {in writing} her or him to answer if there are any legal conflicts between the lawyer representing you, and the university.  Insist on a written response to your written question.  Our lawyer ethics rules require that a lawyer inform you of the potential for any conflict that may exist when representing both your employer and you.  Those same requirements insist that if a conflict may exist the lawyer is to inform you just what it is so that you can decide if you need separate representation.  Again, ask this question about the possibility of any potential conflicts in writing, and also insist that the lawyers response to you be in writing as well {this makes certain that everyone has a good memory about what you are told}.  This, and only this, will best help you assess whether you need your own representation.  Take the {conflicts} answer to a lawyer of your choosing {hopefully someone with Higher Education Law experience} and see if your lawyer agrees with what your employer’s lawyer has written you about either that no conflict exists, or the extent of any possible conflicts.

Conflicts issues are often complex and very “in the weeds” and are often all about the law under which the suit has been brought.  What you don’t want to {unpleasantly} discover – sometimes way too late – is that this lawyer who you thought was protecting your interests – is suddenly {and quite unexpectedly} pressuring you to admit to something that you did not do to get your employer off the hook in the lawsuit!  Or, worse, that lawyer presumes you would agree to a settlement that actually implicates wrongdoing on your part to get the suit settled for the university and settles it without your express permission.  This is not a happy ending for you.

These conflicts issues are thorny ones that are not usually well explored by professors or staff for one simple reason: they don’t want to spend the money on their own lawyer and  instead want to rely on their employer’s representation that they will be fully protected for free.  But, don’t be fooled, what seems too good to be true – often is too good to be true!  People: there are no free lunches!  And just because you got sued along with your employer {and in your estimation did absolutely nothing to deserve getting sued}, doesn’t necessarily mean that you ought to believe what you are told {“free representation” might just equal a lesson learned that may indeed be quite costly}.  Caveat Emptor!  Even when the “purchase price” is zero!