THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
OFFICE OF THE GENERAL COUNSEL
AN OVERVIEW
The Bylaws of The Regents provide:
The General Counsel and Vice President for Legal Affairs, who shall also be an Officer of the University, shall be the chief legal officer of the University; shall have general charge of all legal matters pertaining to the Corporation and the University; shall attend meetings of the Board and its Committees; shall represent the Corporation in all legal proceedings; shall advise the Corporation, its Committees and Officers, the President of the University, University Officers, and Officers of the Academic Senate on legal questions as may be required; and shall, subject to the direction of the President of the University, oversee the provision of all legal services to the University. (Regents' Bylaw 21.2)
The history of an internal attorneys' office within the University dates from 1954. Prior to that time, legal services for the University were provided by retained counsel. The title Counsel of The Regents was established in 1877. The first attorney to hold that position was Henry H. Haight, who had signed the Organic Act creating the University of California while Governor of the State in 1868. John U. Calkins, Jr., held the position of Attorney for The Regents from 1923 to 1955. In 1954, Mr. Calkins, accompanied by Ashley H. Conard and John E. Landon, withdrew from his San Francisco law firm and established the Office of Attorney for The Regents within the University.
The following year, Mr. Calkins retired and was succeeded by Thomas J. Cunningham, then a Judge of the Los Angeles Superior Court, who upon assuming office became the first General Counsel of The Regents. Mr. Cunningham retired in 1973 after having presided over the legal affairs of the University in a period marked by rapid growth and development of new campuses. During his tenure, the number of attorneys in the office increased from three to fifteen. Donald L. Reidhaar held the position of General Counsel from July 1, 1973, until his death in December 1985. Then-Deputy General Counsel, James E. Holst became acting General Counsel, and subsequently General Counsel in June 1986. He served through June 2006. Jeffrey A. Blair, an attorney in the General Counsel's Office served as Acting General Counsel until the appointment of Charles Robinson, who became General Counsel in January 2007. Mr. Robinson had been the General Counsel of the California Independent System Operator.
The Office of the General Counsel is now the equivalent of a medium-sized law firm providing, with certain exceptions discussed below, a full range of legal services to the entire University consisting of ten campuses, five medical schools and teaching hospitals, management or co-management of three major research laboratories, and over 150,000 employees.
Within its general responsibility for University legal matters, the General Counsel's Office is responsible for all litigation affecting the University. Such activity, including formal administrative hearings before the Public Employment Relations Board and other federal and state agencies, internal University hearings, and matters handled through arbitration processes, accounts for approximately one-third of the total effort of the office. The bulk of the work of the office is in such activities as conferring with University administrators and faculty on University policies and practices, providing drafting services, participating in claims resolution generally, informing University officials of current legal developments, participating in University seminars and training sessions, and furnishing opinions. Emphasis is on preventive law.
In limited areas, specialized legal services are provided to the University through outside counsel. These areas are as follows:
Insurance Claims. Outside counsel, through the University's general liability, medical malpractice and worker's compensation self-insurance programs, provide the defense for some tort claims involving the University. These include medical malpractice claims, other personal injuries, property damage claims, claims of defamation, and the like. Some such cases also involve contract claims or requests for equitable relief. In those cases, the General Counsel's office and retained outside counsel work cooperatively in the defense of the action.
Patent Prosecution. The University retains patent counsel for securing patents on inventions conceived by University personnel. The General Counsel's office provides legal services on patent-related matters such as licensing agreements.
Antitrust Claims. Although the California Attorney General does not normally represent the University (indeed, the Attorney General and the General Counsel are sometimes on the opposite sides of litigation), by agreement with that office, its antitrust division represents the University along with the state and public agencies generally in civil antitrust cases. The General Counsel's office provides coordinating services in those areas.
Bond Counsel. Investors require the opinion of recognized bond counsel in connection with purchasing University bonds issued to finance student housing, parking facilities, and student unions. The San Francisco firm of Orrick, Herrington & Sutcliffe serves as bond counsel to the University. The Office of the General Counsel provides all other legal services in connection with University financing transactions.
Associated Counsel. The General Counsel associates outside counsel in connection with prosecuting or defending individual cases. This authority is used for cases where there is a need for special expertise or additional personnel beyond the immediate resources of the General Counsel's Office. In each such case, the office remains involved through the assignment of one or more attorneys to work with associated counsel. Also, from time to time it is necessary to associate out-of-state or foreign counsel in connection with legal proceedings affecting the University in courts of other states or countries.
The General Counsel is a principal officer of The Regents. The General Counsel attends and participates in all meetings of The Regents and reports at each meeting to the Committee on Finance on current legal issues and significant developments in litigation. From time to time, the General Counsel seeks authorization from the Board with respect to initiation and settlement of litigation. In addition, the Board may on occasion be called upon for a policy decision on litigation or possible litigation. In other circumstances, the General Counsel acts pursuant to his general charge with respect to University legal matters or specifically delegated authority.
Determinations as to positions to be taken by the University in litigation where the University is a defendant is usually a matter of defending, on the facts and the law, the University policies or practices in question. If there is any question about the University's policy position on the subject matter of the suit, consultation with the administration is undertaken before proceeding with the defense. If in the course of investigation of the case it appears that there may be significant vulnerability to the claim, the matter is reviewed with administrative officials and, if deemed appropriate, settlement is recommended. Also, if it appears that there is a need for improving practices or policies called into question in the litigation, appropriate recommendations are made to the administration.
The office is organized on the basis of eight sections: (1) commercial transactions, (2) educational affairs/public law, (3) health law, (4) employment and labor relations, (5) environmental law, (6) technology transfer (7) litigation and (8) construction. Although responsibility for litigation is concentrated in the litigation section, attorneys from other sections are regularly assigned to litigation related to their subject area responsibility.
Although the major portion of the legal services required by the University is provided by the Office of the General Counsel in Oakland, the General Counsel has also authorized local counsel positions. There are resident counsel at Livermore and Lawrence Berkeley National Laboratories, all of the medical centers other than San Diego, and all of the campuses with the exception of Santa Barbara, Santa Cruz and Merced.
Attorneys within the office are members of the National Association of College and University attorneys (NACUA), an organization encompassing approximately 650 institutional members. NACUA is an excellent means of keeping informed of current legal developments pertaining to colleges and universities, not only through its publications and annual conferences, but also through contacts with counterparts at other universities. Attorneys in the office are encouraged to participate in continuing education programs including, in particular, those presented by Continuing Education of the Bar (CEB), which is a joint University-State Bar of California program.
The mission of the Office of the General Counsel is, in short, to act as legal counsel for the multifaceted institution, which is the University of California. Although the ultimate client is the corporate entity, The Regents of the University of California, all University officials are, in reality, the clients of the office. In carrying out its work, the office seeks to be alert to legal risks presented by proposed courses of action while being sensitive to the responsibility of the University administration to determine what level of legal risk is ultimately acceptable. Moreover, the office emphasizes the need for innovation and creativity in assisting University managers in developing new and useful approaches to the issues and opportunities confronting the institution. To this end, emphasis is placed on early involvement in emerging issues and activities. The objective is to provide legal services of a quality commensurate with the University's commitment to excellence in all of its activities.