Senior Counsel's Office
In its fourth year in fiscal year 2003, the Senior Counsel's Office is fully engaged in representing the Institute and providing comprehensive legal services and counseling on MIT matters, in all areas across the administration and the academy, other than intellectual property. We also arrange for and manage outside legal services when needed. Our office includes MIT's senior counsel, Jamie Lewis Keith, and three additional experienced attorneys, contracts counsel, Margaret Brill; litigation and risk management counsel, Mark DiVincenzo; and environmental counsel, Dan Winograd. We are always available as problem solvers and thinking partners for our clients. We strive to be enablers, helping MIT faculty and staff to accomplish their objectives and to make informed decisions. Our office also brings the lessons learned from litigation, other disputes, and major business transactions back to the MIT community through counseling and education. These lessons support management and faculty initiatives to minimize and avoid those reputational, financial, operational, and legal risks that can be appropriately managed, while still achieving MIT's core mission.
Our office's expertise includes structuring, negotiating, and documenting major research and other collaborations and transactions in collaboration with the Office of Sponsored Programs (OSP) and departments, labs and centers (DLCs); export controls; privacy and information requests; contracts; litigation; mediation; investigations; employment and student issues; affirmative action; real estate and corporate law, environmental health and safety laws and permitting; and insurance and risk management issues.
Highlights
Working closely with MIT's president, provost, and vice president for research and associate provost, as well as the director of OSP, the senior counsel represented MIT over the past year, and continues to represent MIT, in the establishment of the Eli and Edythe L. Broad Institute, an MIT interdepartmental center focused on genome research. This undertaking is a major focus of MIT's research mission. It involved the negotiation of a $100 million gift agreement entered into by MIT with the Eli and Edythe L. Broad Foundation to fund the establishment of the Broad Institute and a Memorandum of Understanding for a collaboration agreement entered into by MIT, the Whitehead Institute, and Harvard University that will enable these institutions and the Harvard-affiliated hospitals to collaborate in the establishment of the Broad Institute. The senior counsel continues to represent MIT in the ongoing process to negotiate a final Collaboration Agreement and a Transfer Agreement that will transfer the $100 million genome research program, with its assets, awards, researchers, and other personnel from the Whitehead Institute to the Broad Institute at MIT. In these transactions, the senior counsel also works with the controller, staff of the Provost's Office, and colleagues in Human Resources and other areas. Contracts counsel is representing MIT in related subleases of space for the Broad Institute, and litigation and risk management counsel is representing MIT in related employment issues.
In another major undertaking of the last year, the senior counsel represented MIT on its amicus brief for the US Supreme Court in the University of Michigan Law School and undergraduate admissions cases, to demonstrate that student body diversity is a compelling interest for science and engineering higher education and for the nation. DuPont, IBM, Stanford University, the National Academy of Sciences, and the National Academy of Engineering joined MIT's brief, and the senior counsel worked with outside counsel at Jones Day in preparing the brief. The senior counsel, with the litigation and risk management counsel, also represented MIT in the ongoing investigation by the Department of Education, Office of Civil Rights, of two of MIT's renowned minority summer programs to ensure that MIT can preserve the long-standing goals and accomplishments of the programs while also complying with applicable law. They continue to advise MIT on a range of affirmative action issues.
The senior counsel continues to represent MIT on post-September 11, 2001 matters. She represented MIT in a group of principal counsels from Ivy Plus institutions on the impact of post-September 11 laws and governmental policies and regulations (on research, immigration, export controls, and environmental controls) on our institutions. She also participated on a Council on Governmental Relations Task Force on Bioterrorism. The senior counsel and litigation and risk management counsel also supported the International Scholars and Students offices in their legal issues under immigration laws that broadly affect MIT, including SEVIS (Student Exchange Visitor Information System) compliance.
The senior counsel worked with OSP and MIT's senior officers on a number of export control issues affecting research at MIT and by MIT researchers abroad. She continued to work with the MIT's senior officers, the Media Lab and other DLCs, along with the director of OSP, on complex international research endeavors.
The senior counsel and environmental counsel continued to represent MIT in implementing its consent decree with the US Environmental Protection Agency (EPA) and the Justice Department settling a major enforcement action arising from a May 1998 inspection of MIT's campus.
The senior counsel and contracts counsel represented the provost and vice president for research on a long-term lease for the new Institute for Soldier Nanotechnologies and Biological Engineering Division. Contracts counsel also represented MIT in agreements relating to major MIT construction projects in the city of Cambridge. She began to work on a new effort that brings MIT into a closer relationship with the MBTA Urban Green Project as it develops and implements plans affecting the MIT campus.
Contracts counsel also represented MIT in its ongoing compliance program under the federal Gramm-Leach-Bliley Act, which governs how MIT gathers and protects certain types of personal financial information. This involved a review of programs and activities of a wide range of departments at MIT, both academic and administrative, and identification of activities covered by the Act's safeguarding rule. MIT met the May 23, 2003 deadline for adopting a written information security program and other safeguarding requirements.
Litigation and risk management counsel worked closely with MIT's outside counsel and senior officers on several major litigation matters, and counseled clients across the Institute to prepare them for the litigation process.
The senior counsel and litigation and risk management counsel worked closely with the provost, chancellor, and deans on their development of a new MIT Travel Risk Policy to address heightened safety and health risks, such as SARS, when members of the MIT community travel abroad. They continue to be involved in implementation.
litigation and risk management counsel worked with the senior counsel and conferred with leaders across the Institute to review litigation trends and management initiatives of the past several years.
Litigation and risk management counsel also worked with an internal MIT Medical committee charged to implement a compliance program under the HIPAA (Health Insurance Portability and Accountability Act) and supported the committee's successful efforts to meet the federal government's April 2003 deadline.
Scope of Services
The scope of clients served and matters handled by the Senior Counsel's Office in FY2003 spans nearly all academic and administrative departments. The range of requests reflects the complex and wide-ranging endeavors of the Institute as well as a growing awareness by DLCs that the Senior Counsel's Office is their resource for legal advice. Included are:
- The president, provost, chancellor, executive vice president, DLCs, and OSP on international and other complex research collaboration agreements
- Senior officers and DLCs on export controls laws, with OSP (which administers such controls)
- The chancellor and deans of student life on comprehensive management of high-profile litigation related to students, including direct involvement in discovery responses and witness preparation around recent cases
- Many DLCs on training for supervisors in employment issues on topics of discrimination, sexual harassment, managing personnel policy disputes, and how to be a good supervisor, in collaboration with MIT's Human Resources and Ombuds offices
- Many DLCs, by representing MIT at federal, state, and local employment and civil rights-related administrative hearings and forums, and advising Human Resources and DLCs on a wide variety of discrete employee issues and separation from employment issues
- The president, chancellor, provost, and deans on affirmative action issues
- The chancellor and deans for Undergraduate Education, Student Life, Graduate Students, Science, Engineering, Architecture, and the Sloan School, regarding issues of student conduct and discipline, Family Educational Rights and Privacy Act issues, government investigations, risk management issues, contracts for services and events, employment issues, the Lemelson apprenticeship, and litigation
- All of MIT on legal process and government investigations (receiving and responding to complaints and subpoenas and managing government investigations)
- The Department of Facilities on contracts and permitting for capital projects and campus renovations, and representing MIT in negotiations with Cambridge around construction operations, long-term property rights and maintenance agreements and other pending construction by the City on or near MIT property
- Controllers' Office, Sloan Student Financial Services, and Student Financial Services on loan programs and related contracts as well as debt collection and payment plan documents and tuition assistance plan
- Dining Services, the Family Resource Center, and the Department of Athletics on campus-wide dining and catering, childcare and facilities service contracts, including services provided by a management company to the new Zesiger Center, and negotiations with a regional school district to renew and enlarge our commitment to a childcare center in Lexington, serving MIT Lincoln Laboratory and other MIT personnel
- Information Systems on a cooperative contract negotiation, including Harvard and Boston universities, with a communications company allowing MIT and other universities to connect into a larger telecommunications ring, offering improved service to on- and off-campus properties, and involving contract, policy, and free speech issues
- The Card Office on contracts for the expanded use of MIT's debit card, including online banking and merchant agreements
- The Alumni Association, Community Services Office, and MIT Travel Office on contracts for services and events, dispute resolution and litigation with outside vendors, and advice on traveling abroad
- Lincoln Laboratory on employment matters, security issues, contract and state procurement, and real estate law issues
- The Real Estate Office and Endicott House on employment issues, real estate transactions, land-use and environmental permitting, environmental due diligence, and indemnifications and litigation
- Sloan School, other DLCs, Real Estate Office, Endicott House, Sponsored Programs, on business-related disputes
- The Committee on Discipline and Dean for Student Life Office on process and policy compliance (student complaints)
- The Coordinated Conflict Management System Committee, charged with an overhaul of the informal and formal complaint handling systems that apply to students and employees, following a Presidential task force's recommendation, on legal and procedural aspects
- News Office on a variety of legal issues
- Provost, vice president for research, DLCs, and the Audit Division on employee performance and discipline issues, including internal investigations
- Task Force on Emergency Preparedness and Response
- Sloan Student Activities Task Force
- Bates Linear Accelerator, Athletics, Facilities, and Sailing Pavilion on environment, health and safety compliance
- Campus Police on community, privacy, criminal law, and security issues
- Department of Athletics, Student Life, Dining Services, Facilities, Office of Government and Community Relations, and other departments concerning permits, licenses, and other public approvals.
Controlling Legal Costs
The Senior Counsel's Office manages MIT's outside legal services funding. In FY2003, the office continued its initiative to account for and report on legal expenditures across the Institute. Legal costs can fluctuate from year to year for a number of reasons, including unanticipated litigation and other events, more or less efficient use of inside and outside counsel, rising outside fees, and significant increases or decreases in programs. FY2000 was the first year of implementation of this cost tracking, and FY2002 was the first year of full staffing in the office, creating greater capacity to provide in-house services.
The litigation, contract, and environmental lawyers in the Senior Counsel's Office track their time on work that would have been sent to outside firms if the office did not exist, such as work on capital projects, legal work on major policies, MCAD and other agency discrimination claims, prelitigation disputes and litigation, government investigations, and major contracts. In-house counsel total compensation is converted into hourly rates and compared with going rates for the same work of outside firms to determine savings.
Inside rates have been reduced from FY2002 to FY2003 to reflect greater hours worked, while outside rates have increased 30.67 percent. The hourly cost differential is at least $150 per hour. At the same time, actual outside billings are down by $730,000 in FY2003 as compared with FY2002 (and by $1,254,000 in FY2003 as compared with FY2000). The Institute's billings from its primary firms have been on a steady decline over the last three years (except on extraordinary litigation), as the Senior Counsel's Office has done more work in-house. The Senior Counsel's Office now represents the entire Institute, both administration and academy, on a very wide range of matters.
The Senior Counsel's Office saved MIT $1,900,000 on legal costs (avoided costs plus reduced billings) in FY2003 and clearly has enabled MIT to control costs in the face of steeply increasing outside firm billing rates and extraordinary events (such as September 11); international collaborations; major affirmative action challenges; etc.