Conflict Over Conflicts

October 6, 2008, 7:45 a.m.

Conflicts About Conflicts of Interest
While the world evaluates our $1.3 trillion transfer of wealth from the middle class to the wealthy --

(along with the law's built-in earmarks for rum and wooden arrow heads) by depressing the value of global stock exchanges by about 5% (and trillions of dollars), we learn there are over 750,000 Americans who lost their jobs so far this year, 80% of Americans think they will be adversely affected economically, the British and American generals are telling us there cannot be a military "victory" in Afghanistan, voters watched the vice presidential candidates' debate like NASCAR fans watching for a crash that never happens

-- meanwhile, Marc Mills remains in the news with the petition for his reinstatement and two Iowa City lawyers duking it out over Stolar's charges of Mills' "conflict of interest."

David Roston, "Pinpointing Mills' conflict of interest," Iowa City Press-Citizen, September 27, 2008

Mark Schantz, "Refuting Mills' 'conflict of interest,'" Iowa City Press-Citizen, October 4, 2008.

David Roston is the former chairman of the Chicago Bar Association Committee on Professional Responsibility. Mark Schantz was the University of Iowa's general counsel from 1992 to 2005.

David Roston wrote, "His [Marc Mills] responsibility was to protect the legal interests of the AD [Athletic Director/Department] and the university by assuring compliance with law and insulating it from liability. If Mills had made that responsibility clear to the student-athlete and her family, they would have known right off the bat that he was not going to protect their interests in this matter and that they should not rely on his help."

Mark Schantz responds, "Roston indicates that an attorney for the university should, when speaking with persons such as the student athlete's father, advise them that he is the university's attorney, not theirs. Mills did so, a fact about which there appears to be no dispute. Insofar as Roston implies otherwise, he is mistaken."

Roston charges, "Mills' failure to advise the Iowa state Board of Regents of the letter from the student-athlete's mother is analogous to the general counsel of a corporation failing to advise its board of directors of facts concerning an issue which it has decided to investigate. . . . The regents were his client, and it appears that he failed to provide them with important information because he thought that he had an obligation to the student-athlete and her family."

Schantz responds,

"[I]n the eyes of Iowa law, the Board of Regents exists separate and apart from the universities it governs. Chapter 13 of the Iowa Code makes completely clear that the attorney general of Iowa is the regents' lawyer. The board, therefore, is not the "client" of the university general counsel.

In the 13 years I served as university counsel, I recall no occasion when the board considered me to be its lawyer. . . .

Once it is understood that the regents were not Mills' client, the matter of whether and by whom the regents should have been advised concerning the critical letters from the student-athlete's mother takes on quite different coloration.

The Iowa Code is quite clear that the regents govern the institution by and through the president of each university. As a practical matter, the president directs regents communication downward to university officers and communication from university officers upward to the regents. I would not have made any official communications to the Board of Regents without the president's knowledge and approval. Nor, I am sure, did Marc Mills.

Roston also charges, "His [Mills'] responsibility was to protect the legal interests of the . . . university by assuring compliance with law and insulating it from liability."

Schantz responds,

Roston's final error, which also is reflected in the Stolar Report, is his misconception that the sole function of university counsel is to "insulate (the University) from liability."

University policies, however, reflect a variety of university interests, often described in rather general language, and university lawyers regularly are involved in trying to reconcile or balance the different interests reflected in those policies.

The university wishes, for example, to encourage victims of sexual assault to report such events and . . . also wishes to ensure that students accused of sexual assault are provided a fair hearing . . .. Balancing those competing interests is part of a lawyer's job, and it is not primarily about preventing liability. The fact that a large entity frequently pursues different interests does not mean its lawyer has a "conflict."

I cannot know, and won't speculate, why David Roston would have written what he did. From my own perspective, Mark Schantz clearly has the more persuasive analysis.

But this is more than just a "he-said-he-said."

As Schantz concludes, "Accusing an Iowa lawyer of 'conflict of interest' is to accuse one of violations of the Iowa Rules of Professional Responsibility. Such allegations are defamatory and actionable if false, as I believe I have shown they are, with respect to Marc Mills."

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