What is a General Counsel?
The General Counsel represents the Colleges in all legal matters and serves as the institution’s chief legal officer. In this capacity the General Counsel serves several functions including providing advice and counsel to the president, senior staff and management, and Board; advising on the legal ramifications of policy-making, policy interpretation, and other institutional decision-making; and, serving as a member of senior staff supporting all of the Colleges’ initiatives and operations. The General Counsel also performs traditional functions associated with in-house counsel to members of the Colleges’ community acting in their official capacity. These functions and services may include contract negotiation and review, advice on human resource matters, counseling in relevant state, federal and local laws and regulations, real estate matters, general liability issues, and other strategic advice.
Is the Colleges’ General Counsel your personal lawyer?
No. The General Counsel represents the Colleges, meaning its duly authorized employees, agents, and officers acting in their official capacity. The General Counsel does not represent any person individually.
What if I receive a subpoena or other legal action or notice?
Employees should direct all process servers or messengers delivering legal documents to the General Counsel or Associate Vice President for Campus Safety. If someone attempts to serve you with court papers or other legal documents such as subpoenas, legal notices, summons and/or complaints, they should be directed to the General Counsel or AVP for Campus Safety. Employees are not authorized to accept any legal documents on behalf of the Colleges and are not obligated to do so. Questions should be directed to the General Counsel.
What if I want to report activity that is in violation of the Colleges’ policies or the law?
The Colleges Whistleblower Policy (the “Policy”) is intended to encourage and enable employees and others to raise concerns within the Colleges prior to seeking resolution outside the institution. The Colleges expect their employees to carry out their duties and responsibilities in compliance with the law, regulations, policies and procedures. This includes conflict of interest pursuant to the Conflicts of Interest Policy. The Whistleblower Policy outlines procedures to assist and encourage individuals to come forward. Retaliation is prohibited, but reports may be made anonymously. Reports must be made in good faith and upon reasonable belief.
Are conversations with the General Counsel “privileged” or “confidential”?
Where an employee is acting in their official capacity, information related to the representation is kept strictly confidential among only decisional officers and involved personnel.
Information or exchanges—written or otherwise—relating to giving and receiving legal advice might under certain circumstances also be deemed “privileged” by a court. Information that is privileged is not discoverable in a court of law. In other words, a court cannot compel disclosure of this information. Whether exchanges are privileged should be considered on a case-by-case basis in light of the circumstances.
Use of Outside Counsel
Outside counsel is engaged at the discretion of the General Counsel and may only be retained by the General Counsel. Work performed by outside counsel is delegated by and performed under the supervision of the General Counsel.
What do I do if I am drafting or trying to change institutional policies or procedures?
Policies at the Colleges emanate from several areas within our system of shared governance including the board of trustees, senior administration, and the faculty. The Colleges’ Vice President and General Counsel engages in the review, issuance, and archiving of all Colleges’ policies. If you are embarking on a policy development project you should engage the General Counsel for advice and guidance at the outset of the project.
Can I sign a contract on behalf of the Colleges?
In order to sign a contract and legally bind the Colleges an individual must be duly authorized. Contracts in excess of ten-thousand dollars are to be signed by the Chief Financial Officer. Contracts under that amount are to be signed by the appropriate institutional Vice President, the Provost, or their designee. The Colleges are in the process of formalizing a policy to assist in adding continued clarity to this process. Contracts in any circumstance should be reviewed by the General Counsel prior to committing the institution.
What if my course material is found on a sharing website such as CourseHero?
Certain sharing websites specialize in the uploading, sharing or selling of academic works and teaching materials. Examples of such websites include Course Hero, StudyBlue or OneClass. As an instructor, and pursuant to Hobart and William Smith’s Policy on Intellectual Property, “Scholarship Materials” and “Teaching Materials” created by you belong to you. These materials might include but not be limited to: lectures, lecture notes, lecture slides, educational articles, activities, assignments, and other materials detailed in the policy. Materials such as these can be distributed outside the class or posted on publicly accessible internet sites only if you have given copyright permission. On the other hand, student created, non-verbatim notes of course lectures are acceptable to share because they are created by students in their own words. Instructors are encouraged to remind students that course materials created by you are protected under copyright laws and the Colleges’ policies and require your permission to redistribute or to post online.
If you find your teaching materials on a course sharing website, you must notify the internet service provider (ISP) in writing that content on their website is in violation of copyright (an ISP is the company that hosts the website, such as Comcast or Verizon). Course Hero provides information on how you can submit a request to have materials taken down on their website. The Digital Millenium Copyright Act (DMCA) also provides a process for copyright owners to send a “take down notice” to ISP’s to formally request that their intellectual property be removed from the website. Once a DMCA request has been submitted, the ISP is required by law to take the content down. As long as they do, and in a timely manner, ISPs are generally free from legal consequences. If the course sharing website is located in another country, such as OneClass, which is hosted on a Canadian server, they are not required to take down the materials without a court order, though they may choose to do so without one.
To have your course materials taken down from a U.S. server, DMCA Section 512(c)(3)(i)-(vi) provides six “elements of notification” that must be included in your take down notice, which are summarized below. You should refer to Section 512(c)(3) to make sure that you have included sufficient detail in all six pieces of information to ensure your request will be enforceable.
The six elements required in a DMCA take down notice include:
- A written notification signed by the copyright owner. If you send it by email, include a digital signature by typing “/s/” and then your name at the end of the notice.
2. Your full name and contact information (email, address and/or phone number).
3. A description, name, or title of the copyrighted materials. A DMCA request only applies to material you created and are the copyright owner. It does not apply to third party materials that are part of your course.
4. A link to the website(s) where you want your materials taken down – the specific URL(s) that are using your content. Attach copies of images (screenshots) or text to assist the ISP in locating your material.
5. A statement of ownership of the content (how it belongs to you and how it was stolen).
6. A statement under penalty of perjury that you are telling the truth, that the information provided is accurate to the best of your knowledge, and that you are in fact the authorized copyright owner or authorized to act on behalf of the copyright owner.
If the material is not removed after a DMCA take down notice has been sent, you could follow up with a Cease and Desist letter, or contact the Office of the General Counsel.
This FAQ borrows in substantive part with permission from, and gratitude to, the Office of General Counsel at Middlebury College.