Who this is for. Anyone who just got a notice and needs advice. What you will get: how to find counsel, what it costs, what to do if you cannot afford a lawyer this week, and questions to ask in the first meeting.
You have the letter. It names an office, a policy, and a date for an interview. Somewhere in it, probably in the second paragraph, is a sentence saying you may bring an advisor, who may be a lawyer.
You do not have a lawyer. You have never needed one for anything harder than a closing or a will. You are not sure whether you need one now, what kind, who would take your call on a Thursday night, or how you would pay for it.
This chapter answers those questions in order. Who is and is not on your side. Which kinds of lawyer exist and what each is for. What the advisor in your letter actually is. What it costs and where the money comes from. How to sit across from a lawyer you have never met and work out, in forty-five minutes, whether to trust him with the next two years of your life.
One principle runs underneath all of it. The decisions that matter most in these cases are made early, often before anyone has looked at the evidence. The cheapest time to have a lawyer is before you need one. The most expensive time is after you have already talked.
Nobody in the Building Is Your Lawyer
Start with the people you will meet first, because some of them will be kind to you, and kindness is easy to mistake for representation.
The university has lawyers. They may sit in an office of general counsel, or the university may hire an outside firm for your matter. Either way, they represent the university. The professional rules most states have adopted say this in plain terms: a lawyer retained by an organization represents the organization.[1] Do not assume you are personally their client because you have worked there for years or dealt with them on university business. Ask expressly who is represented and obtain independent advice when your interests may differ.
Those same rules require the university's lawyer, when the university's interests are adverse to yours, to explain who the client is.[2] The commentary goes further: the lawyer should tell you that he cannot represent you, that you may want your own counsel, and that what you say to him may not be privileged.[3] Lawyers call this an Upjohn warning, after the Supreme Court case that shaped it. If you hear some version of it, do not treat it as a formality. Take the distinction seriously before discussing the substance.
The Title IX coordinator is not your lawyer. Neither is the investigator, whether a staff member or someone from an outside firm. Neither is anyone in human resources (HR), employee relations, the provost's office, or the dean of students. Under the current Title IX grievance rules (Introduction, The Legal Baseline), the people who run a formal Title IX process must be trained to serve impartially and must not be biased for or against respondents.[4] The rules also put the burden of gathering evidence on the university, not on you,[5] and require a presumption that you are not responsible until the process concludes.[6]
Those are real protections. Read them carefully, because they describe neutrality, not advocacy. An impartial investigator is not on the complainant's side. They are not on yours either. Their job is to collect what you say and write it down. What they write becomes evidence, and it will be read later by people who never met you.
The practical rule is short. Anything you say to anyone employed by the university about the allegation, in a meeting, a hallway, or an email, may end up in the file. Say nothing about the substance until you have someone in your corner whose only client is you.
Four Kinds of Lawyer
"Get a lawyer" is advice with a missing word. Lawyers specialize, and the specialties that touch your situation do not overlap as much as you would expect. A lawyer who is excellent in one can be dangerous in another, because he will not know what he does not know.
Criminal defense. If the police have contacted you, if they might, or if what you are accused of would be a crime if it happened as described, this is the first call. Not the second. A criminal defense lawyer decides whether and how you speak to anyone, anywhere, because statements travel. Chapter 4 explains how. This book does not cover criminal defense strategy, and you should not take it from anyone who is not your criminal lawyer.
Title IX and student-conduct counsel. Lawyers who handle campus processes, sometimes under the label education law. They know the regulations, the investigation stages, and the hearing. That last part matters more than most people realize. Under the 2020 rule, cross-examination at a postsecondary Title IX hearing is conducted by your advisor, never by you personally.[7] Ask about the advisor’s experience with the hearing procedure and questioning witnesses. Chapter 10 covers hearings in detail.
Employment counsel. For faculty and staff. The campus process may decide whether you did something; your contract, the faculty handbook, a collective-bargaining agreement, and state and federal employment law decide what the university can do to you about it, and how. A Title IX lawyer may not know your handbook's dismissal-for-cause procedure. An employment lawyer may never have cross-examined a complainant. You may need both.
Academic-freedom and tenure counsel. A subset of employment law, practiced by lawyers who represent faculty specifically. Relevant when tenure, a dismissal hearing before a faculty committee, or questions of academic freedom are in play.
Others sit at the edge of the map. International students and visa-sponsored employees may need immigration counsel. Physicians, nurses, psychologists, and other licensed clinicians may need counsel who knows their licensing board. If this ends in a lawsuit, that is civil litigation, which the companion volume, Respondent in Court, covers.
You are not going to hire five lawyers. What you need is one lawyer who is clearly in charge, who knows which specialties your case touches, and who will bring in or coordinate with the others. Ask every lawyer you interview the same question: who is running this, and how will you work with my other counsel? The worst outcome is two competent lawyers who never speak, each advising you to do something reasonable in his own forum that hurts you in the other.
Timing matters too. The 2020 regulations allow a university to delay a Title IX process or extend its deadlines for good cause, and they name concurrent law enforcement activity as an example.[8] Allow is not the same as require. Whether to ask for a delay, and how, is a judgment call for counsel. It is not one to make yourself in an email to the Title IX office.