5 Pieces of Advice for Lawyers Trying to Scare Educators Who Think Outside The Ban

Unattributed, The Innovative Educator, Sept 25, 2010
Commentary by Stephen Downes

If a lawyer tells you something is allowed, and you end up getting sued, the lawyer takes the criticism, even if you are in the right. Consequently, they lawyer is motivated to advice you not on the basis of whether you are in the legal right, but rather on the basis of what may or may not get you sued. This has established a creep over the years, one that is accelerating, as the rights of those who sue (read: rich or corporate) expand into the rights of those at risk of being sued (read: individuals, schools and institutions, small corporate). So how do you deal with advice from lawyers that is in the best interest of the lawyer, but over;y conservative and in the long term harmful to you?

This post takes a stab at an answer. I'm not completely happy with the solution, but some of the advice is sound. Ask the lawyers to put it in writing, for one thing, and explain to them that their liability extends both ways: that it's bad advice not only if the school ends up being sued, but also if the school provides an unnecessarily poor education as a result of the advice. But really, from my experience, the best advice is to keep the lawyers out of it wherever possible, and if advice is sought, to request it on the narrowest possible grounds. And ask, not how to mitigate risk (that's not the lawyer's decision) but how to best respond when a risk condition (such as being sued) is triggered.

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