2:160-Exhibit-Checklist for Selecting a Board Attorney

Exhibit - Checklist for Selecting a Board Attorney

The School Board selects and retains the Board Attorney(s). The Board may use this checklist for

guidance when it selects and retains attorney(s) and/or law firms for legal services. This checklist is

designed for the Board to use a request for proposal (RFP) process to seek outside attorneys/law

firms, but it can be adapted for an application process, if the Board seeks an in- house attorney. For

more information, call the IASB Office of General Counsel; see its current phone numbers at

www.iasb.com/whatis/staff.cfm.

Determine what type of legal services the District needs.

1. Review Board policy 2:160, Board Attorney. Note: Critically analyze whether the District’s

legal needs are best served by in-house attorney(s) or outside attorney(s)/law firms. Many

districts use a combination of these services. Many districts also use multiple attorney(s)/law

firms for their specialties, e.g., different law firms for bond counsel, special education, or

labor law. This checklist is designed for the Board to use a request for proposal (RFP) process

to seek outside attorney(s)/law firms, but it can be adapted for an application process, which

would better fit if the Board seeks an in-house attorney.

2. Consider the following factors to analyze the type(s) of legal services needed for the District

including, but are not limited to:

• District’s size;

• Any past and current experiences with legal matters;

• Complexity of the District’s legal needs;

• Availability of expertise; and

• Cost of outside fees compared to internal staff expenses for an in-house arrangement.

Develop a list of qualifications necessary for providing quality legal services to the District.

1. Review policy 4:60, Purchases and Contracts. Note: While State law exempts hiring an

attorney from bidding requirements (105 ILCS 10-20.21(a)), the Board may want to review

its procurement processes and align contracts for legal services to its non-bidding-related

standards for purchases, e.g., avoiding favoritism, staying within the District’s budget, etc.

2. Develop the list of qualifications. The major qualifications include, but are not limited to:

• Licensed to practice law in Illinois and in good standing with the Illinois Attorney

Registration and Disciplinary Commission (ARDC) (see checklist item Conduct a

reference check and other background investigations, below)

• Member of the District’s assigned United States district court and the Seventh Circuit

Court of Appeals

• Substantive knowledge and experience in the legal areas matching District’s needs, e.g.,

bidding, civil rights, collective bargaining, education reform, employment law, Freedom

of Information Act, Open Meetings Act, other records laws, special education, student

rights, etc. Note: This list of knowledge and experience must be created by the District’s

identified needs and may change from time to time.

• Experience in all aspects of contract, employment, and school law

• Experience that meets the District’s needs, including litigation experience in State and

federal courts

• Membership in professional associations, such as, the Illinois Council of School

Attorneys (ICSA) and education law sections of bar associations, etc.

• Demonstrated knowledge of and ability to apply professional responsibility rules

• Accessibility for the District’s identified needs, e.g., evening Board meetings, phone

calls, etc.

• Ability to declare that representation of the District will be to the exclusion of all other

clients having potential conflicts with the District’s interests

• When additional qualifications apply, list those qualifications for providing legal

services. This may include specialties such as bond counsel, etc.

Develop the RFP.

1. Insert the list of qualifications that the Board developed.

2. Include the following information:

• The deadline for responses to be submitted

• The location (address or email) where responses should be sent

• A statement that the Board is soliciting proposals from qualified lawyers and law firms to

provide legal services to the School District

• Significant information about the District. See Board policy 1:30, School District

Philosophy, for the District’s mission statement that is specific to the community’s goals.

• The scope of work, e.g., “The Board Attorney will provide legal advice concerning

[typical duties, specific duties, excluded duties].”

• Qualifications

• Details about interviews and presentations

3. Specify what responders must include in their responses, such as the following:

• Cover letter, complete name, address, and legal structure (if the responder is a law firm)

• The individuals who prepared the response, including their titles

• If different from above, the identity of and directory information for the individuals who

have authority to answer questions regarding the submitted proposal

• A proposed fee schedule, e.g., “Respondents may combine set fees and hourly fees. If

hourly fees are proposed, please provide the minimum time increment for billing

purposes. If a retainer agreement is proposed, please specifically describe options.”

• A summary of the responder’s relevant experience representing public schools

• A writing sample

• An assurance that the responder meets the RFP’s qualifications

• References including current or past clients

Announce the RFP.

1. Title the announcement. Note: How and where the RFP is announced are at the Board’s sole

discretion. The Board may want to announce the RFP during an open meeting, post it on the

District’s website, mail it to local law firms, and/or place it in the local newspaper(s) or other

legal publications. A directory of those lawyers belonging to the Council of School Attorneys

(ICSA) is on the IASB website, www.iasb.com. A printed copy is available upon request.

Inclusion in the directory does not represent an IASB endorsement. Some attorneys who

practice school law do not belong to ICSA. Other online sources, such as the Illinois State

Bar Association, also maintain directories of information about attorneys. The Board may

want to title the announcement “The [Insert District’s name] School Board Requests

Proposals to Provide Legal Services.”

2. Announce that the Board seeks an attorney or law firm to serve as its Board Attorney.

3. Inform the reader that the attorney or law firm selected will serve from the date of

appointment to [date]. The length of the appointment is at the Board’s discretion.

4. State the School District’s philosophy or mission statement.

5. Insert the RFP location and contact information with the beginning date and time.

6. Tell prospective responders that completed RFPs must be returned [by certain time and date]

to [name and title of person receiving applications].

Receive and manage responses to the RFP.

1. Review policy 2:110, Qualifications, Term, and Duties of Board Officers. The Board

President is a logical officer to accept the applications, but this task may be delegated to the

Secretary or Superintendent’s secretary if the Board determines that it is more convenient.

Who accepts applications is at the Board’s sole discretion and should be decided by the Board

prior to posting the RFP announcement

2. The Board will discuss, at an open meeting, its process to review the applications and who

will contact RFP responders for an interview.

3. The designated person will contact RFP responders for interviews.

Develop interview questions.

1. Interview questions are at the Board’s discretion.

2. A prospective attorney or law firm to fill the Board Attorney position may raise other specific

issues that the Board will want to cover during an interview.

3. The following non-exhaustive list of interview questions may help the Board tailor its

questions toward finding an attorney or law firm with an approach to the role of the Board

Attorney that the Board desires:

• What do you see as your role as Board Attorney?

• How many other school districts do you currently represent?

• What kind of legal services do you provide to your school clients? Please explain how

your other experience is relevant to this position.

• How many years of experience does your firm (or, the attorney) have? How long have

you been practicing law? How long have you been representing school districts?

• What methods will you use to ensure all members of the Board, which is your client,

remain informed? See the discussion about the Ill. Professional Rules of Conduct in f/n 2

of policy 2:160, Board Attorney.

• How would you manage a situation in which the Board feels strongly about its position

but you believe that position is not legally supportable? The Ill. Rules of Professional

Conduct, at www.illinoiscourts.gov/supremecourt/rules/art_viii/default_new.asp, require

attorneys to represent the Board in its capacity as the governing body for the District. The

responders should be discussing these rules, specifically Rule 1.7 (Conflict of Interest:

Current Clients) and Rule 1.13 (Organization as Client), among others, in their answers to

this question. See also, PRESS policy 2:160, Board Attorney.

• How would you manage a situation in which the Board’s interest may be or become

adverse to one or more of its members? See the discussion about the Ill. Professional

Rules of Conduct in f/n 2 of policy 2:160, Board Attorney.

• How would you manage a situation in which the Board and Superintendent are in

conflict? How about a divided Board? See the discussion about the Ill. Professional Rules

of Conduct in f/n 2 of policy 2:160, Board Attorney.

• If the Board did something that you had advised against, could you still defend the

Board’s action? See the discussion about the Ill. Professional Rules of Conduct in f/n 2 of

policy 2:160, Board Attorney.

• Will you try to shape Board decisions or do you have a whatever the Board decides

philosophy? See the discussion about the Ill. Professional Rules of Conduct in f/n 2 of

policy 2:160, Board Attorney.

• Do you give clients specific recommendations or do you advise them of the available

options and let the client decide? See the discussion about the Ill. Professional Rules of

Conduct in f/n 2 of policy 2:160, Board Attorney.

• Do you provide your school Board clients with any updating services gratis?

• How do you keep your Board clients apprised of litigation and other legal matters you are

handling for them?

• Will you be handling this business personally (i.e., will you delegate to your associates or

partners)?

• Can anyone else in your firm handle our inquiries when you are unavailable?

• How do you keep current on school law?

• When do you tell your school clients to contact you regarding a matter with possible legal

repercussions?

• Have you represented a school district in a matter involving the rights of disabled

students? …involving disabled employees? ... involving a student expulsion? …

involving a teacher dismissal? … involving an employee's contract or dismissal? …

involving a building contract or bidding matter? … Can you tell us about that case?

• How do you bill? How are you to be paid? Please explain your rates and/or fees. The

subject of billing should cover whether the attorney or law firm prepares a budget for

representation and its method for billing in detail, including the date and time, what work

was performed, and who worked on the project, along with expenses.

• Did you bring a written agreement for legal services or a retainer agreement? If yes,

please review it for us now. If not, please explain the options for a written agreement for

legal services.

Develop an interview protocol. Interviews may occur in closed session pursuant to 5 ILCS

120/2(c)(1).

1. The Board President will lead the Board as it interviews responders to its RFP (see 105 ILCS

5/10-13 stating that the Board President presides at all meetings and Board policy 2:110,

Qualifications, Term, and Duties of Board Officers.

2. The Board may also want to consider allowing an equal amount of time for each interview.

3. Discuss the following items with each responder during the interview:

• Introduce Board members to the responder.

• Describe the Board’s interview process, selection process, and ask the responder if he or

she has questions about the Board’s process for selecting its attorney.

• Describe the District’s philosophy or mission statement.

• Describe the Board Attorney position by reviewing the RFP.

• Begin asking the interview questions. (See Develop interview questions, above).

• Ask the responder whether he or she has any questions for the Board.

• Thank the responder and inform him or her when the Board expects to make its decision

and how the responder will be contacted regarding the Board’s decision.

Conduct a reference check and other background investigation(s).

1. The Board President may perform this check or direct the Superintendent to:

• Check the ARDC’s master roll of attorneys as “Authorized to Practice Law.” To do this,

enter the attorney’s name into the ARDC’s registration and public disciplinary records

database at: www.iardc.org/lawyersearch.asp.

• Click on the attorney’s name to review whether any disciplinary actions are pending or

resolved; current and prior actions will appear at the bottom of the screen.

• If disciplinary actions are listed, ask the attorney or law firm for more information.

2. There are other online attorney review services available. These services may be overly

subjective and/or the attorney may have control over the content in these services. Always

check with the ARDC.

3. Call references provided by the responder.

Enter into a written contract with the selected attorney or law firm.

1. All agreements for legal services should be in writing. At minimum, the agreement should

provide the fee arrangement and the scope of services. Agreements for legal services and

individual billing statements form the Board Attorney are subject to disclosure pursuant to a

Freedom of Information Act request (PAC-14-002).

2. Discuss the fee arrangements with the responder and decide:

• Whether to enter into a fee arrangement or a retainer agreement. Note: Attorneys

typically bill by a pre-determined percentage of the hour, e.g., in one-tenth of an hour

increments. Many districts enter into a retainer agreement for legal services that requires

them to pay the attorney a pre-determined fee every month. In return, the attorney

provides a pre-determined amount of legal services whenever the district needs him or

her. Districts find this useful because (1) they can budget for legal expenses, (2) legal

advice is available up to the pre-determined amount for lower fees, and (3) this

arrangement often provides for an enhanced, long-term relationship with the attorney.

• The appropriate scope of services.

3. Review the written contract (Agreement for Legal Services) for these provisions:

• Fee arrangement.

• Scope of services.

• Who will be providing legal services?

• A statement that the Board controls all legal decisions.

• A statement that the attorney and his or her law firm have no conflicts of interest or, if a

conflict exists, that the Board understands the conflict and waives it.

• Board’s right to terminate the services of the attorney and law firm at any time for any

reason.

4. Approve the Agreement for Legal Services during an open Board meeting.

Announce the appointment to District staff and community.

1. The contents of the announcement and length of time it is displayed are at the Board’s sole

discretion.

2. The Board may want to consider announcing during an open meeting. See Board policy 8:10,

Connection with the Community.

3. The Board may want to include the following information in its announcement:

• The Board appointed [attorney’s name or law firm name] as the Board Attorney.

• The appointment will begin on [date] for [length of time].

• The Board previously established qualifications for the Board Attorney in a careful and

thoughtful manner. [Attorney or law firm’s name] meets these qualifications and has

demonstrated the willingness to accept its duties and responsibilities. [Attorney or law

firm’s name] brings a clear understanding of the demands and expectations of the Board

Attorney position along with a constructive attitude toward the challenge.

Adopted: September 23, 2019

Exhibit - Checklist for Selecting a Board Attorney