FAQs About the Office of Legal Affairs and Legal Issues You May Encounter

GENERAL QUESTIONS

  1. 1. Can the Office of Legal Affairs represent me in a personal matter?
  2. 2. Can someone in the Office of Legal Affairs act as a notary for me? 
  3. 3. I would like to report something I've seen at UD that just doesn't seem right.  Is there a place I can report it anonymously?
  4. 4. Can you explain my obligations or rights under FERPA?
  5. 5. I want to use material that I believe may be copyrighted.  Can the Office of Legal Affairs let me know if I can use it?
  6. 6. Can I ask anyone with a law degree on campus for legal advice about my work at the University of Dayton?

DEFINITIONS

  1. 7.  What is “Affirmative Action?”
  2. 8.  What is attorney-client privilege?
  3. 9.  What is “attorney work product?"
  4. 10.  What is “electronic discovery?”
  5. 11.  What is a “litigation hold?”
  6. 12.  What is "preponderance of evidence?"

QUESTIONS RELATING TO CONTRACTS

  1. 13. In my work for the University, I would like to enter into a contract that would bind the University.  Am I authorized to sign the contract?  Does a lawyer need to review the contract?
  2. 14. I have authority to sign certain contracts on behalf of the University, but I understand I may be able to further delegate that authority.  How do I do that?

INVESTIGATIONS / CONTACTS FROM OUTSIDE COUNSEL OR ENTITIES

  1. 15.  What do I do if I receive a request to be interviewed as part of an investigation, case or threatened case, or I receive a request for documents or information?
  2. 16.  What should I do if an attorney not representing the University contacts me and asks for information about the University?
  3. 17.  What do I do if I get served with a subpoena relative to my work for the University?

STUDENT MATTERS

  1. 18.  I teach a course that includes fieldwork off-campus.  Should students sign any type of release before participating in off-campus activities like this?
  2. 19.  I'm a student who was accused of a crime but the prosecutor decided not to press charges.  Yet I am still being charged through the University's student conduct system.  How?
  3. 20.  I am a University faculty member or staff member who supervises a student employee who may access confidential information.  What should I do to make sure the student handles that information appropriately?

1.  Can the Office of Legal Affairs represent me in a personal matter?

The Office of Legal Affairs does not represent individual faculty or staff members in personal legal matters outside the scope of their work for the University; that is, this office represents only the interests of the institution of the University of Dayton.   Additionally, this office does not provide personal legal services to students of the University.  If you are in need of personal legal representation, the Dayton Bar Association offers a lawyer referral service; you can contact them at 937.222.6102 or visit their website.   [Top of page]

2.  Can someone in the Office of Legal Affairs act as a notary for me? 

If you are a University employee and are in need of a notary in your business for the University (that is, as part of your UD job), yes, a notary in the Office of Legal Affairs can notarize your document(s).  Please call ahead to ensure a notary will be available when you wish to have your document(s) notarized.  Please note:  If you are in need of a notary for a personal reason -- such as because of custody issues, a car or home purchase, etc. -- the Office of Legal Affairs would be glad to try to assist you on that front, but their obligations for the University must take precedence.  If a notary in the Office of Legal Affairs is not able to provide notary services on a personal matter as quickly as you would like, you may wish to check with your personal bank to see if its personnel can help you out on that front.  [Top of page]

3.  I would like to report something I've seen at UD that just doesn't seem right.  Is there a place I can report it anonymously?

Yes.  If you see something at the University that appears to be fraud, unnecessary waste, a safety issue or University resources, and you wish to remain anonymous, you can use the University's Confidential Reporting Line.  All communications through the line will be handled anonymously; your identity remains protected throughout.  However, if what you wish to report appears to be an issue of unlawful discrimination (that is, discrimination on the basis of a protected class), please feel free to report that issue online at the University's Nondiscrimination Resource Center webpage under the link for "Complaint, Reporting and Appeal Forms."  [Top of page]

4.  Can you explain my obligations or rights under FERPA?

FERPA, short for the "Family Educational Rights and Privacy Act of 1974," grants students certain rights with respect to their education records and, in turn, imposes on the University certain obligations in handling those records.  The University's Policy on Disclosure of Student Records -- also known as its FERPA policy -- sets forth the University's policy for complying with FERPA.  Also available on that FERPA Policy webpage are a Student Consent FormRecords Request Form (for non-students seeking access to education records) and other general information for how to comply with FERPA in day-to-day activities at the University. [Top of page]

5.  I want to use material that I believe may be copyrighted.  Can the Office of Legal Affairs let me know if I can use it? 

Under the Copyright Act of 1976, the author of a creative work is granted the exclusive right to use the material.  “Fair use” is a limitation or exception to the author’s exclusive right where someone else can use the copyrighted materials without acquiring permission from the author – but whether a use is “fair” depends on a number of factors, including (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  While the Office of Legal Affairs can help you consider how each of these factors might apply to your proposed use, this office cannot declare a use to be “fair” – that is something only a federal judge can do.  When in doubt, permission from the lawful copyright owner should be sought.  For information about who owns the copyright for works created by University staff, faculty and/or students as part of their University employment or participation in a student organization, please refer to the University's Policy on Intellectual Property.  [Top of page]

6.  Can I ask anyone with a law degree on campus for legal advice about my work at the University of Dayton?

No.  Just because an individual on campus has a law degree does not mean that the person can or should offer leagl advice on behalf of the University.  Only attorneys in the Office of Legal Affairs or attorneys formally retained by the University are authorized to offer legal advice that binds the University and it is those lawyers who have professional insurance in place to cover their legal services for the University.  [Top of page]

7.  What is “Affirmative Action?”

The University of Dayton is a federal contractor and meets the criteria to be encompassed by affirmative action requirements, which, broadly speaking, are a set of policies for the benefit of an underrepresented group in areas of education, employment, and business.  As a covered entity, the University must affirmatively act to recruit and hire women, traditionally under-represented minority groups, persons with disabilities and veterans.  Affirmative action includes training programs, outreach efforts, and other affirmative/positive steps.  For more information, please reference the University's Affirmative Action Policy or visit the University's Affirmative Action webpage.                    [Top of page]

8.  What is attorney-client privilege?

The attorney-client privilege protects certain types of communications between the client and attorney as well as keeps those communications confidential.  The privilege applies to any communication that is:  (a) between an attorney and client; (b) for the purpose of soliciting or receiving legal advice, and (c) made in confidence and kept confidential.  The overall goal of the privilege is to allow a client to fully and freely disclose issues to his or her attorney (without fear of disclosure), so that the attorney in turn can provide effective advice and representation.  Ohio law does allow the attorney to disclose what would otherwise be confidential information in certain limited circumstances, such as when the attorney has the express written consent of the client.  Other exceptions include when the client is using the attorney’s services to commit fraud and also certain disputes regarding a deceased client.  [Top of page]

9.  What is “attorney work product?"

“Attorney work product” consists of materials prepared in anticipation of litigation; such materials are protected from release during the discovery process in litigation, i.e., opposing counsel cannot obtain them.  That is, the materials are privileged.  A person other than the attorney (but acting under his or her direction) can prepare work product.  Materials covered under work product include statements, memoranda, briefs, notes of conversations and investigations, mental impressions, opinions, legal theories and certain analyses and other work to support those opinions and theories.  [Top of page]

10.  What is “electronic discovery?”

“Electronic discovery” or “e-Discovery” is information in electronic format that may be discoverable by the opposing party in litigation.  Often such information is referred to as “ESI,” or “electronically stored information.”  ESI includes email, documents, photos, video, databases, website content/blogs, telephone records/voicemail, text/instant message, other file types, and raw data.  [Top of page]

11.  What is a “litigation hold?”

When the Office of Legal Affairs is aware of threatened or actual litigation against the University, it typically will send out a “litigation hold” to individuals at the University who are suspected to have electronically-stored information or other documentation relevant to the litigation, to help ensure that such individuals do not inadvertently delete or otherwise destroy needed documentation.  This is because the University has an obligation to preserve relevant information when it learns, or reasonably should have learned, of pending or threatened litigation or a regulatory investigation.  If you are aware of threatened or actual litigation and are wondering about your obligations to preserve ESI or other documents, please contact the Office of Legal Affairs immediately.  [Top of page]

12.  What is "preponderance of evidence?"

“Preponderance of evidence” is a standard of proof used in some internal University proceedings, such as Title IX investigations.  Practically speaking, what the standard means is:  “Is it more likely than not that what the complainant alleges to have happened actually happened?” If the decision-maker in a proceeding (whether a student conduct hearing board, investigatory team, etc.) determines it is more likely than not that the alleged event occurred, then the factual finding will be that the event did indeed happen.  Sometimes this is described as "50% plus a feather."  If the persuasive value of the evidence is so evenly balanced that the decision-maker is unable to say whether the alleged event occurred, then the factual finding will be that the event did not happen.   

A tougher standard is used in criminal prosecutions.  Specifically, if an offense were charged by the Montgomery County Prosecutor’s office, ultimate conviction would require a finding that it is “beyond a reasonable doubt” that the elements of the offense were indeed met.  Under Ohio law, “‘Reasonable doubt’ is present when the [decision-makers], after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. . . . ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.”  O.R.C. § 2901.05.                  [Top of page]

13.  In my work for the University, I would like to enter into a contract that would bind the University.  Am I authorized to sign the contract?  Does a lawyer need to review the contract?

Only specific individuals are authorized to sign contracts, depending on the amount at stake, the scope of the contract and other issues.  While there are certain situations where legal review is not warranted, the Office of Legal Affairs encourages legal review in most cases. Please allow at least two weeks for the legal review, as the University attorneys want to give your contract the attention it's due yet still tend to the other needs of the University effectively. For more information, please contact Legal Affairs.  [Top of page]

14. I have authority to sign certain contracts on behalf of the University, but I understand I may be able to further delegate that authority.  How do I do that?

Individuals, such as deans and vice presidents, have been delegated authority (by the President) to sign contracts on behalf of the University, within certain parameters.  If you are such an individual and would like information about those parameters, please contact the Office of Legal Affairs at x9-4333 or legalaffairs@udayton.edu.  If you would like to sub-delegate your authority to a direct report, with the understanding that you retain oversight authority for contracts your direct reports sign, a template subdelegation letter is available here.  Revise all bracketed portions of that letter based on your unit's individual information.  Once that letter is executed, please provide a copy to the Office of Legal Affairs (Campus Mail +4 zip is 1660).  [Top of page]

15.  What do I do if I receive a request to be interviewed as part of an investigation, case or threatened case, or I receive a request for documents or information?

If you are contacted by a government agency, law enforcement official, outside attorney or other third party to be interviewed with respect to an investigation, lawsuit or potential lawsuit, or someone outside the University asks you for documents or information, please inform the requester that such efforts should be coordinated with the University’s Office of Legal Affairs.  If you receive such a request, please contact the Office of Legal Affairs.           [Top of page]

16.  What should I do if an attorney not representing the University contacts me and asks for information about the University?

If you are contacted by an outside attorney in connection with University business or your work for the University, please notify the Office of Legal Affairs immediately.  Please do not speak or correspond directly with an attorney representing someone or threatening a claim or lawsuit against the University or against you in your official capacity for the University; such communications should be undertaken and/or overseen by the Office of Legal Affairs.  In cases where one of the University’s outside attorneys needs to contact you, someone in the Office of Legal Affairs will give you forewarning that such contact will happen (so that you will know you can talk with that attorney).     [Top of page]

17.  What do I do if I get served with a subpoena relative to my work for the University?

Please refer any subpoena to the Office of Legal Affairs.  Note that if education records are the subject of a subpoena, consistent with the University's Policy on Disclosure of Student Records (its "FERPA" Policy), the University will make a reasonable attempt to notify the student whose education records are affected by the order or subpoena of such impending release (typically 10 days advance notice).  Also the University's practice is to redact the names and other personally-identifying information of anyone not directly involved in the subpoena (for example, personally-identifying information about a student who is not a party to the legal proceeding).                 [Top of page]

18.  I teach a course that includes activities off-campus.  Should students sign any type of release before participating in off-campus activities like this?

Yes, students should be required to sign a release before participating in any off-campus activity.  If you need help crafting an appropriate release form, please contact the Office of Legal Affairs.  Also be aware that any non-University entity that's part of that off-campus activity (for example, an outfit hosting an event or providing equipment) may have its own agreements that need to be signed, which may be designed to bind the students and/or the University.  The Office of Legal Affairs can assist you in reviewing and negotiating those agreements as well.  [Top of page]

19.  I'm a student who was accused of a crime but the prosecutor decided not to press charges.  Yet I am still being charged through the University's student conduct system.  How?

The University's standards are not the same as criminal standards.  That is, the University's Code of Conduct might find certain behavior unbecoming to the University community that does not amount to a crime.  Plus, the University applies a different standard of proof (typically, a "preponderance of evidence" standard) rather than the criminal system's standard of proof (the "beyond a reasonable doubt" standard), meaning, generally, that the criminal system requires more exacting, conclusive evidence before a person can be found responsible.  The criminal system uses a tougher standard because the consequences faced by criminal defendants are so serious -- they risk losing their liberty (i.e., going to jail) if found guilty.  [Top of page]

20.  I am a University faculty member or staff member who supervises a student employee who may access confidential information.  What should I do to make sure the student handles that information appropriately?

University staff and faculty who have students reporting to them who have access to confidential information should take steps to ensure those students understand and agree to preserve the confidentiality of those records, and that they understand the confidential information may only be accessed consistent with their student-employment role.  That is, student employees are not permitted to peruse confidential records just because they're "curious"; access must be required by the duties of the job.  If education records will be accessed, you should make sure the student is aware of his or her obligation to comply with the University's Policy on Disclosure of Student Records (also known as the "FERPA Policy").  We recommend that you have all student employees with access to confidential information sign a Student Employee / Volunteer Confidentiality Agreement.  The signed agreement should be kept by the office that hired the student employee.   [Top of page]