Robert L. Barchi, president of Rutgers, The State University of New Jersey, announced the firing of the school’s athletic director, Tim Pernetti, in an April 5 press conference, two days after Rutgers had fired its head men’s basketball coach, Mike Rice, for physically and verbally abusing players, including the use of gay slurs, while conducting practices over two seasons.
In the press conference, Barchi thanked Pernetti for his service, and read Pernetti’s letter of resignation to the assembled media. Pernetti’s letter stated, in part, that Pernetti had previously wanted Rutgers to fire Rice, but that “Rutgers decided to follow a process involving university lawyers, human resources professionals, and outside counsel. Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.”
Barchi defended his decision back in December 2012, to suspend and fine, but not fire, Rice. Barchi said Pernetti gave him only a summary of the situation, which in turn was “based on the advice of Rutgers’ General Counsel and outside legal advisors.” Barchi went on to say that lawyers counseled Pernetti on the matter, and that the lawyers bore responsibility for the decision along with other Rutgers officials.
The general counsel was Interim Senior Vice President and General Counsel John B. Wolf. Wolf had been an in-house lawyer for Rutgers since 1984, and, according to his Rutgers bio page, taught classes in addition to his GC duties. It was Wolf who, back in November 2012, commissioned an outside law firm to conduct an independent investigation of Rice. Wolf contacted the firm one day after Wolf, Pernetti and others viewed highlights of Rice’s abuse, compiled in a 30 minute DVD produced by a former assistant of Rice’s seeking money damages from the school. The DVD eventually aired on ESPN’s “Outside the Lines.”
John Wolf’s nearly 30 years of employment at Rutgers came to an end the week following the press conference, with his resignation. After many years of untarnished service to Rutgers, Wolf had spectacularly failed to do his job. Or had he?
At the same April 5 press conference, Rutgers handed out copies of a written report covering the investigation and making legal recommendations regarding Rice’s misconduct. The report, written by attorney John P. Lacey, raises two problems with what Pernetti said in his letter. First, the date on the report distributed at the press conference is Jan. 21, 2013, more than 5 weeks after Rutgers’ Dec. 13, 2012 suspension of Rice. Second, the report plainly states that Rice had violated the terms of his employment contract by mistreating the players, giving Rutgers grounds to terminate Rice for cause: “Due to the intensity with which Coach Rice engaged in some of the misconduct, we believe that AD Pernetti could reasonably determine that Coach Rice’s actions tended to embarrass and bring shame or disgrace to Rutgers in violation of Coach Rice’s employment contract with Rutgers.” The report’s conclusion that Rice had violated his contract also contradicts Barchi’s April 5 press conference comment that “… all of the opinions we’ve had from the legal point of view say that [Rutgers could not fire Rice for cause].”
The most detailed account of Lacey’s investigation leading up to the report, and of discussions between Lacey and Rutgers during the investigation, comes from an April 7 ESPN article by Don Van Natta, Jr. According to Van Natta, Lacey completed the bulk of the 17-day investigation on Dec. 8 or 9, and during the investigation Lacey frequently communicated with Pernetti. Van Natta’s article, however, provides no information that a first or advance draft of the report, which would have included not just fact gathering from the investigation but Lacey’s legal conclusions, was ever shared with Wolf or Pernetti, or whether Wolf was a party to Lacey’s and Pernetti’s conversations.
Which brings me to ask a startling question: Did Athletic Director Tim Pernetti and President Robert Barchi, who blame the lawyers for their missteps in dealing with Rice, actually rely on legal advice, or even make a concerted effort to obtain legal advice, before acting?
What we know for certain is the following:
- Pernetti and Barchi did not wait to receive the final copy of the report before taking administrative action against Rice.
- The conclusions of the report did not prevent Pernetti and Barchi from firing Rice.
- Wolf, as general counsel, commissioned an outside law firm to conduct an independent investigation of Rice’s conduct towards players the day after viewing the DVD.
- Wolf was not Rice’s supervisor and was not the person to make the decision to suspend or fire him.
We can’t know exactly what advice Pernetti received from Wolf or Lacey about whether to suspend Rice. It is possible that Wolf and/or Lacey verbally presented Pernetti with the same conclusions that appear in the report, but did so in shades of grey, instead of the report’s black and white, each for his own reasons: Wolf because of his institutional bias towards Rutgers, Lacey because he wanted to keep a client happy.
Impatient internal clients are nothing new to in-house lawyers. We often get called into situations at the last minute and are expected to come up with instant answers. The reasons our clients give us for a quick turnaround are often more imagined than real. Pernetti did have a real reason for not wanting to wait for a final written report from Lacey before taking action on Rice, though I don’t know that the reason was a good one. Pernetti wanted Rice’s suspension to end, and Rice to return to the bench, in time for Rutgers’ first Big East conference game of the season.
Nor do clients always want legal advice. Ignorance can be bliss. It has been my experience that many internal clients do not like to try to weigh legal advice against business considerations in making decisions. I imagine Pernetti was much happier sitting and listening to Wolf and/or Lacey boil down all of the facts and applicable laws into a couple simple bullet points, then asking them what he should do, or asking them why legally he couldn’t do what he wanted. That is, if Pernetti ever actually considered what the lawyers had to say.
What can the rest of us in-house lawyers learn from former Rutgers GC John Wolf’s demise over the Rice affair?
Wolf did commission an independent investigation into Rice’s misconduct. It was the single most proactive and transparent action taken by anyone at Rutgers during the Rice affair. If and when Wolf realized that a final copy of the report would not reach Pernetti’s hands prior to Rutgers’ suspension of Rice, what was Wolf’s response? It was Wolf’s job both to manage the outside firm’s progress towards completing the investigation, and to advise Pernetti that Rutgers should not act on Rice until the completion of the investigation and review of the report.
It appears that Wolf and/or Lacey only advised Pernetti, not Barchi, prior to Rice’s suspension. Wolf as general counsel reported directly to Barchi, and Barchi was the final decision maker regarding any action on Rice. If Wolf never attempted to present his or Lacey’s advice to Barchi, that was Wolf’s mistake, although Barchi’s “Gee, this sort of thing never happened in the Ivy League” act at the April 5 press conference (Barchi had been the provost at University of Pennsylvania) is indicative of a man who wanted to stay out of the affair. Further, Wolf should have recognized that any college athletic director would be inherently conflicted in punishing a coach for misconduct. It was Wolf’s job to personally communicate the risks that Rutgers faced, or did not face, to Barchi, regardless of whether Pernetti approved or Barchi wanted to be involved.
When providing legal advice, in house lawyers can lead their clients to water but they can’t make them drink. We can, however, follow these best practices:
- Deliver legal advice whether it is wanted or not. Make sure the organization’s decision makers hear what they need to hear, especially in times of crisis. Find an opportunity to present your legal advice, or create the opportunity. Whether your advice is received or used wisely is up to your clients, not you.
- Document the legal advice you give. Even if circumstances foreclose writing a memo in time, follow up your advice as soon as practicable with at least an email accurately reflecting what you said.
- Don’t conduct an independent investigation unless you and the organization are prepared to wait for the results and to live with them.
- Avoid taking ownership of making final decisions (unless you want to take on the risk/reward).
- Resist time pressures. Imaginary deadlines are possibly the single biggest challenge faced by in-house lawyers on a daily basis. If necessary, work to buy more time for giving legal advice before a final decision is reached.
- Don’t be politically deaf. Recognize the potential for political fallout from decisions you advise on. Political fallout should never prevent or color the giving of good legal advice. Nevertheless, politics is part of our reality, and in-house lawyers are not immune from its effects.