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Summary

The General Counsel of the University of Arkansas system represents the Board of Trustees of the University of Arkansas as the institutional client — not the individual employees, the general public, or the people of Arkansas at large. This representation is governed by Arkansas Rules of Professional Conduct Rule 1.13, which defines the organization as the client, and by Ark. Code Ann. § 25-16-702, which establishes the Attorney General as the chief legal officer for all state institutions. When the University of Arkansas — including UAMS — is involved in litigation or legal matters, the General Counsel’s primary duty runs to the Board of Trustees as the governing body, not to individuals within the institution, and not to members of the public who may have been harmed by institutional conduct. However, this institutional representation carries important ethical limitations: the General Counsel cannot lawfully act to suppress or conceal clear violations of law, and is not simply a shield to protect the institution from liability for its own wrongdoing.

The University of Arkansas as an Instrument of the State

The University of Arkansas is not a private institution — it is an instrument of the State of Arkansas performing a governmental function. The U.S. Supreme Court held in State of Ark. v. State of Tex., 346 U.S. 368 (1953) that “the University of Arkansas is an instrument of the state in the performance of a governmental work and a suit against the University is a suit against the state.” The Board of Trustees of the University of Arkansas is a body politic and corporate created by state law. State of Ark. v. State of Tex., 346 U.S. 368 (1953). UAMS is not an independent legal entity but is rather a campus extension of the University of Arkansas system under the control of the Board of Trustees, as confirmed by Ark. Code Ann. § 6-64-601 and § 6-64-402, which establish the medical department of the University of Arkansas and place its control and management with the Board of Trustees. Harrison v. University of Arkansas for Medical Sciences, Not Reported in F.Supp.2d (2007). Because a suit against UAMS is effectively a suit against the University of Arkansas and the Board of Trustees, the General Counsel’s representation ultimately runs to that governing body.

The Attorney General as Chief Legal Officer for State Institutions

Under Ark. Code Ann. § 25-16-702(a), the Attorney General of Arkansas “shall be the attorney for all state officials, departments, institutions, and agencies” AR ST § 25-16-702. The statute mandates that “[w]henever any officer or department, institution, or agency of the state needs the services of an attorney, the matter shall be certified to the Attorney General for attention” AR ST § 25-16-702. Critically, the statute further provides that “all office work and advice for state officials, departments, institutions, and agencies shall be given by the Attorney General and his or her assistants, and no special counsel shall be employed or additional expense paid for those services” AR ST § 25-16-702. Special counsel — including a university’s own General Counsel — may only be employed when the Attorney General and Governor approve, or when the Attorney General fails to render service upon written request AR ST § 25-16-702. The Arkansas Supreme Court confirmed in Griffin v. Arkansas Board of Corrections, 2025 Ark. 81 (2025) that the Attorney General’s duty to serve as attorney for state institutions depends on the relevant entity certifying its need for representation, and that the statute governs the scope of legal representation for all state boards and agencies.

The General Counsel’s Client: The Organization, Not the Public

Under Arkansas Rule of Professional Conduct 1.13(a), “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” AR R RPC Rule 1.13. This means the University of Arkansas General Counsel’s client is the Board of Trustees as an institution — not individual employees, not the general public, and not the people of Arkansas. The General Counsel is not ethically required to act as a public interest attorney or advocate for third parties harmed by the institution. The Arkansas Court of Appeals confirmed in Watkins v. Arkansas Department of Agriculture, 2018 Ark. App. 460 (2018) that Ark. Code Ann. § 25-16-702(a) “specifically authorizes the Attorney General to represent individual defendants who are sued for actions taken in the course and scope of their employment,” which underscores that even individual employees are not automatically the institutional attorney’s clients.

Ethical Limits: General Counsel Cannot Serve as a Liability Shield for Unlawful Conduct

While the General Counsel’s client is the institution, Arkansas Rule of Professional Conduct 1.13(b) imposes critical ethical obligations that prevent the General Counsel from simply acting as a liability shield for institutional wrongdoing AR R RPC Rule 1.13. If the General Counsel knows that an officer, employee, or other person associated with the University “is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization” AR R RPC Rule 1.13. This requires the General Counsel to refer the matter to higher authority within the organization — up to and including the Board of Trustees itself — rather than suppress or cover up the misconduct AR R RPC Rule 1.13.

Under Rule 1.13(c), if the highest authority within the organization “insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law,” and the General Counsel reasonably believes this will result in substantial injury to the organization, the General Counsel “may reveal information relating to the representation” to prevent that injury AR R RPC Rule 1.13. Furthermore, Rule 8.4 of the Arkansas Rules of Professional Conduct provides that it is professional misconduct for a lawyer to “violate or attempt to violate the rules of professional conduct” or to “state or imply an ability to influence improperly a government agency or official” AR R RPC Rule 8.4.

Courts have consistently held that state university boards are not immune from suit for ultra vires or unconstitutional conduct. The U.S. District Court for the Western District of Arkansas recognized in Kerr v. Raney, 305 F.Supp. 1152 (1969) that “[a]n illegal act on the part of a state official or employee, committed on behalf of an agency of the state, is not protected from suit by governmental immunity. If the defendants have breached an express or implied statutory duty or otherwise exceeded or abused their discretion, such action is ultra vires in nature, and the court may afford proper equitable relief.” Similarly, the Arkansas Supreme Court held in Smith v. Denton, 320 Ark. 253 (1995) that when a university fails to follow its own prescribed disciplinary standards, it violates procedural due process, and the federal courts in the Eighth Circuit have held that Board of Trustees members can be held personally liable under 42 U.S.C. § 1983 when they establish, maintain, or enforce unconstitutional policies. Turning Point USA at Arkansas State University v. Rhodes, 409 F.Supp.3d 677 (2019).

The General Counsel Does Not Represent the People of Arkansas

The General Counsel of the University of Arkansas does not represent the people of the State of Arkansas in a general or public interest capacity. That role belongs to the Attorney General under Ark. Code Ann. § 25-16-702. The General Counsel’s ethical obligations run to the Board of Trustees as the institutional client. However, this does not mean the General Counsel may ethically act to suppress evidence of clear legal violations, shield employees who violate written policies, state law, or the U.S. Constitution, or conceal misconduct that would expose the institution to liability. To do so would violate Arkansas Rules of Professional Conduct 1.13 and 8.4, and could constitute conduct that is itself ultra vires or actionable under § 1983. AR R RPC Rule 1.13, AR R RPC Rule 8.4, Kerr v. Raney, 305 F.Supp. 1152 (1969).

Commentary on This Question

The role of General Counsel in public universities typically involves advising the institution’s governing bodies and officials, which includes providing guidance on legal compliance, institutional policies, and potential litigation risks. General Counsel’s duties generally focus on protecting the institution’s interests, interpreting state and federal law, and advising on regulatory and governance issues. This legal advisory role extends to ensuring institutional actions comply with laws such as Title IX, employment law, and constitutional mandates, rather than representing the individual public or the state’s citizens directly. As an employee of the institution or its governing board, the General Counsel’s responsibility is often to mitigate liability exposure and defend institutional policies and decisions unless specific state law provides otherwise. Speech and advocacy by university employees, including General Counsel, are typically considered part of official duties, limiting their ability to assert independent First Amendment protections independently of their institutional role. Cases addressing retaliation claims highlight that General Counsel advising on matters of legal compliance and conflicts of interest act within their official duties, underscoring their role as institutional representatives rather than individual advocates for public interests outside the institution 24 AMJUR TRIALS 421, 22 AMJUR POF 3d 203.

University policies and governance structures operate under shared governance principles, with policies subordinate to state and federal law. Employee violations of institutional policies may justify disciplinary action independent of possible violations of state or constitutional law. The institutional policy framework and employment classifications govern employee relations, and institutional counsel’s role aligns with protecting these governance frameworks and the university’s legal interests 142 AMJUR TRIALS 391.

Current Awareness

JD Supra reports that, under ABA Formal Opinion 514 and Model Rule 1.13, lawyers retained by an organization represent the entity and not its employees, stakeholders, or the public; applied here, the University of Arkansas General Counsel represents the University (including the Board of Trustees and its campuses) as the organizational client. When interacting with board members, officers, or employees, counsel must clarify the lawyer’s role, manage conflicts if also representing individual board members pursuant to Model Rule 1.7, and explain the role when the organization’s interests are adverse to stakeholders, with guidance further informed by Model Rules 1.1, 1.4, 2.1, 4.1, and 4.3; in potential or actual litigation, counsel should inform employee interviewees and witnesses that counsel represents the organization. ‘Attorneys Must Clarify Their Role to Clients’, by Craig Brodsky, Goodell, DeVries, Leech & Dann, LLP, Published By JD Supra

JD Supra further notes that, consistent with Model Rules 1.1, 1.4, and 2.1, organizational counsel should advise the organization when its actions create legal risks for constituents and should provide early and repeated reminders that counsel represents the organization—not individual employees. In this framework, a university’s general counsel provides candid advice to the institution regarding exposure and compliance rather than representing the people of the state, and must take reasonable measures to prevent or dispel misunderstandings about that role. ‘The Corporate Client: You’re My Lawyer, Right?’, by Seth Laver, Goldberg Segalla, Published By JD Supra

Generated by AI and may contain mistakes. Not legal advice. A qualified professional must verify accuracy and legal compliance.