 LEGAL
OPINIONS
To consult or not to consult an attorney?
That’s the question educators must consider when facing work-related issues
BY JACKIE STRASHUN, STAFF ATTORNEY
Pick up a daily newspaper, and you’ll likely read about yet another parent or student lodging serious allegations
against a teacher, coach or another educator. There are also many legal problems that don’t make the papers—those
that involve pay, evaluations or conflicts with co-workers—and they can be just as vexing to the individuals
involved as the headline-making cases.
 The employment issues
confronting educators are increasingly complex, and they can involve local customs, official policies, state
regulations, state statutes, common law (court decisions) or federal statutes. How an educator chooses to navigate
this sea of rules and regulations often carries long-term implications for his employment and entire career.
Three options are available to Texas public school educators confronting personal employment-related matters: They
can “fly solo,” consult and be represented by a licensed attorney, or ask for advice and assistance from a
layperson such as a spouse or union representative.
The appropriate choice depends on the particular circumstances.
Deciding to go it alone
Individuals have a right to represent themselves in virtually all circumstances where they are confronted with
legal challenges. Sometimes this choice is preferable to retaining the services of an attorney or other
representative; it’s quick, avoids legal fees and allows the educator to fully control her own strategy. It might
make the other party more willing to compromise or alleviate feelings of defensiveness. An educator might have a
well-founded concern that openly involving an attorney or other representative will increase animosity. And, of
course, involving an attorney makes it much more likely that the other party will also involve one.
But the decision to fly solo has its risks. First, the educator must prepare and present her own claim. This can
be daunting when the presentation must be made to supervisors. The educator might also fail to take required steps
or not effectively make arguments that could protect her rights, thus resulting in the loss of those rights
forever.
Attorney or layperson?
Sometimes matters are too complex, the cost of possible failure is too high or the situation is too emotional for
an educator to feel comfortable going it alone. In these instances, where should educators turn for help? Should
they look to attorneys or to laypeople, such as spouses or coworkers?
Each choice has its advantages. The educator might feel more comfortable with the layperson. The layperson might
also have established relationships with the parties involved that could help resolve a problem informally.
Importantly, unless the educator belongs to a professional association such as ATPE that provides legal assistance
to eligible members, there are also legal
fees to consider.
On the other hand, working with an attorney has many plusses. First, communications between a client and an
attorney are considered “privileged” by law, meaning that the attorney cannot talk to others about what she has
learned from the client without the client’s permission. It also means that in most cases, no one else can compel
the attorney to divulge what a client has said. The educator can be comfortable that his issue will be kept as
confidential as he wishes. This is not guaranteed with
a layperson.
In addition, attorneys are trained in the law and must update their legal knowledge through required annual
professional development. The educator can feel comfortable that his representative will protect his legal rights.
There is no such requirement for the layperson.
Finally, an attorney is required to consider her client’s interests only. An attorney cannot take personal or
association interests into account when giving advice or proceeding with representation. The educator can feel
comfortable knowing that outside considerations are not influencing his attorney’s actions. Again, there is no
such requirement for laypeople, who can make decisions based on what is best for themselves or their
organizations.
The educator must ask himself: How much can you trust an untrained and certainly unlicensed person who, because of
inexperience or lack of education, might not realize he’s giving advice beyond his limits?
But will any lawyer do?
Much like medicine, the law has become too complex for one individual to be truly expert at everything. It is
therefore important to find an attorney knowledgeable about the legal area in question, especially when the matter
involves public schools and public school staff members as many special rules apply to them that do not apply to
private businesses or employees. For instance, public school employees are generally required to attempt to
resolve matters through the local grievance process before taking legal action against a school district. Failure
to pursue a grievance or failure to act within the timeframe set by district policy can result in a judge
dismissing a suit against a district—even if the suit involves an ironclad legal claim.
So, should one go solo, rely on a layperson or consult an attorney? Each option has its place, but eligible ATPE
members should always remember that they can contact the ATPE Member Legal Services Department to discuss their
employment-related issues and which option is best for them.
___________________________
The legal information provided on this Web site is for general purposes only. It is not intended as a substitute for
individual legal advice or the provision of legal services. Accessing this information does not create an
attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an
attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our
online system, MLSIS.
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