FAQ: Faculty Legal Defense Fund

lawyer team working together in the meeting

Some questions typically raised with respect to the Faculty Legal Defense Fund (“FLDF”) are the same as or similar to some of those asked about cases submitted to FIRE generally, and are answered at the FAQ About Case Submissions page, such as:

The following address questions specific to, or whose answers are specific to, FLDF.

Do I have an FLDF case? What is a “case”?

By “case” for FLDF purposes, we mean “issue,” “concern,” or “controversy” — any situation you suspect may represent a threat to your rights as faculty to freedom of expression and association and/or academic freedom. Other rights — such as rights to due process, legal equality, religious liberty, and sanctity of conscience — also are protected, and though outside FLDF’s mandate, may still be the subject of help from other FIRE programs (see this Case Submission FAQ for more information).

What kinds of cases fall within FLDF?

While FIRE generally defends the rights of students and faculty members in higher education at U.S. public and private colleges and universities with respect to freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience, FLDF is more narrowly focused. It safeguards and vindicates faculty members’ rights to free expression and association and academic freedom, and may address employment/contractual issues implicated by incursions on those rights.

FLDF also is limited to faculty at public colleges and universities. Support for other faculty (and student) rights and/or for faculty at private institutions may be available from other FIRE programs, as discussed in the Case Submission FAQ. Note that FIRE does not take cases from university staff members who lack faculty or student status or elementary or high-school students, cases that arise at schools outside the United States, or cases that primarily involve grading disputes.

How does FLDF work?

The Fund pays fees and costs for FLDF participating attorneys for a set number of hours of initial legal work, subject to specified quantitative benchmarks. Such work can include (but is not necessarily limited to) consultation between the lawyer and faculty member, the lawyer’s review of relevant documents, informing the faculty client of legal (and/or other relevant) options, and/or negotiation or correspondence to resolve the legal issue. After these initial periods of work, the attorney will consult with FLDF, and if further substantial legal work may be needed to resolve the faculty member’s issue(s), the matter will be presented to the FLDF Litigation Committee. If the Litigation Committee approves, FLDF pays legal fees and costs to take the case to court or otherwise resolve the matter.

Do all FLDF referrals necessarily involve litigation?

No. In fact, the initial periods of Fund-supported legal work are designed to assess the matter, to explore, and, if possible, favorably resolve the faculty client’s issue(s) without resorting to litigation. Further work other than filing suit also may be approved by the Litigation Committee if recommended by counsel, desired by the faculty client, and deemed likely to yield a positive result. FLDF seeks to provide “early responder” assistance by lawyers with the goal of securing faculty members’ constitutional (and related) rights before and without the need for litigation.

Will FLDF cost faculty members anything?

No. FIRE is a charitable, non-partisan, non-profit organization and does not charge for its defense of faculty rights. Matters falling within FLDF are handled by lawyers paid through the Fund.

Is FLDF work handled pro bono?

No. For matters that FLDF refers, the Fund pays the participating lawyers directly through engagements arranged directly with them.

Will FIRE, or FLDF, be my lawyers?

Submitting a case to FLDF does not establish an attorney-client relationship between the faculty member and the program, or with FIRE. Nor will FLDF or FIRE represent you as your lawyers — that is the role of FLDF participating attorneys. The only exception is for matters handled separately, outside of FLDF, by FIRE’s Litigation Project, which are pursued only in a very narrow range of cases, subject to a signed letter agreeing to that representation.

How are FLDF participating attorneys selected?

We identify lawyers in each state or jurisdiction with the experience and subject-matter expertise in the substantive legal areas falling within FLDF’s mandate, and engage them in the program generally, so that when needs arise to refer a faculty member for legal assistance, counsel will be available. In this way, agreement to the parameters of FLDF generally, and the basic terms and conditions of representation (such as fees, directing invoices to FLDF, communications between the program and the attorney, etc.) are already in place, to avoid unnecessary delays in turning to a faculty member’s legal issue(s).

Are lawyers who agree to become FLDF participating attorneys required to take my case?

No particular FLDF attorney is required to accept any given referral. We accordingly strive to attract and maintain multiple practitioners in each jurisdiction so that counsel with the requisite skills and experience will be available for all referrals.

Can I choose which attorney represents me using FLDF Funds? Will FLDF pay an attorney I’ve already retained?

No. FLDF operates by having the lawyers participating in the program vetted, pre-selected, and already engaged for FLDF purposes. Faculty members are welcome to retain and pay for their own counsel, but having legal services paid by FLDF requires using counsel the program has already enrolled.

Are FLDF participating attorneys free to fully exercise their professional judgment in representing me?

Yes. Upon referral, faculty members become clients of the FLDF participating attorney (jointly with FIRE as the entity paying for the legal services), who makes strategic and other decisions in consultation with the faculty client.

To the extent there are any limitations imposed by FLDF, they are quantitative limits on legal work for which FLDF pays, that FLDF covers only legal work to vindicate constitutional expressive/association rights and related employment/contract issues, and that suing on behalf of a faculty client must be approved by the Litigation Committee if FLDF funding is desired.

If litigation is approved, FLDF pays fees only to litigate claims vindicating expressive and associational rights, and related employment/contract claims (faculty are free to make other arrangements with the lawyer if other claims will be brought, subject to FLDF approval of joining those claims in the same suit with Fund-supported claims).

How involved will FIRE's FLDF personnel be in my case once I engage with the FLDF participating attorney?

When FLDF accepts a matter and refers it to a participating attorney, neither FLDF nor FIRE represents you as your lawyer. Rather, the participating attorney (along with their firm, in most cases) enters an engagement arrangement with you as the client and represents you directly, and your attorney is paid for by FLDF. As your lawyer, the FLDF participating attorney can fulfill all requirements as legal counsel, without the need for substantive participation by FLDF personnel. FLDF personnel’s role in a matter is generally limited to receiving quantitative tracking of the FLDF attorney’s work and case-status updates in connection with that, though FLDF staff remain available to its lawyers and faculty clients as a resource. At the same time, however, FIRE’s advocacy team may separately undertake efforts in support of your matter, at the invitation of and in cooperation with your FLDF attorney, and subject to your consent.

What information must be shared with FLDF during the representation? What about attorney-client privilege?

Once an attorney accepts a referred matter supported by the Fund, FLDF must review (and countersign) the joint engagement agreement. After that, the lawyer must apprise FLDF of the status of the matter (in broad strokes), including at specified benchmarks. If litigation or other substantial further work is warranted, counsel’s proposal to the FLDF Litigation Committee must provide enough information to justify the further funding. FLDF lawyers may, at their option, consult with FLDF personnel during the representation. Provision of any information in these regards is consented to by the faculty client, and otherwise provided for, in the representation agreement.

May the attorney to whom FLDF refers me continue work beyond the number of hours paid by the Fund, and/or if FLDF’s Litigation Committee does not approve my matter for funding for litigation or other further work?

Yes, the representation may continue under whatever arrangements a faculty member and the lawyer(s) agree upon not involving FLDF’s payment of fees. If they do so, they must enter a new engagement agreement that terminates and replaces that under which FIRE and FLDF funded the representation.

What happens if an FLDF-supported matter reaches a point in the representation where my views and FIRE’s depart on how it should proceed?

Faculty members ultimately are the masters of their matters. In the unlikely event that FIRE/FLDF and the faculty client reach an intractable impasse on how a matter ought to proceed and how FLDF funds are best deployed, FIRE/FLDF may withdraw. After that, the faculty client can make separate arrangements with the lawyer to whom they were referred (or otherwise) for pursuing resolution of their issue(s) outside FLDF.

Can I freely settle my matter(s) and/or opt to cease pursuing relief or resolution?

Yes. As in other contexts, faculty members control their matters — including freedom to settle on any basis acceptable to them, and/or to bring a halt to seeking relief.