We like your funding, but you can't talk to our lawyers
April 13, 2016 1:51 PM Subscribe
YANML. Non-Profit Organization A is preparing to fund a research project at German Public Learning Institution B. In the course of drafting the contract that governs this funding, B will not allow the lawyers at A to talk directly with the lawyers at B. Rather, B maintains that their attorneys are only consulted on decisions that B otherwise makes through a management department. The process has been pleasant and this is not borne out of conflict. Is this barrier to direct legal discussion a common arrangement for German/European public learning institutions?
A, which is not in Germany, provides funding to other parties at public learning institutions in several countries. In all cases, A's lawyers have been able to confirm certain aspects of the funding contracts directly with the legal representation at the funded institutions.
I've tried to look in to governing law for German public learning institutions, but IANAL and can't seem to make heads or tails of this. I've never encountered a situation like this before, in which attorneys for funded parties don't have final say in the structure of the contract. B has said, quite simply, that direct communication between the attorneys for both parties is not how business is done at institutions like theirs. My worry is that the final contract between A and B will be reviewed by B's legal staff at the absolute last possible window, and that they will identify problems that send the contract back to the drawing board. This is not desirable, as time = money when it comes to contracts and legal review.
Have you worked on a project like this? Are there solid reasons, statutes, institutional rules that explain the reticence of B to let our lawyers discuss lawyer things?
A, which is not in Germany, provides funding to other parties at public learning institutions in several countries. In all cases, A's lawyers have been able to confirm certain aspects of the funding contracts directly with the legal representation at the funded institutions.
I've tried to look in to governing law for German public learning institutions, but IANAL and can't seem to make heads or tails of this. I've never encountered a situation like this before, in which attorneys for funded parties don't have final say in the structure of the contract. B has said, quite simply, that direct communication between the attorneys for both parties is not how business is done at institutions like theirs. My worry is that the final contract between A and B will be reviewed by B's legal staff at the absolute last possible window, and that they will identify problems that send the contract back to the drawing board. This is not desirable, as time = money when it comes to contracts and legal review.
Have you worked on a project like this? Are there solid reasons, statutes, institutional rules that explain the reticence of B to let our lawyers discuss lawyer things?
[L]awyers are not ALLOWED to communicate with parties they know to be represented in that matter by counsel.
I don't think that's what's going on here at all. I think A's lawyers are advising A, B's lawyers are advising B, and A and B are talking with each other. That seems normal to me, in contract negotiations.
posted by merejane at 2:21 PM on April 13, 2016
I don't think that's what's going on here at all. I think A's lawyers are advising A, B's lawyers are advising B, and A and B are talking with each other. That seems normal to me, in contract negotiations.
posted by merejane at 2:21 PM on April 13, 2016
I've seen the process of negotiating grants and contracts at several U.S. and Canadian institutions. I can't speak to German institutions specifically, but I have never seen lawyers involved in the process. The terms are reviewed by non-lawyer grants and contracts specialists and contracts are signed by an institutional executive who is not a lawyer. Having a lawyer routinely involved in this process would be incredibly expensive, especially considering the rarity of disputes. If no one in the grants and contract section is familiar with some aspect of the contract it, they could quickly ask a lawyer and be able to save the expense the next time.
posted by grouse at 2:27 PM on April 13, 2016 [4 favorites]
posted by grouse at 2:27 PM on April 13, 2016 [4 favorites]
[L]awyers are not ALLOWED to communicate with parties they know to be represented in that matter by counsel.
Unless their lawyers are aware and consent to the communication out of their presence, which they are presumably doing here.
I would guess that B's lawyers have more demands on their time than they can accommodate, and B's personnel are trained not to give access to them unless necessary. This is pretty common at large companies and universities (not that that makes it any less frustrating).
posted by benbenson at 2:51 PM on April 13, 2016 [1 favorite]
Unless their lawyers are aware and consent to the communication out of their presence, which they are presumably doing here.
I would guess that B's lawyers have more demands on their time than they can accommodate, and B's personnel are trained not to give access to them unless necessary. This is pretty common at large companies and universities (not that that makes it any less frustrating).
posted by benbenson at 2:51 PM on April 13, 2016 [1 favorite]
Unless their lawyers are aware and consent to the communication out of their presence, which they are presumably doing here
B definitely isn't a U.S. institution, and I don't know where A is, so I wasn't implying that anyone was committing an ethical violation. Just pointing out that the presumption tends to run the other way: that lawyers will talk to lawyers, not to principals who have lawyers but don't have them present, which is what it sounds like is happening.
posted by praemunire at 2:58 PM on April 13, 2016
B definitely isn't a U.S. institution, and I don't know where A is, so I wasn't implying that anyone was committing an ethical violation. Just pointing out that the presumption tends to run the other way: that lawyers will talk to lawyers, not to principals who have lawyers but don't have them present, which is what it sounds like is happening.
posted by praemunire at 2:58 PM on April 13, 2016
I've handled tons of grants and not one lawyer has ever been involved. I think institute A is the outlier here.
posted by fshgrl at 5:20 PM on April 13, 2016
posted by fshgrl at 5:20 PM on April 13, 2016
I've seen the process of negotiating grants and contracts at several U.S. and Canadian institutions. I can't speak to German institutions specifically, but I have never seen lawyers involved in the process.
and
I've handled tons of grants and not one lawyer has ever been involved. I think institute A is the outlier here.
At our institution, on the other hand (and at the one other Australian university I have been involved with), it is the default to have the university's legal counsel review funding agreements, especially cross-institutional arrangements. (I know this because I've seen funding fall through because the university's legal team couldn't look through the contract quickly enough for it to get signed on time.)
I've never known of a case when the legal team of one university needed to talk directly to the other, so I don't know if it's common or not, but I know the most common situation here is that the researchers or their representatives (research office, or dean, or whatever) hold the actual discussions with each other about the planned agreement, and each consults independently with their institution's lawyers about the wording of the contract. In my experience, the lawyer just gives the go-ahead for it to be signed, or suggests a change in the wording or whatever, that the researcher/research office then presents to the other institution.
So if that's the case in Germany too, I wouldn't find it weird or anomalous.
posted by lollusc at 6:33 PM on April 13, 2016
and
I've handled tons of grants and not one lawyer has ever been involved. I think institute A is the outlier here.
At our institution, on the other hand (and at the one other Australian university I have been involved with), it is the default to have the university's legal counsel review funding agreements, especially cross-institutional arrangements. (I know this because I've seen funding fall through because the university's legal team couldn't look through the contract quickly enough for it to get signed on time.)
I've never known of a case when the legal team of one university needed to talk directly to the other, so I don't know if it's common or not, but I know the most common situation here is that the researchers or their representatives (research office, or dean, or whatever) hold the actual discussions with each other about the planned agreement, and each consults independently with their institution's lawyers about the wording of the contract. In my experience, the lawyer just gives the go-ahead for it to be signed, or suggests a change in the wording or whatever, that the researcher/research office then presents to the other institution.
So if that's the case in Germany too, I wouldn't find it weird or anomalous.
posted by lollusc at 6:33 PM on April 13, 2016
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posted by praemunire at 2:00 PM on April 13, 2016