Amid Congressional Subpoenas and Lawsuits, Harvard Searches for New General Counsel

Harvard lost its general counsel when it needed her most.

The University’s fleet of more than a dozen in-house lawyers and at least three external law firms have attempted to stabilize Harvard during six months of intense scrutiny and fierce legal battles. But since Diane E. Lopez stepped down as Harvard’s general counsel at the end of February — a decision she announced in November — the hunt for the University’s lawyer-in-chief has taken on a new urgency.

In recent months, Harvard was hit by congressional subpoenas, faced several lawsuits stemming from its handling of antisemitism on campus, and has been forced to walk a tightrope around legal traps from anti-affirmative action watchdog groups as the University tries to maintain diversity in admissions.

Harvard’s lawyers have frequently found themselves in the spotlight over the past six months, most notably following former Harvard President Claudine Gay’s congressional testimony in December.

Gay’s legalistic answers to questions about whether calls for the genocide of Jews violate the University’s code of conduct contributed to her resignation less than a month later.

In filling its top legal post, the University must find a person to turn the tide of Harvard’s current legal predicament in addition to the already tall task of representing the richest university in the world.

In interviews with The Crimson, four experts on higher education law and one current university general counsel said Harvard’s recent turmoil could shape the search, increasing the importance of government relations and political experience.

The Key Legal Adviser

Harvard’s legal arm is a major operation.

The University employs 17 attorneys in addition to administrative staff alongside multiple elite law firms contracted by the University for specific cases. Overseeing the entire operation, Harvard’s general counsel is responsible for crafting the University’s legal strategy, serving as an adviser to the president and the Harvard Corporation — the University’s highest governing body — and deciding when to bring in outside counsel.

Since March 1, the position has been held on an interim basis by Eileen Finan, a lawyer who began working for Harvard in 1997 after practicing at the law firm Palmer & Dodge.

The University has established a search advisory committee and engaged the search firm Korn Ferry to select a successor to Lopez, according to a job listing on the National Association of College and University Attorneys’ website.

Former General Counsel Diane E. Lopez announced her departure in November and officially left her post in February. By Courtesy of Kris Snibbe / Harvard University

While the March transition was announced in November, it is unclear how close the University is to selecting its next general counsel. They appear to still be considering new candidates, as the NACUA listing remains live.

While the timeline for selecting the next permanent Harvard president is still uncertain, Joyce P. Jacobsen ’82, who co-wrote a book about university general counsels, said she does not expect Harvard to wait for a new president before installing a permanent general counsel.

“I don’t think they can actually put off that long,” Jacobsen said.

Harvard spokesperson Jason A. Newton wrote in a statement that “the General Counsel search is ongoing, and information on an appointment will be shared once the search is complete.”

Finding the right person to lead the University’s legal team will be no easy task.

Edward Rock, a law professor at New York University who specializes in corporate governance, said the University’s various schools, endowment, and relationship with the government all require different specialized legal advice — making the general counsel role extremely complex.

“In an enterprise the size of Harvard, the chief legal officer is going to have this really complicated, really varied set of responsibilities that ultimately are necessary to advise the president and ultimately to advise the Corporation as well on Harvard’s legal exposure,” Rock said.

According to the job posting, candidates must have previously practiced law for at least 15 years and have experience “within higher education or in an industry of similar complexity.”

Jacobsen said the institution’s pick will likely be an internal candidate, a general counsel at a peer institution, or someone with experience in higher education representation at a major law firm like Sullivan & Cromwell, Ropes & Grey, or WilmerHale.

Louis H. Guard, general counsel for Hobart and William Smith Colleges, said the challenge is finding someone with “a deep, substantive knowledge of a really broad array of legal issues.”

Guard, who co-wrote the book about university general counsels, said that when considering a university’s response to broader issues facing higher education, general counsels have to ask themselves, “Is this a hill that my client is willing to die on for the greater good of all?”

‘Soul Searching’

Harvard’s legal team has previously been at the root of the biggest criticisms levied against the University over the past six months.

The University heavily relied on WilmerHale lawyers and their own former Corporation Senior Fellow William F. Lee ’72 to prepare Gay to respond to lawmakers’ questions about antisemitism in Congress.

A second blow came weeks later, when the New York Post revealed that Clare Locke, an external law firm engaged by the University, threatened legal action against the Post if it published allegations of plagiarism against Gay.

The exchange prompted an internal investigation that later concluded that her work did contain “duplicative language.”

The premature threat increased existing scrutiny on the Corporation and how it handled the allegations. Clare Lock partner Thomas A. Clare wrote in a statement at the time that their letter “responded only to specific passages identified by the Post on October 24.”

More recently, Harvard engaged King & Spalding to advise the University's ongoing response to the House Committee on Education and the Workforce investigation into Harvard.

While the use of outside firms has primarily been credited and blamed for Harvard’s legal strategy, it is the general counsel that oversees their hiring and management.

To the extent that external firms were at fault for bad publicity, decisions made at the general counsel’s level were at least partially to blame.

Former Harvard Corporation Senior Fellow William F. Lee '72 came under scrutiny for his role preparing Claudine Gay for her congressional testimony in December. By Casey M. Allen

David B. Walek, a genetics company general counsel, said that Harvard should consider someone who could “bring some fresh light to the place,” especially in light of the ongoing controversy.

“If I were involved in the search, I would certainly be looking for somebody from outside of Harvard,” said Walek, a former Ropes & Grey partner who did legal work for Harvard.

The University’s job posting for the vacant position also stated that in critical moments, the general counsel “takes on a higher level of participation” in top decisions.

“The General Counsel will be relied upon to provide wise strategic counsel on issues of the highest risk in the legal and political arenas as well as in the court of public opinion across the breadth of the University’s operations,” the posting stated.

Peter F. Lake ’81, an expert in higher education law, said the evolution of a general counsel role from being dedicated to technical legal advice to navigating the court of public opinion has been on display over the past six months at Harvard.

“I would imagine there is a lot of soul-searching going on,” Lake said.

‘A Tenuous Place’

One of the most pressing issues for Harvard’s legal team is handling the subpoenas stemming from the congressional investigation.

Following weeks of back-and-forth between the University and the House committee over requests for internal documents, meeting minutes, and sensitive disciplinary records, the committee issued subpoenas to three of Harvard’s top leaders and gave them a two-week deadline to comply.

While the committee is currently weighing further action beyond the subpoenas, Harvard’s legal team must make its own calculus — all while waiting for a permanent general counsel to be named.

“With the election coming up, there may be a very different constitution of that committee going forward,” Jacobsen said. “So you could imagine the strategy might actually be to do some stalling.”

Facing intense scrutiny from political forces, the University might favor someone with extensive government legal experience in the search process for the next general counsel.

“I think the focus over the last couple of months will probably on a relative basis advantage a candidate with some experience in the political sphere,” Rock said.

Harvard’s ongoing legal battles with the Department of Education and congressional committees are unlikely to end before a new general counsel is appointed, and whoever succeeds Lopez should be prepared to enter the political arena.

“The line between legal and political around all the issues that Harvard’s dealing with right now related to this is razor thin,” Guard said.

“That is a tenuous place for any legal adviser or college administrator to be operating in,” he added.

—Staff writer Emma H. Haidar can be reached at emma.haidar@thecrimson.com. Follow her on X @HaidarEmma.

—Staff writer Cam E. Kettles can be reached at cam.kettles@thecrimson.com. Follow her on X @cam_kettles or on Threads @camkettles.