Academic journal article Academy of Educational Leadership Journal

Client or Student

Academic journal article Academy of Educational Leadership Journal

Client or Student

Article excerpt

ABSTRACT

Discussions between instructors and students occur in and outside the classroom. These discussions may involve areas of law, accounting or tax. The student may be seeking the instructor's assistance with a specific personal problem or issue that could be interpreted by the student as professional advice from the instructor rather than academic instruction. It is important for the instructor to be aware of this potential dual role. There is a growing trend towards litigation against college professors.

INTRODUCTION

Attorneys that provide instruction at institutions of higher education in the legal field address a variety of topics and issues with their students. Discussions between instructor and student regarding legal issues may expand outside of the classroom setting and not be germane to the topics addressed in the academic environment. The diversity of issues may be more emphasized in the basic business law course which is usually classified as a sophomore course and is a pre-requisite for future courses. In addition to attorneys, these discussions may occur between students and professors in other fields such as accounting or tax.

The role of the instructor is to provide information and promote student development from an academic perspective. Many of the aforementioned discussions take a personal turn towards the student's individual circumstances inside and outside the classroom and most often occur in the instructor's office. The student seeks out the instructor because of his or her knowledge regarding the personal issue that the student is addressing and because that instructor may be a licensed legal or accounting professional. It is important for the instructor to be cognizant of this potential dual role. At what point in the discussion with the student does the relationship arguably switch from being one of an instructor to that of a licensed professional providing legal, tax, or accounting advice? Is it possible for the instructor to be liable for malpractice if the wrong advice is given or all of the possible issues are not addressed? Did the instructor mention the statute of limitations, doctrine of laches, or confidentiality of all the information relevant to the issues that were presented by the student?

Regarding legal professionals, the inquiry must obviously focus on whether an attorney/client relationship was established between the attorney and the student, carrying with it all of the fiduciary responsibilities that an attorney has toward a client. It is imperative that the instructor/attorney recognize the cost of time and money involved in the litigation of such claims. The effect of the student simply alleging the existence of an attorney/client relationship may very well keep the case in litigation for a lengthy period of time while effectively avoiding the appropriate dismissal motions utilized in the pretrial process.

Similar issues potentially are present regarding tax or accounting advice provided by an instructor. The remainder of this article focuses on the issues involved regarding advice given by business law professors to students. To date, there are no cases on point involving student lawsuits against professors for malpractice based on professional advice in other fields such as accounting or tax, for example. However, there is a general growing trend toward litigation against college professors. This trend should cause concern for all disciplines regarding advice provided to students. The American Association of University Professors has recognized this issue:

There has been in recent years a steady growth in lawsuits filed against faculty members over the discharge of their professional responsibilities. Legal actions have been initiated by colleagues, by rejected applicants for faculty positions, by students, and by persons or entities outside the academic community. Litigation has concerned, among numerous issues, admissions standards, grading practices, denial of degrees, denial of reappointment, denial of tenure, dismissals, and allegations of defamation, slander, or personal injury flowing from a faculty member's participation in institutional decisions or from the substance of a faculty member's research and teaching. …

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