Office of General Counsel
Welcome to the Office of General Counsel (OGC). The OGC is committed to supporting the educational mission of Bradley University by providing, managing and coordinating all legal services for the University while striving to minimize legal risks and costs.
The OGC provides legal advice and representation to the Board of Trustees, faculty, administrators and staff in their capacity as representatives of Bradley University. OGC represents Bradley University and may not represent individual students, faculty, or staff except when these individuals are named in litigation as a result of actions or omissions within the course and scope of their employment. For personal legal advice, employees and students should consult a private attorney.
The OGC provides comprehensive legal services, including advice on a variety of legal matters such as personnel issues, student affairs, real estate, and risk management, among others. OGC also reviews and drafts policies and contracts, represents Bradley University in administrative proceedings, and provides preventive law training.
The information presented on this website is for informational purposes only and nothing on this website should be construed or relied upon as legal advice. The OGC should be consulted regarding the specific facts and circumstances associated with any legal matter.
Resources
Choice of Law
- Does contract contain language stating it is governed by Illinois law with venue in Peoria County, Illinois?
Capacity
- Is this type of contract consistent with BU’s mission, applicable laws, regulations, policies and procedures?
- Does BU have a history of contracting for this type of good or service?
Default/Breach
- Are events that constitute a default/material breach listed?
- Is there a specific method for providing notice of default/breach?
- Is there an opportunity to cure? If so, what is the time period and it is reasonable?
Effective Date and Termination
- Does the contract specify the month, day and year of when the contract begins and when it ends?
- If the agreement provides for termination at any time prior to the end of the contract:
- Does the agreement allow both parties to terminate? If not, why is only one party permitted to terminate?
- Are circumstances allowing termination clearly identified?
- Is advance written notice of termination required? Contract should require advance written notice and identify the contact for receipt of notice.
- Is there a right to cure (e.g., a period of time to fix the problem) before the contract is terminated?
- Does the agreement provide for payment to the institution for services performed by the institution up to the date of termination on a pro rata basis?
- Does the termination impact other rights and obligations that accrued before the termination? If yes, specify what rights/obligations.
- Does the agreement allow us to cancel the contract in whole or in part without penalty due to non-appropriation of funds or failure of the contractor to comply with the terms?
Insurance
- Do the vendor’s services bring an inherent risk of liability to Bradley University? If so, a Certificate of Insurance from the vendor may be required.
- If a vendor requires a Certificate of Coverage from Bradley University, please contact the Office of General Counsel
Length of the Agreement
- Does the contract have a specific end date or is it renewable?
- Is the renewal/extension automatic such that the agreement provides for renewal or extension unless we provide notice of non-renewal/extension by a specific date? To avoid inadvertent renewal of a contract because notice of non-renewal was not timely given, consider a clause that provides for termination unless both parties or only Bradley University provides notice of intent to renew.
- If renewal/extension is not automatic, does it require mutual consent of both parties to renew or extend the contract?
Liability Clauses
- Indemnification and Hold Harmless- Does the contract include limited indemnification language? (e.g., Educational institution agrees to hold Party X harmless to the extent that any of the liability, claim, loss or damages arises out of the negligent act or omission of any employee, officer or agent of the educational institution, while acting in the scope of their employment; Avoid this language: Educational institution agrees to defend and indemnify Party X for all claims and losses arising out of the contract)
Miscellaneous Remedies
- Strike any clause which suggests that the prevailing party shall be entitled to recover court costs and attorney’s fees in the event of litigation. The law that applies to the type of lawsuit that is brought will determine whether a party can recover attorney’s fees and costs.
- Strike any clause which suggests that Bradley University agrees to be sued for specific performance. This remedy is a form of equitable relief where a court orders a party to a contract to perform what the party has promised to perform.
Parties
- Ensure that Bradley University is identified as a proper party by using: “Board of Trustees of Bradley University” or “Bradley University”
- Do not use an individual’s name (e.g., Professor John Doe)
- Provide a point of contact for each party (name, address, email, telephone)
Signature Authority
- Does the person signing on behalf of Bradley University have written delegated signature authority for this type of agreement? The Agreement should state that the individual signing on behalf of both parties has authority to sign.
- Signing without appropriate delegated authority or without obtaining either Board or administrative approval, where required, may lead to personal liability for performance of the contract and for any damages.
Subject Matter
- Is the contract language clear as to what is expected and specific in the description of who does what, when, where, how and the cost involved.
- Have any addenda or exhibits further describing the subject matter been properly labeled, identified clearly and consistently, and attached to the contract?
- Does the contract clearly state any and all per diem expenses or travel expenses that comply with Bradley University rules?
- Does the contract specify the time, place and method of payment?
- Does the contract involve access to secure information (PII, education records, PCI, etc.) such that specific information security and confidentiality provisions should be considered?
* Whether a document is called an Agreement, a Letter of Agreement, a Memorandum of Understanding (MOU), a Memorandum of Agreement, a Letter of Understanding, a Purchase Order or any other obligation, if it creates legal obligations on the part of Bradley University and another party, it is a binding CONTRACT.
The attorney-client privilege preserves the confidentiality of communications between lawyers and their clients. The privilege protects individuals and institutions. Therefore, the communications that Bradley University administration, faculty and staff have in confidence with the Vice President of Legal Affairs and General Counsel, and certain outside counsel, for the purpose of seeking legal advice concerning Bradley University legal matters, are protected from disclosure to opposing parties by the attorney-client privilege. These communications are privileged whether they are oral, written or electronic.
For the attorney-client privilege to exist, the following are required:
- A communication between the attorney and the client;
- The communication must be confidential;
- The client must have sought the advice of the attorney, in his/her capacity as an attorney on the subject of the University’s rights, obligations or liabilities;
- The purpose of the communication is to secure either an opinion on law or legal services or assistance in some legal proceeding.
Some Practical Tips:
- Keep conversations with your attorney confidential to protect the privilege. If the substance of attorney-client communications is disclosed to persons outside the University – or even to persons within the University who are not directly involved in the matter – the privilege may be extinguished. Your communications with Bradley counsel should never be discussed with anyone outside Bradley, including family members or friends; within the University, they should be discussed only with persons who have responsibility for the particular matter.
- Beware of forwarding email strings and sharing attorney-client privileged communications. As the client, you hold the privilege, but if you voluntarily disclose our communications (e.g., “Our General Counsel told us…”), the privilege is waived. By forwarding an email to a third-party (anyone other than your lawyers and staff with a “need to know”), which contains the University attorney’s advice on a matter, the privilege is waived.
- Consider whether an email to counsel should be marked “Privileged and Confidential” or “Attorney Client Communication – For Purpose of Legal Advice” by the sender. While this marking is not essential to bring the communication within the attorney-client privilege, it can help to protect the communication from compelled disclosure in litigation. Labeling something “privileged” does not, however, make it privileged; it depends on whether the communication is for the purposes of obtaining or receiving legal advice.
- Don’t assume that just copying your lawyer makes an entire communication privileged. Communications between a lawyer and client are only privileged if they relate to legal advice. If legal advice is truly being sought, the email should be to the lawyer as the primary recipient (not just cc). Communications seeking only business advice are not privileged. Merely including someone who has a law degree or is a lawyer will not make the communication privileged. The attorney must be employed by the university and acting as such in the course of the communication.
If you have any questions concerning the attorney-client privilege, please contact the Office of General Counsel at 677-3150.
The Office of General Counsel can provide training on a number of topics, including but not limited to:
- Classroom Management
- Contracts
- Employment/Personnel (including recruitment and hiring, discipline, performance evaluations, etc.)
- Disabilities (students and employees)
- Child safety
- Clery Act
- Contracts
- Discrimination/Harassment
- Ethics
- FERPA/Privacy
- FMLA
- Information Security
- Sexual Harassment
- Title IX
- Tenure
Please submit an inquiry if you are in need of training on a topic that is not on this list.
Need Help? Questions about the content should be directed to:
Human Resource Department at 309-677-3223. Technical questions should be directed to the Technology HelpDesk at 309-677-2964.
Additional Links
- Ethics Hotline
- University Policies
- Department of Human Resources
- Student Handbook & Standards of Conduct
- Swords Hall 203
- (309) 677-3151
- ekastberg@bradley.edu
- Monday – Friday
- 8:00 a.m. – 5:00 p.m.
