The University Insider is The Daily’s first faculty and staff-oriented newsletter. This weekly newsletter will give U-M faculty and staff the ability to see the most important issues on campus and in Ann Arbor — particularly those related to administrative decisions — from the perspective of an independent news organization. It will also provide a better understanding of student perspectives.
When University Provost Martin A. Philbert was placed on administrative leave on Jan. 21 following allegations of sexual misconduct, the University hired WilmerHale, a law firm based in Washington, D.C., to investigate the claims against him.
According to a letter of engagement contracting WilmerHale, obtained through a Freedom of Information Act request, no attorneys at the firm who have previously represented the University will be working on this investigation. In addition, the contract explicitly states the firm is not contracted to defend Philbert or the University should any individual pursue a lawsuit against the University.
“Our acceptance of this engagement does not involve an undertaking to represent the University or its interests in any other matter,” the letter reads. “Our Firm will not undertake any new matters for the University during this engagement, nor will our Firm undertake any matters involving the defense of any potential claims that are related to the allegations about Dr. Philbert.”
The letter notes the firm will support the University in regard to legal advice.
WilmerHale is the resulting firm of a merger between Boston-based law firm Hale and Dorr and the Washington, D.C.,-based firm Wilmer Cutler Pickering. Several individuals at the firm have prior experience in government, including former FBI Director Robert Mueller. While WilmerHale has represented corporations across the globe, the firm has often provided legal support to institutions of higher education, representing colleges and universities in lawsuits, providing legal advice and counseling and, as in the current case with the provost, serving as an external investigator for internal concerns at colleges or universities.
Partners at WilmerHale involved in the investigation did not respond to the Daily’s request for comment in time for publication.
David Moran, clinical professor of law at Michigan Law School, said WilmerHale is considered one of the most prestigious, well-respected law firms in the country and graduates at Michigan Law School often hope to work there. Moran explained why the University would choose to hire an external firm to investigate the allegations against Philbert.
“The last thing you want to do if you have (an) investigation of a very high ranking member of the administration is to conduct an internal investigation that runs the risk of being called a whitewash,” Moran said. “Anytime you have a large organization investigating itself, you are likely at the end of the day to have detractors of the investigation who will say, ‘Well, the powerful people being investigated prevented a real full investigation,’ so if you want to convince people that you’re doing a real independent investigation, you need to get an outside counsel.”
WilmerHale’s predecessor Wilmer Cutler Pickering has worked with the University of Michigan in the past. In the landmark U.S. Supreme Court cases Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), Wilmer Cutler Pickering defended the University against two students who filed suit after they were denied admission to LSA and the Law School. The students alleged they weren’t accepted because the University’s admissions policies favored applicants from certain minority groups. The Supreme Court ultimately upheld the consideration of race as a factor in the college admissions process.
WilmerHale has also defended Harvard University in an affirmative action case, in which students denied admission to the school argued the consideration of race in Harvard’s admissions policies hurt Asian American applicants.
The firm also has experience representing institutions of higher education in situations involving controversial allegations of sexual assault levied against students.
WilmerHale touts its work on the matter on its website, writing that following the “improper indictment” of members of Duke University’s lacrosse team in 2006, the firm was responsible for “conducting an internal review for the board and helping the University address follow-on civil litigation.”
Shortly after a student at North Carolina Central University accused three Duke University men’s lacrosse players of raping her at a party in 2006, prosecutor and former Durham County District Attorney Michael Nifong, who was pursuing the case against the lacrosse players, resigned and was disbarred for violating rules of professional conduct and deliberately withholding information. Partners at WilmerHale then joined Duke’s defense team and helped the school reach a settlement with the students. The partners left the case in 2011 to allow local legal firms to take charge of the defense.
Beyond representing institutions of higher education in lawsuits, the University previously worked with WilmerHale on a patent matter in 2014 and 2015, according to University spokesman Rick Fitzgerald.
“Attorneys in WilmerHale’s office in Boston helped U-M on a patent matter, from May 2014 to October 2015,” Fitzgerald wrote in a statement to the Daily.
An October 2018 panel titled “How to navigate a Me Too investigation” at the fifth annual Global Investigations Review provides a look at the approach WilmerHale may follow in investigating Philbert. WilmerHale partner Brenda Lee discussed the ideal time for an institution to begin an external investigation as well as the importance of remaining neutral during the process.
“When we are hired to conduct a factual investigation, our work is impartial,” Lee said. “That’s true across all types of investigations but is especially important when dealing with such a sensitive topic like sexual misconduct — you have to see where the facts take you.”
University President Mark Schlissel released a statement on Tuesday to update students and faculty on the work the University is doing in response to the allegations against Philbert and allegations of sexual misconduct against the late Robert Anderson, former team physician of the University of Michigan.
Schlissel emphasized the University is working to support those who have been affected by offering free counseling services and encouraging anyone with additional information or perspectives to come forward and report them on a hotline. According to the statement, the University will also be working with an external firm to investigate the allegations against Anderson.
“First, through an independent, external investigation team, the university will conduct an unflinching review of the facts – wherever they may lead – and will then provide to the public a full accounting of the harms caused to former patients by Anderson as well as any institutional failings that allowed him to keep practicing,” Schlissel wrote. “We promise to fully respect the privacy and confidentiality of witnesses as we do this.”
Reporter Arjun Thakkar can be reached at email@example.com.