Chalk and legal talk

As universities continue to develop and merge, Michael Gerrard finds that competition is ripe among education lawyers trying to win a slice of the legal opportunities being created

Most lawyers probably remember university as all musty lecture theatres and cheap beer, but recent developments show that universities and their junior partners, the further education colleges, also provide great business opportunities.

It is definitely an area that is buzzing at the moment and likely to stay that way for some time to come, largely because of decisions made by the present government and its predecessor.

Ministers last week released a White Paper detailing reform in the funding of higher education (HE), all part of a stated aim to see 50% of students progressing to HE.

Any changes are likely to provoke increased work for education solicitors, building on reforms that have been affecting the sector for more than a decade.

Under the previous Conservative regime, further education colleges - of which there are more than 400, providing post-16 education below degree level - were cut free of local authority control and became statutory corporate bodies in their own right.

At a stroke, there were hundreds of potential new clients.

This meant they became their own bosses in charge of their own affairs; similar changes occurred to the polytechnics when they became universities.

In addition, the traditional universities governed by charter found themselves in a more competitive environment, provoking them to flex greater commercial muscle.

Competition for the legal work is keen.

Earlier this month, Birmingham firm Martineau Johnson, a large player in the education field, announced a trio of new instructions from further education colleges.

It won the contracts to provide a full range of services to Barnsley College and City of Bath College.

In addition, it will advise the Pershore Group of Colleges on its joint venture with the Bulmer Foundation to develop its Herefordshire estate as Europe's leading centre for sustainable land use.

At the same time, Pinsent Curtis Biddle announced it had won a tender to be the sole legal adviser to Leeds Metropolitan University, the former polytechnic that boasts 37,000 students and 2,500 staff.

It is this aspect that can often be forgotten.

Far from being just seats of learning, these institutions are in fact multi-million pound concerns which are large employers, property owners and business centres.

They also have a large body of increasingly discerning clients - that is, their students and partners in industry and commerce.

In many cities, the university can be the largest employer alongside the local National Health Service trust, therefore providing great scope for employment specialists and much more besides.

Law firms have seen that college work is a lucrative field, and though several work in the sector there is a handful of really big players, including Eversheds, Martineau Johnson, East Anglian practice Mills & Reeve, City-based Beachcroft Wansbroughs, Addleshaw Booth & Co, and Shakespeares in Birmingham.

Mills & Reeve partner Gary Attle says: 'It used to be the case that colleges could go to the high street practitioner to deal with their affairs.

'But the law surrounding the area has become so complex, they now require lawyers who underpin their legal knowledge with an understanding of the educational environment.'

Though some solicitors claim a 'horses for courses' attitude still exists at many institutions, increasingly they seek firms that can offer them services across the range of their activities.

A recent example of this is Pinsents' new relationship with Leeds Metropolitan University.

Partner Chris Mordue notes that this was part of a growing trend for universities to put legal work out to tender and often to a single firm.

He says: 'Obviously this provides more work to the law firm, but it also helps to develop stronger relations with a client than if you are only advising on one area.'

Whether firms are advising on single issues - some universities have gone the full hog and set up panels - or across the board, there are several hot topics at the moment promising a multitude of billable hours.

Over the past year or so, a whole new area under the title of 'student affairs' has come to prominence.

In an increasingly litigious world where students are being asked to stump up for their education, they are less willing to accept academic or disciplinary decisions at face value.

Paul Pharaoh, a partner at Martineau Johnson, says: 'There is an increased expectation from students as consumers in terms of the quality of provision of education supplied to them and over marks awarded.'

This has led to several challenges that, in some cases, have ended up in the courts, with applicants encouraged by the fact that at present there is little firm case law on the subject.

Mr Pharaoh adds: 'In the past, institutions were not especially troubled by this situation, but now it is increasingly a fact of life.'

At present, there is no standard complaints procedure for students to follow.

However, the government is attempting to standardise matters with the appointment of an independent adjudicator for student complaints, with Eversheds lending its expertise on how to establish the office and its powers.

Naturally, this woe for the colleges has presented several opportunities to their legal advisers; not only are they being brought in to defend actions, they are also looking to head off troubles.

Mr Attle notes: 'Risk management is part and parcel of what we now do, advising our clients to minimise risk and avoid being open to attack.'

This usually involves looking over a college's constitution to make sure that any gaps are filled.

Constitutional reviews are also very much a part of another thriving activity - the spate of mergers and collaborations between institutions.

At the lower level, different institutions are collaborating when it comes to providing facilities or teaching services, providing lawyers with the task of drawing up contracts and agreements.

Beyond such forms of collaboration, many institutions have either merged in recent years or are currently discussing such arrangements.

Successful mergers include that between the University of North London and London Guildhall University, to form London Metropolitan University.

This alliance will be dwarfed by that currently proposed between Manchester University and UMIST (University of Manchester Institute of Science and Technology).

John Hall, Eversheds' education head, says the reasons for this and many other mergers are 'partly a response to funding problems and partly an attempt to be more globally competitive and larger'.

Similar arguments lay behind the recent proposed merger between two University of London colleges, Imperial and University College.

But despite making excellent business sense, these negotiations allegedly foundered on the rocks of opposition among academics.

Experts in the field point out that this is a reason that education work requires a different approach from that of ordinary corporate law.

Mr Mordue explains: 'This is a very specialist area because not only do these institutions have different articles of association and rules than commercial companies, they are very different types of institutions.

'If you were to drop a mergers and acquisitions specialist into this sector, they would struggle to understand things.'

Quite simply, academics do not think like shareholders, and expect their academic freedoms to prevail.

Away from the growing fields of student affairs and merger and collaboration, education specialists are being kept busy with several other issues ranging from advising on intellectual property issues, joint ventures with commercial partners, and those two faithful staples: employment and private finance initiatives.

Having put prospective lawyers through the wringer of jurisprudence, case method teaching and detailed analysis of Donoghue v Stevenson, it is nice to see the education sector giving something back to the profession.

Michael Gerrard is a freelance writer