ADVICE TO NEW MUSIC TEACHERS
LEGAL ADVICE:
HARD QUESTIONS WE HATE TO ASK with
REAL TIME EXPERT ANSWERS AND ADVICE
No one likes to ask sensitive and personal question about legal issues and talk about the reality of major legal problems that do occur in Tennessee schools. It is OUR hope that none of you reading this, would ever need this advice. Unfortunately, the odds are too great that even the most honest, sincere, and dedicated teachers could find themselves accused of a crime they didn’t commit or find themselves in a very difficult legal situation for any reason. If that happens to you, what would you do?
TMEA was so lucky to find the perfect person to give us “sound” legal advice - an experienced lawyer who is a former band director with two degrees in music education and who continues to perform regularly. He agreed to answer a few basic questions with the help of another excellent lawyer in his firm. The legal advice TMEA members are getting comes from:
- Robert “Rick” R Carl, has both a bachelors and masters degree in music education as well as over ten years experience teaching instrumental music in Knox County. In 1996, Carl received his J.D. in law from the University of Tennessee and has been a practicing attorney with the firm Baker, Donelson, Bearman, Coldwell and Berkowitz since 2000. His practice areas include general civil and commercial litigation, and bankruptcy.
- Katherine Knight, who has her J. D. degree from Vanderbilt University, is also an attorney with Baker, Donelson, Bearman, Caldwell, and Berkowitz and assisted in the preparation of the responses to the questions in this interview. Formerly, she practiced with the Tennessee Attorney General’s Office, representing Tennessee’s higher education institutions, administrators, and faculty in employment lawsuits.
Here are several hard questions provided by TMEA and the unedited answers from Richard Carl.
TMEA: Thank you for agreeing to provide your advice to Tennessee music educators. In today’s times, it is important that we openly address the concerns that so many of us worry about, try to protect against, and pray will never happen.
First, do you have any general advice for music teachers in schools (dealing with students under 18) to protect them from anything ranging from embarrassing situations to legal actions regarding their interaction with their students?
RC: Make sure you are only ever acting in your “official capacity” as a teacher. Do not act in your “personal capacity,” i.e. asking students for personal favors, becoming friends with them outside the context of the classroom, etc. You must avoid compromising situations and even the appearance of impropriety at all costs. Consider joining a professional teachers’ association that affords you liability insurance (which could cover anything from negligence to criminal acts).
If any incidents occur, the best defense is documentation. Immediately document what happened or what was said, and the actions you took. Find witnesses immediately (for example: if an accident occurs on a field trip, have people who witnessed the accident write down what they saw).
TMEA: Are there any specific situations that you feel music teachers should be especially careful of that could put them in jeopardy or in a potentially damaging situation? How can they protect themselves?
Teachers are required to demonstrate “reasonable care” towards their students. They are responsible for the physical and emotional safety of students, including the students’ civil rights. Music teachers are often placed in a more precarious situation because of additional avenues of liability: music contests, festivals, being responsible for the students for longer hours than other teachers, i.e. after school hours or 24/7 on out of town trips, when there is less supervision from the principal or administrators. Make sure that you plan ahead, and have rules and instructions in place prior to leaving school so that parents, students, and administrators know what is expected.
If you are giving one-on-one instruction, particularly after school when there are substantially fewer people around, make sure you are in a well lit classroom with the door open. Getting to know the parents of your regular students will also protect you. Never accept or admit liability under any circumstances.
TMEA: How would a music teacher who has had no previous legal dealings receive legal advice and secure legal counsel. What would be an estimate of the cost to retain legal counsel?
RC: Again, a professional teachers’ organization is a good friend to have. Often, such organizations not only provide their members with liability insurance, they also provide free legal assistance or attorney referral services. If you are not a member of a professional teachers’ association, and/or your association does not provide legal assistance, you may turn to the attorney referral service of your local Bar Association. You are much more likely to receive a referral to an attorney whose expertise will suit your needs, as opposed to choosing one from the phone book.
If you have a general question, your local Bar Association may also provide a free dial-a-lawyer or general advice hotline. If you have a civil rights or criminal issue, you may qualify for Legal Aid or a public defender depending on your income level. Estimating the cost of private legal counsel is difficult because it varies widely depending on the particular problem. Most attorneys provide a free initial consultation, and can estimate a cost for you at that time.
TMEA: Do you have any advice on how a music teacher can make a determination as to how well a lawyer would be able to represent them? Is there a way to check credentials, evaluate experience, or review effectiveness of a legal person being considered?
RC: WWW.Martindale.com is a compendium of attorneys organized by location which contains useful information such as practice areas, representative clients, and, in some instances, a rating. Peer Review Ratings attest to a lawyer's legal ability and professional ethics, and reflect the confidential opinions of members of the Bar and Judiciary.
The General Ethical Standards Rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities. The General Recommendation Rating for ethics is:V - Very High. A lawyer must receive a General Ethical Standards Rating of “V” before his or her review can proceed to the next step.
Legal Ability Ratings take into consideration the standard of professional ability in the area where the lawyer practices, the lawyer's expertise, and other professional qualifications. If a lawyer's practice is limited or specialized, Peer Review Ratings are based on performance in those specific fields of law. Legal Ability Ratings are:
- C - Good to High
- B - High to Very High
- A - Very High to Preeminent (Must have been in practice more than 10 years to qualify)
When both categories of Peer Review Ratings are confirmed, a lawyer receives a CV, BV or AV Rating.
TMEA: Are there any on line web sites that will help direct music educators regarding their own rights whenever they are accused of inappropriate action?
RC: I would discourage reliance on any “on-line” legal advice as there is usually no way to gauge the validity of the information. Every situation turns on the facts of that particular instance, laws can be different in each geographic locale, and courts can interpret the laws differently. The best way to determine your rights is to follow the advice outlined above and contact an experienced attorney in your own jurisdiction.
TMEA: At what point would the school system’s legal counsel come to the defense of an accused teacher and at what point would that teacher need to secure his/her own legal defense?
You should never assume that a school will defend your actions. If the situation is a case of simple negligence, you will likely be immune from liability, but it is worth consulting an attorney nonetheless. While a school or school board may be liable for a teacher’s negligent acts, it is not liable for a teacher’s reckless acts. There may be a difference of opinion as to whether your actions were negligent or reckless.
More importantly, if the accusation involves sexual abuse or some other criminal or unconstitutional conduct, the school, administration, and school board may actually face liability if they are deliberately indifferent to investigating a student’s or parent’s accusation. The school’s counsel will likely advise them to investigate the incident fully. While the school’s investigation may reveal no wrongdoing on your part, it will not hurt you to have legal representation to protect your interests.
TMEA: How do you suggest a music teacher, who has been accused of a questionable activity, deal with the media? Should they take advantage of the media to announce their innocence or take the safe way out and say nothing?
RC: Anything you say can and will be used against you. “No comment” or referring inquires to a designated spokesperson is the only way to deal with the media, no matter how badly you want to defend yourself or have the truth presented.
TMEA: Thanks, Rick, and to you also Katherine, for your valuable advice that will be very helpful to music educators in Tennessee.
A note about the law firm: Baker Donelson's Knoxville office was established in 1957 when Senator Howard Baker and Bob Worthington opened a Knoxville office of the firm that was then Baker & Baker. With more than 20 attorneys, the team in Knoxville represents national and regional clients in complex corporate and litigation matters. The transactional work includes commercial lending and real estate, securities, business and individual wealth management and planning, corporate, government relations, public utilities, environmental law and mergers and acquisitions. Baker Donelson maintains offices across Tennessee, Alabama, Mississippi, Louisiana, Georgia, Washington D.C. and Beijng, China.