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February 28, 2020 - Image 2

Resource type:
Text
Publication:
The Michigan Daily

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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 arjunt@umich.edu.

2 — Friday, February 28, 2020
The Michigan Daily — michigandaily.com
News

TUESDAY:
By Design
THURSDAY:
Twitter Talk

FRIDAY:
Behind the Story

WEDNESDAY:
This Week in History

MONDAY:

Looking at the Numbers

B E HIND THE STORY

Every Friday, one Daily staffer will give a behind-the-scenes
look at one of this week’s stories. This week, LSA freshman
Julia Forrest on her story “VP Mike Pence holds rally in Troy
ahead of Michigan Primary”:

“I chose to cover this event because I’ve always been
fascinated by campaign rallies and how politicians or those
who are running for office speak to and interact with their
supporters. It was interesting to see how the Vice President
spoke to his and the President’s fan base as they hit the
campaign trail for their re-election campaign. I also thought
it was interesting to hear in-person the speaking tactics the
Vice President uses to get his supporters excited and active in
the rally. I also think it’s important to hear from our political
leaders, no matter what party they’re from, and to hear
supporters of those parties and understand why everyone
supports the types of politics that they do.”

OLIVIA CELL/Daily

QUOTE OF THE WE E K


”In a world where we value free speech and we value
diversity, I think I can disagree with the owner of a business but still
do business with the business. So, I don’t think those things should
enter into investment decisions at all... So, the student voice is
important, but it doesn’t have a big input into the endowment.”

U-M President Mark Schlissel on letting political beliefs determine the University’s investment
decisions during The Daily’s monthly interview this week.

Who is WilmerHale, the firm hired
to investigate Philbert allegations?

The organization famously represented Duke University in allegations of rape against
lacrosse players and has worked for Harvard and U-M in cases on affirmative action

ARJUN THAKKAR
Daily Staff Reporter

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