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The Harvard Law School faculty approved a Conflict of Interest Policy in Spring 2012. Pursuant to the Policy, from July 2012 on, HLS faculty members must annually report to the Law School Dean specified financial outside activities and/or interests and specified pro bono work related to their research or teaching. Faculty may choose to make their reports public or to share them with their students through their course web sites; they are not required, however, to disclose their reports and may instead elect to disclose activities related to their research and teaching in specific publications and/or with students in class. The Policy is subject to change from time to time as voted by the HLS Faculty.
This policy requires each faculty member (FM) to keep track of, report to the Dean, and disclose to readers, students and audiences the FM’s material outside financial and closely related interests relevant to the FM’s writing, teaching and speaking activities (HLS activities). This policy attempts to balance the competing goals of preserving public confidence in the general independence and credibility of research and teaching by HLS FMs, on the one hand, with respecting legitimate privacy and autonomy interest of FMs and not discouraging activities that are beneficial for HLS and the public, on the other hand.
Who is covered? The policy covers all full-time HLS faculty, including professors, instructors and anyone with a teaching appointment. Visiting faculty who teach continuously at HLS for more than six months should consult with the Dean regarding applicability.
What interests are covered? Interests generally covered include serving as counsel before a court; delivering a written opinion; paid service as counsel, expert, or board member; paid government service, including as a clerk; being paid to speak or write; and any ownership interest. An interest is generally relevant if it is related to an opinion expressed by a FM in an HLS activity and a reasonable member of the intended audience would consider it important in determining how much weight to accord the opinion. Further guidance for FMs on what interests are covered is available from the Dean’s office and a standing HLS conflict of interest (COI) committee.
Excluded Interests. Excluded interests are passive collective investments, diversified holdings, interests that are not related to a FM’s HLS activities, ownership interests below $30,000 and other financial interests below $10,000 per year.
Uncompensated Activities. Because pro bono and other uncompensated outside activities often do not raise the same kinds of conflicts as financial interests and compensated outside activities, uncompensated activities are generally not covered. However, because serving pro bono before a court is an activity that presents a risk that a FM’s audiences would consider it important in deciding how much weight to accord the FM’s statements or writings on the case or closely related matters, a FM serving as pro bono counsel in a court proceeding is covered if material and relevant to HLS activities.
Family Interests. A FM’s covered financial interests and compensated outside activities include those of a FM’s spouse and dependent children living in the same household.
Period Covered. Current interests are to be disclosed from the time the policy is approved, and disclosure of those conflicts should generally be maintained thereafter for four years. Current interests arising after the policy is approved and within four years prior to a FM joining HLS are generally covered; new faculty should consult with the Dean regarding applicability.
How are interests to be disclosed? Disclosure may take any reasonable form, and should include brief identification of relevant issues, matters or clients (i.e., sources of payment or owned entities), and approximate dates (which may include ranges). HLS will support a web page to disclose covered interests. FMs can elect to make this web page available to the public, and can cross-reference the web page in publications, testimony or in class.
In Class. FMs should refer students to disclosures of potential conflicts of interest relevant to material being taught. Where there is a strong risk that a reasonable member of the class would accord less weight to the FM’s opinion on a matter being taught as when a FM worked directly on a case being taught, FMs should use reasonable efforts to disclose potential conflicts in class at appropriate times.
Confidentiality. FMs are not required to disclose information subject to confidentiality obligations. FMs should disclose what may be disclosed consistent with those obligations, including (for example) generic descriptions of the source of the conflict (e.g., “an investment bank”).
Grouped Disclosure. FMs engaged in a large number of similar outside activities may, in lieu of specific disclosures for each matter, use grouped disclosure, i.e., disclose a general description of the class of issues and nature of matters by types of clients.
What is to be reported to the Dean? In addition to disclosure to audiences, FMs must report covered interests to the Dean, on a confidential basis, through computer-based reporting system, as well as whether the FMs have relied on confidentiality limitations or used grouped disclosure, and additional information required to be reported by the Harvard University Financial Conflict of Interest Policy, specified in guidance available from the Dean’s office. Additional reporting is required upon reasonable inquiry by the Dean.
What else does the policy require?
Management by the Dean; Sanctions; Evasion. If, after notice to and an opportunity for the FM to be heard, the Dean, after consultation with the HLS COI Committee (such consultation to be without identifying the FM if requested by the FM), considers further action is necessary to manage a potential conflict of interest, the Dean may impose such conditions on the FM’s participation in HLS activities as the Dean deems appropriate. Willful violations shall result in such sanctions as the Dean deems warranted, taking into account the degree of intent and harm, other acts of noncompliance (if any), the need for deterrence, and such other factors as reason and justice may require. Deliberate efforts to evade the policy are violations of the policy.
Students. FMs may not assign students or fellows to projects in which the FM has a financial interest, but FMs may generally hire students on such projects. However, except with permission of the Dean: FMs may not hire students for outside projects in which a FM has a financial interest if the students are currently enrolled in a course where grades are not based solely on blind-graded exams, or hire an SJD for such projects if the FM will determine whether the SJD receives his/er degree. FMs must disclose relevant covered interests in such projects to students so hired.
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