The Nonprofit FAQ

Can attorneys serve on boards?

Don Griesmann provided these notes in NONPROFIT (see http://www.rain.org/mailman/listinfo/nonprofit) and other lists on March 10, 2004: Here are some citations and thoughts. Individual Ethics Opinions, American Bar Association, Formal Opinion 98-410: "Lawyer Serving as Director of Client Corporation" The Model Rules of Professional Conduct do not prohibit a lawyer from serving as a director of a corporation while simultaneously serving as its legal counsel, but there are ethical concerns that a lawyer occupying the dual role of director and legal counsel should consider. The lawyer should reasonably assure at the outset of the dual relationship that management and the other board members understand the different responsibilities of legal counsel and director; understand that in some circumstances matters discussed at board meetings with the lawyer in her role as director will not receive the protection of the attorney-client privilege; and understand that conflicts of interest could arise requiring the lawyer to recuse herself as a director or to decline representation of the corporation in a matter. During the dual relationship, the lawyer should exercise reasonable care to protect the corporation's confidential information and to confront and resolve conflicts of interest that arise. From the discussion of these ethical concerns, the Committee derives general guidelines that a lawyer, once having agreed to serve on the board of a corporate client, should follow in order to minimize the risk of violations of the Model Rules. (http://www.abanet.org/cpr/ethicopinions.html) As examples of consideration, see the New Jersey Court Rules of Professional Conduct (and your own state) -- "Organization as the client" http://www.njlawnet.com/nj-rpc/rpc1-13.html Membership in Legal Services Organizations - http://www.njlawnet.com/nj-rpc/rpc6-3.html ABA Ethics 2000, proposed rules, membership on the board of a legal services program - http://www.abanet.org/cpr/e2k-rule63.html and http://www.abanet.org/cpr/e2k-report_home.html ABA Ethics 2000, proposed rules, attorney serving on the board of organization seeking law reform - http://www.abanet.org/cpr/e2k-rule64.html For 27 years I worked in legal services for low-income individuals, families and communities. One-third of the board had to be attorneys practicing law in that jurisdiction. Frequently the officers were attorneys. While they were a mixed bag from excellent and committed board members to unknowing and uncaring members. All the attorney board members had to be selected by Bar Associations. The idea of selecting members who shared the mission was a hit and miss proposition. The point here is that while each attorney could and many did voice an opinion about the law all of them knew clearly they were not offering legal representation. On several occasions I had a judge serving on the board which raised other potential problems. We did appear in front of those judges. Even when I raised judicial rules, they declined following them. Each had a deep passion about legal services for low-income people. The NJ Code of Judicial Conduct - Commentary: The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which he or she is affiliated to determine if it is proper to continue a relationship with it. For example, charitable hospitals are frequently in court. Similarly, the boards of legal aid organizations make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication. http://www.judiciary.state.nj.us/rules/appendices/app1_jud.htm#P151_16304 Donald A. Griesmann, Esq., is a consultant with community-based and faith-based Organizations in Ventnor NJ Posted 3/22/04 -- PB