Beware potential pitfalls of dual roles for board member attorneys

• Date: 01 August 2017
• DOI: http://doi.org/10.1002/ban.30505
• Published date: 01 August 2017

Editor: Jeff Stratton

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Beware potential pitfalls of dual roles

for board member attorneys

The wealth of knowledge and expertise that at-

torneys have to offer make them prized as non-

profit board members. After all, the law is compli-

cated and lawyers are expensive. Having someone

that can offer pro bono or discounted advice into

even simple legal matters—for example, how to

attain a zoning variance for the construction of a

new headquarters—is of great value to nonprofits.

But for the board member attorneys and the

nonprofits alike, such situations present a slew

of complications, and it’s best to understand how

they will be addressed before nonprofits avail

themselves of this valuable resource, according

to Michele Berger, an attorney at San Francisco–

based NEO Law Group.

In presentations on this topic given in venues

such as the Bar Association of San Francisco,

Berger’s firm has laid out some of the most signifi-

cant considerations for practicing-attorney board

members thinking of serving in a legal capacity for

their organizations. They include:

• Role confusion. According to Berger, a board

member attorney who offers an opinion on an

issue during a board meeting has to establish

whether he’s communicating as a board member

or as a lawyer for the nonprofit. There are two

main concerns here: The opinions offered as a

board member may be received with unwarranted

and unspoken deference if the rest of the board

considers it legal advice, and your legal advice

offered as a lawyer may be received without appro-

priate consideration if the rest of the board consid-

ers it the opinion of a board member.

• Loss of independence. According to the

firm, the dual role of board member and attorney

could potentially compromise the member’s inde-

pendence of professional judgment. For example,

her legal opinion or advice might be clouded if

she is reviewing an action already taken where

she participated in the vote or had a preferential

viewpoint from a business perspective. Having a

blanket policy to address this issue would be help-

ful, Berger said.

“For actions taken as a director, it is helpful to

emphasize the duty of loyalty, and to make sure

the nonprofit has a good conflict-of-interest policy

to navigate situations. For actions taken as an at-

torney to the nonprofit, having a policy at the out-

set not to review actions as an attorney that the

attorney director voted on as a director may help

to avoid a loss of independence,” she told Board &

Administrator.

August 2017 Vol. 33, No. 12 Editor: Jeff Stratton

continued on page 4

INSIDE THIS ISSUE

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to boost diversity 2

Get board buy-in on software

expenditures by showing impact 3

Use questions when drafting

board meeting agendas 5