Being Smart About Lawyer-Board Members

Non-Profit Business Advisor recently published a piece to make non-profit organizations aware of the potential problems related to having a lawyer serve on the board. Back in 2016 I provided similar information on ArtsHacker.  I wanted to revisit the topic due to how easy it is for both the lawyer/board member and the rest of the organization to misunderstand the role the lawyer is fulfilling

The general aim of both pieces was to emphasize the need to distinguish the context in which advice and comments are being made.

Some of the questions both raise are:

When the lawyer board member makes a comment, is it a legal opinion or personal opinion? Are people according the member’s personal opinion more deference due to their profession?

When they provide their professional opinion, could it be clouded by the fact they earlier advocated or voted for a related course of action?

Is a conversation covered by attorney-client privilege?

Loss of Attorney-Client Privilege. Are you communications with the rest of the board protected by the attorney-client privilege? If it’s clear that the communications are to be attorney-client communications, they should be protected by the privilege. However, such protection may be lost if it’s not clear that you are communicating only as a lawyer or if the communication is recorded in minutes to which other persons have access.

If a lawyer represents a statement as professional advice, do they actually have the specialized knowledge and experience to offer that advice?

Actually, as I notice the strong similarities between my ArtsHacker post and the recent Non-Profit Business Advisor article, I realize that both were drawn from lawyers at the same law firm so either of the links here represent a good resource for exploring the nuances of this topic more carefully.