Reasons to have - and reasons not to have - an attorney on the board

"We should have an attorney on the board." It's conventional wisdom we've all heard. We expect that an attorney would bring legal expertise (so we won't thave to pay a lawyer) and that she'll have a skill set, personality, and community stature that would benefit our organization. Attorney Mark J.Goldstein of Milwaukee shares some thoughts . . .

Not all attorneys are wise, expert, facilitative, financially generous and well regarded. (You knew that!) With more than one million lawyers and 196 law schools in the United States, it may be hard to find the Abraham Lincoln's and Atticus Finch's of the profession. As a result, and because a board's success depends upon its gestalt as much as the traits of its individual members,boards should think a bit about the contributions an attorney might make:

Advantages of having an attorney on the board

1. Professionalism, conscientiousness, attention to detail. Notwithstanding all the lawyer jokes, attorneys are learned professionals. They are typically detail-oriented, conscientious, and risk-averse. Many are citizens and activists committed to doing the right thing (admittedly a fluid concept). Such an attorney is an asset to any board.

2. Legal knowledge and skills. Attorneys are trained in law school to take in legal and factual information, to analyze that information, and to make recommendations based upon fact, law, financial risk, and other factors. There are many instances where -- short of serving as the organization's attorney -- this point of view can be very helpful.

Disadvantages of having an attorney on the board

1. The wrong specialty. The constantly increasing rules and regulations mean that the law is far more specialized than ever before. How helpful will an intellectual property attorney be with respect to nonprofit lobbying rules? What might a real estate attorney contribute to a discussion on responding to allegations of harassment? The attorney herself may not know what she doesn't know.

2. The "smartest guy in the room" phenomenon. The good traits of attorneys (such as the ability to form a convincing argument) may compel other board members to give unreasonable weight to the attorney's point of view, and other board members may even feel that to disagree is to risk legal exposure. The attorney himself may feel a need to be the expert, or to imply that his way is the only legal way.

A good attorney board member will acknowledge the boundaries of her expertise and defer to outside counsel on issues beyond her own areas of knowledge.

3. Serving two masters, and over-legalizing issues. More common than some might think, an attorney might encourage the organization to hire his firm or push for a position that benefits his firm, such as taking a stance that leads to costly litigation as opposed to working creatively to avoid litigation. In other cases, an attorney may insist on (paid) legal review of documents for which such review is unnecessary. Such actions can be done with the best of intentions, but the attorney may have prompted the organization to take a position that is justifiable in a strictly legal sense but not in the organization's financial or other best interest.

Three tips on how best to work with attorneys on your board

1. Do reference checks with boards on which the attorney has served before. Does the attorney bring the best of the profession to the boardroom?

2. When recruiting attorneys as board members, consider which types of issues your organization regularly confronts, and seek an attorney with expertise in those areas.

3. Give the attorney (and the board chair) a copy of this article!

Concluding thought: No doubt, a good lawyer on the board is an invaluable resource. But one that doesn't know her limitations, or takes a combative, overly-legalistic approach to the deliberative process, can be demoralizing to other board members and can lead a board to poor decisions. Make sure you get a good one.

Mark J. Goldstein is an attorney practicing in Milwaukee, Wisconsin. In addition to helping his clients (and their boards) resolve business and employment issues, he serves as Vice President of his local School Board. He can be reached at (414) 446-8800 and Goldstein@mjglegal.com.

Comments (6)

  • I am a great fan of your newsletter. I am also an attorney who works at a nonprofit and serves on nonprofit boards. I found this issue particularly pithy and wise—and occasionally very funny, to boot.

    Susan Rai Special Counsel and Secretary of the Corporation Vera Institute of Justice New York, NY

    Apr 07, 2008
  • As an attorney who serves regularly on boards, I read with interest your article about the role of attorneys. The strong points were the descriptions of the strengths and weaknesses of attorneys as board members. Then you talk about recruiting attorneys who match the organization's needs, which suggests to me legal needs. This further suggests that boards should look for attorneys to provide services to them for free or on the cheap. If so I disagree.

    Attorneys who serve on boards are volunteers like anybody else. The skills learned in law school and honed in practice may enable us to handle best quasi-legal tasks like writing by-laws and policies. On the other hand if an organization wants legal advise it should retain an attorney for this purpose. An attorney who renders legal advise not on retainer is inviting catastrophe. No attorney-client relationship means no malpractice insurance coverage. The atty may ultimately win on the merits but the costs of defense will bury him or her. Again organizations should have outside counsel for legal services and not rely on attorney board members.

    Scott Forsyth
    Rochester, New York

    Apr 07, 2008
  • The organization's attorney should never be a Board member. An attorney-Board member should not be thought of as a "two-fer" or a free attorney. The organization's attorney should always be a disinterested party.

    A Board member serving as the organization's attorney is a conflict of interest. Board members who are attorneys may provide important information in policy discussions but they should not represent the organization.

    David M. Patt, CAE

    President, Association Executive Management
    and
    Executive Director
    Association of Running Event Directors

    Apr 07, 2008
  • Thank you to all who wrote in regarding my recent article in the Board Café about the benefits and drawbacks of having an attorney on the Board. It is heartening to know that so many took the time to read and respond to my article. [Editor's note: many letters came into the Board Cafe before it became part of Blue Avocado, so only a few of them have been posted here.] It is also a sign of both your appreciation of the significance and complexity of these issues and the value of the Board Café as a forum for discussing them.

    A theme of many of the responses is that an attorney on the Board is more often an asset related to her talent for critical thinking, analysis, and attention to detail than her background in a specific area of substantive law. Related to the issue of substantive law, there are no shortcuts: The Board Member/Attorney is no substitute for outside counsel in terms of an independent perspective, the appearance of same, and the ability to devote the time and energy required to understand the underlying issues and develop a legal strategy.

    A secondary point is that, whereas in the past attorneys, and Board Members in general, may have seen appointment to the Board as a coronation of sorts related to their professional accomplishments and social stature (“The Board is lucky to have me;” “I’m giving so much of myself -- for such little, or no, recompense”); the stakes are too high for such an approach (See, e.g., Hollinger Intl.). A Board position is not the end, but the beginning and with great authority comes great responsibility.

    Determining whether a potential Board member understands this is an important part of the recruitment and selection process.

    Thanks again for your feedback.

    Mark J. Goldstein
    Attorney at Law

    Apr 07, 2008
  • This is the part I don’t understand, “to give unreasonable weight to the attorney’s point of view." Huh?  :)

    (Attorney) Brian McCaffrey

    Aug 07, 2009
  • Anonymous

    Agreed with Scott's point that Attorneys who serve on boards are volunteers like anybody else. The skills learned in law school and honed in practice may enable us to handle best quasi-legal tasks like writing by-laws and policies

    May 10, 2011

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