Will the lawyer on your non-profit board really provide legal advice?

An executive director friend and I went to lunch a few weeks ago to catch-up on life and share stories. The company was great, the lunch was good, and I learned something new about non-profit board volunteers who work in the legal community. As it turns out, some law firms seem to be requiring their employees to clear a number of hurdles before serving on a non-profit board.

This revelation came about when my executive director friend said something to the effect of: “. . . and now the lawyer on my board can’t even provide legal advice in the boardroom.”

As you can imagine, I heard that old record player needle scratching across the surface of a vinyl album (ugh . . . yes, I am dating myself and obviously don’t belong to the Millennial generation). I swear the restaurant went dead just like in those E.F. Hutton television commercials, and all I could utter was one simple word . . . “Huh?”

So, my friend went on to explain that a new board volunteer, who just happens to be an attorney, sent him a letter from his law firm requiring the executive director to sign-off on a letter of agreement outlining the conditions of their employee’s board service.

I had a difficult time wrapping my head around this concept and asked my friend to email me a copy of the letter. The following are excerpts from that letter (with the names excluded to protect the innocent):

“The Firm has adopted policies regarding circumstances under which a Firm lawyer may serve as a director for non-client companies, and prohibits such service without permission of the Firm’s Professional Responsibility Committee. An additional prerequisite to my service is that I obtain written acknowledgement from the non-profit organization (The Company) regarding the capacity in which I will be serving on the board, and certain other matters. By signing and returning this letter to me, therefore, the Company and the Board acknowledge the matters stated below:

  1. I will be serving in my personal and individual capacity only. I will not be acting as a lawyer or providing legal services or advice to the Company. I will not be acting as an agent, partner or employee of the Firm.
  2. The Company acknowledges that it is not now a client of the Firm, and understands that the Firm will not be able to represent the Company without first obtaining special permission from the Firm’s Professional Responsibility Committee, which permission is rarely granted or unless I resign as a director.
  3. Because I will not be providing legal services or advice in my role as a director, there will be no attorney-client privilege protecting communications between me and the Company or the Board.
  4. As mentioned, the Firm’s policy prohibits director service by Firm lawyers without Professional Responsibility Committee permission. The Firm’s policy also requires that the Professional Responsibility Committee reconsider this question at least annually. Although the committee has indicated that it will permit me to serve as a director of the Company, it is possible that the Committee could change its view on this question in the future. If this were to occur, I would have to resign as a director at that time.”

I must admit that I’ve read this letter over and over again in disbelief.  A number of things raced through my mind each time I read it, including:

  • Why would I ever recruit someone from a law firm who I might one day want to retain for legal counsel?
  • Board volunteers are suppose to bring their “Time-Talent-Treasure” to their non-profit board service. If I can only get two of three, is it still worth recruiting an attorney to serve on the board? Or would they just make a better special event or annual campaign volunteer?
  • Why would I ever include an attorney on my board as part of a board officer succession plan when the Firm can yank them off my board in a moment’s notice?

I am sure that if I thought about all of this for another few minutes, I could come up with additional questions and concerns. But where is the fun in that when I can open it up for discussion with the awesome non-profit professionals and volunteers who subscribe to this blog?

What questions and concerns do you have when you read excerpts from this letter? Have you been asked to sign off on anything similar by an attorney serving on your non-profit board? Does this letter of agreement impact how you think about recruiting an attorney to serve on your board? Why? Why not?

Please use the comment box below to share your thoughts on this important board development subject. We can all learn from each other.

Here’s to your health!

Erik Anderson
Founder & President, The Healthy Non-Profit LLC