This month’s main course article
What is the Role of 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 wouldn't have to pay a lawyer), and that she'd 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 Lincolns and Atticus Finches 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 board room?
2. When recruiting attorneys as board members, consider which types of issues your organization regularly confronts, and seek an attorney with expertise in that area.
3. Give the attorney (and the board chair) a copy of this article!
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.