As attorneys, we are frequently asked to join non-profit boards. Non-profit organizations are eager to add legal professionals with critical-thinking skills and community ties to their boards, believing they may also benefit from some “free” legal advice. Making time to serve on a board is a great way to give back and engage with your local community. While we should welcome these opportunities, we must be aware of the potential ethical Trouble an attorney could encounter. Be mindful of these factors before you accept a board appointment, or you might be Sorry!

• Your role – Before accepting a board position, it is crucial to define your role. Will you be serving as a board member only? Or, will you be a board member and the organization’s attorney? Clarifying your role before the lines are blurred is critical to protecting against potential conflicts and inadvertently creating an attorney-client relationship. If you are not the board’s attorney, be mindful of the guidance you offer and specifically state that you are not giving legal advice so it is documented in the meeting minutes.
• Potential conflicts – In our everyday legal practices, we must continually monitor the development of conflicts in our cases. When an attorney serves the dual role of board member and legal counsel, conflicts can also quickly arise. For example, an attorney should not participate in a vote to determine whether their law firm should be retained as outside counsel. Or, if the attorney offers legal advice, they cannot vote as a board member on the same matter.  Be on guard for potential conflicts so as to not Risk an ethical violation.
• Independent judgment – A specific conflict of interest can arise concerning an attorney’s loss of independence when serving as a board member and the organization’s attorney. Board members have a duty of loyalty to the organization, and attorneys have a duty to exercise independent judgment. Under Model Rule 1.7, this concurrent conflict of interest can develop if the attorney’s independent professional judgment would be clouded when asked to give legal advice on a board decision they have other opinions on when wearing the board member hat.

So, what are best practices when serving on a non-profit board?  The board and attorney should thoughtfully consider whether the board appointment best suits both parties.  And, if you want to play fair and square, keep these tips in mind:

• Use an engagement letter – If you do accept the dual role of board member and attorney, clearly define these roles and state the scope of representation in an engagement letter. You should also obtain informed written consent from the board concerning the potential risks and conflicts of interest related to these roles.
• Recuse yourself when necessary – Always be wary of conflicts – or the appearance of a conflict – and err on the side of recusing yourself from a board vote if such circumstances exist.
• Review your coverage – Be sure to check whether your professional liability coverage or the board’s D&O insurance coverage extends to the legal advice you offer while serving on the board.

If you’re going to play the game, you have to play by the (ethical) rules. Keep these tips in mind before making your next move to join a non-profit board, and you can be winner!