ing or transmitting information for the
purposes of giving legal, and not business, advice. Many for-profit cases have
found that business advice is not protected by the privilege. 4 Accordingly, if legal
advice is necessary, the communication
itself should make clear that the advice
being offered is legal advice and that the
lawyer is acting as legal counsel. Minutes, for example, might reflect that legal
advice is being given, but then should not
record the actual advice given (at least,
not within the otherwise reviewable
regular meeting minutes, but instead
perhaps in a confidential memorandum).
What if you don’t want to serve as the
organization’s attorney? This is possible,
of course, and may even be a best prac-
tice, but you’ll need to work hard to make
sure the lawyer-client relationship is
not formed. Remember that whether the
relationship is formed is based on the cli-
ent’s reasonable expectations. 5 It would
be reasonable for the nonprofit board to
assume that you are acting as an attor-
ney in any “legal” matter; therefore, you
should expect that the relationship at-
taches by default. This is especially true
where there is not outside, independent
counsel. Accordingly, if you don’t want
the lawyer-client relationship with the
nonprofit to attach, you should remind
the board that you are not acting as coun-
sel whenever reviewing or discussing a
“legal” decision or matter.
First, do you want to take on the dual
role? If you don’t want to serve as counsel, be deliberate. Go out of your way to
make your role clear. Write a letter to the
board explaining your limited role. When
something requiring legal skill comes up
(e.g., reviewing a lease), have the minutes
reflect that your view on the lease does
not constitute legal advice. Finally, engage outside counsel for serious matters.
If you are dispensing legal advice,
make it clear that when you are acting as
an attorney, you only represent the non-
profit corporation and not the board or
individual directors or officers.
If you are dispensing legal advice, be
sure to protect the communication. Have
the minutes reflect that you’re providing
advice on a specific issue (but don’t record the actual advice in the regular minutes). Remind the other directors of their
obligation to protect the confidentiality
of the communication.
Reserve adequate time for your role.
Lawyer-directors likely have a heightened standard of care, but adhering to
this standard isn’t impossible. The key is
to gather information and make informed
decisions in which you exercise independent judgment. Say “no” if you can’t make
time to meet the standard.
Make sure the organization has or obtains directors and officers insurance and
read the policy. Professional malpractice
may be specifically excluded under such
a policy, so be sure to read your own professional malpractice policy (or call your
broker) to see if there are any exclusions,
limitations, or additional requirements
Seattle 206.448.1777 | Hoquiam 800.540.7364 | www.stritmatter.com
Real Justice for Real People
Heather Spriggs v. Grays Harbor Community Hospital, et al.
For twenty six hours I lay alone in a hospital bed with
the wrong diagnosis. By the time the doctors realized
their error, my legs had completely died.