Board Member and Legal Counsel: Some Suggested Rules of the Road

By Lawrence White    //    Volume 22,  Number 4   //    July/August 2014

“We’re not so different, you and I.”

That trope, addressed by Dr. Evil to the eponymous hero of the 1997 film Austin Powers: International Man of Mystery, encapsulates the working relationship between you and me—board member and institutional legal counsel.

On the surface, our roles could not be more dissimilar. You provide leadership and direction to the institution that employs me. You make decisions. I give advice. Much of your work is done at well-attended meetings where your decisions are recorded and your remarks are captured in written minutes. Much of my work is performed in secret. You visibly steer the institution in new directions. I surreptitiously keep the institution from making mistakes. You deal in principles and strategic directions. The coin of my realm is the precise, arcane, technical language of the law.

Yet we complement one another. You know where you want to go, and I see how to get there. You understand the opportunities, and I avoid the risks. Your job—much of it—involves reading and absorbing written materials that illuminate the decisions you must make. My job is to write, analyze, and understand those written materials.

Our institution benefits when we work harmoniously and suffers when communication between us is strained. We can advance the ball by adhering to the same simple precepts guiding the work we do together and our relationship with one another:

Responsiveness. All of us are busy and juggle many priorities. Nothing tarnishes a lawyer’s reputation quicker than not returning telephone calls or taking too long to perform an assignment. You have the right to expect promptness and responsiveness from anyone the institution is paying to provide legal services. I have the right to assume, when I need to know something essential to the task that I’ve been asked to perform, that you will share all pertinent information and keep nothing back.

Clarity. I deal in arcana and technicalities, but you have the right to plain-English explanations of what you need to know. My communications to you should be lucid, understandable, complete, and free of legal jargon and acronyms. Your instructions to me should be clear and cogent. I shouldn’t have to intuit what you want.

Candor. By virtue of my position and the role I play, I am sometimes called upon to communicate unwelcome news. Although that is not always easy, I should be prepared to impart it. You do not appreciate surprises. By the same token, you must share with me all the information that I need in order to give you well-considered advice, even when discomfiting or personally embarrassing.

Pragmatism. You come to me for assistance when you have a problem and need my help resolving it. You want a solution, preferably quick and neat, not an exposition on the complexity of your problem. You, in turn, may not always get the advice you want, and I have the right to expect that you will be flexible enough to heed good advice even when it’s not the counsel you expect or seek.

Perspective. The lifetime of most legal projects is long, often much longer than you would prefer. Solving problems takes time and can follow a bumpy path. You should not mistake an inconsequential setback for a catastrophic lawyering failure. Just as lawyers offer patience as one of their most important professional attributes, you need to understand the ebb and flow of a legal problem and take the long view.

At the same time, I must remember that mine is not the only advice you will receive. Every significant problem has political, interpersonal, strategic, and financial dimensions. You are entitled to take into account all of the advice you get, and I should be expected to suck it up if my advice is not followed.

When we follow these precepts, we enhance each other’s roles. At bottom, we are all committed to the success of our institution. In that respect, and in many others as well, we are not so different, you and I.