Most schools realize the wisdom of including an attorney among the members of the Board. During meetings, a lawyer can respond to general legal questions and provide perspective and proactive advice on potentially difficult issues.
The attorney acting as a Trustee on your Board is qualified, knows the school, and may also provide services at either reduced cost or gratis. So, why not entrust him or her with handling all your school’s legal needs?
While your “on-Board” attorney may seem like a logical and reasonable choice, serious conflicts can arise.
- A classic conflict-of-interest situation could occur if a lawsuit is filed against the school. As a Trustee and the school’s paid legal counsel, this individual would not be permitted to offer testimony to justify his or her actions. Even donated services represent an unacceptable exposure to liability. Claiming that the law firm—not specifically the on-Board attorney—handles the school’s legal matters does not provide adequate protection.
- Board fiduciary responsibility may conflict with and weaken a lawyer’s valuable professional objectivity and independence—as well as participation in sensitive policy decisions.
- You may put this person in the position of having to choose between conflicting responsibilities as a Board member versus duties as the school attorney.
- The on-Board attorney’s firm may not be able to handle the scope of your school’s needs, or the individual may not wield the power to commit the firm’s expertise.
- The attorney may feel obligated to take on the responsibility of representation at the Board’s request, despite well-founded reservations and perhaps even a lack of desire to take on those responsibilities.
- Nonprofit schools often need advice based on their specific status, and need legal counsel focused on relevant tax law. Because nonprofit law varies from state to state, many lawyers may lack the expertise your school requires.
- If the attorney is giving the school a financial break in legal services, problems increase. Service to the school is less likely to take priority when a firm’s livelihood depends on paying clients. If services are provided gratis and counsel errs professionally, the Board has less recourse to recover damages than if the attorney were paid.
While your on-Board attorney may provide valuable input and advice during Board meetings, there are clear reasons he or she should not be responsible for your school’s legal needs. As you seek counsel, consider the scope of the legal issues involved in today’s private schools. Ideally, a firm should have experience with other schools and nonprofit entities, since legal activity in this arena is often unique in nature.
Additional ISM resources:
The Source for Business and Operations Vol. 7 No. 5 HR and Legal Advice: Increased Costs, or Cost Savings?
Additional ISM resources for members:
I&P Vol. 39 No. 13 Human Resource Concerns and Proper Legal Counsel
I&P Vol. 33 No. 8 Revisit Your Conflict of Interest Policy
