Dual Identities and Dueling Obligations: Preserving Independence in Corporate Representation

Abstract

Under the Model Rules of Professional Responsibility, lawyers for corporate entities must regard the organization itself as the client. Because the corporate client can act only through its authorized constituents, including officers, directors, and employees, the lawyer for the corporation typically looks to the authorized managers of the corporation to speak on behalf of the client. When the interests of the managers and the corporations diverge, however, the lawyer must seek out the highest authority in the organization to provide the appropriate guidance. As a general matter, the board of directors acts as the highest authority within the corporation. One of the most controversial issues arising out of the context of corporate representation involves the corporate lawyer's relationship vis-à-vis the board of directors. In particular, the lawyer who serves as a member of the board of directors, while acting simultaneously as the corporation's legal counsel, plays a dual role that raises difficult questions about the preservation of independence in both capacities. This article discusses the propriety of permitting corporate lawyers to serve on the corporation's board of directors while serving simultaneously as its legal counsel. This type of dual service raises important corporate governance considerations relating to the essential nature, function, and role of the board of directors in the modern corporation. Deeper theoretical questions about the role of attorneys as officers of the court and administrators of public ideals are also at issue. Client loyalty considerations must be balanced against lawyer independence. The article argues that the dual role compromises independence ideals both with respect to the effective functioning of the board of directors and with respect to the effective representation of the corporate entity. The article therefore proposes that a new ethics rule be adopted that prohibits a lawyer from serving on the board of directors of a corporation for which the lawyer acts as counsel, whether in an in-house capacity or as an outside lawyer.

Keywords: board of directors, lawyer, lawyer-director, model rule 1.13, attorney-client privilege, in-house counsel, independence, client loyalty

JEL Classification: K1,K19,K2,K20,K22,K23,K3,K30,K4,K40,K41,K42,M14