Aba Task Force Misses the Mark: Attorneys Should Not Be Discouraged from Serving on Their Corporate Clients' Board of Directors

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As published in Delaware Journal of Corporate Law, Volume 25, No. 2, Pp. 261-275, 2000

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Patrick W. Straub
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Attorneys have engaged in the practice of serving on their corporate clients' board of directors for over one hundred years. A report recently released by the ABA Section of Litigation's Task Force (Task Force Report) has fueled fire to the debate over whether this practice should be permitted. The Task Force Report criticizes the practice of serving as both an attorney and director of a corporation and concludes that it "should be discouraged in most cases." Today, the practice of attorneys performing the dual role of both legal advisor to the client as well as a member of the board of directors is widespread. The Task Force Report and other critics point out, however, that the practice poses a number of potential ethical and professional problems, including: potential loss of the attorney-client privilege, potential loss of the attorney-director's professional independence, risks of conflicts of interest, and the threat of increased liability for both the attorney-director and his or her firm.