Can a lawyer serve on the board of directors of a corporation and also act as the corporation's counsel?

Plain-English summary

Opinion E-84-12 asked whether a lawyer may serve simultaneously on a corporation's board of directors and as counsel to the corporation. The committee concluded it is not unethical per se for a lawyer to serve on the board of a corporate client, whether profit or non-profit, citing Formal Opinion E-82-15 and ABA Informal Opinion 930. It conditioned that conclusion on the lawyer abstaining from any part in the decision by which he or she is retained.

The committee added that a lawyer in this position should carefully consider potential ethical problems and, after fully disclosing the matter to corporate officials, satisfy himself or herself that the service will not give rise to conflicts between the lawyer's duties. A primary consideration drawn from the former Code is that, except with the client's consent, a lawyer may not accept employment if the exercise of professional judgment on the client's behalf will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interest (SCR 20.24(1)); the committee also cited SCR 20.23(3)(e) (allegiance owed to the corporation) and SCR 20.27(1) (limiting business relations with a client).

Currency note

This opinion was issued in 1984, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. A lawyer serving on a client's board is now analyzed under SCR 20:1.7 / Model Rule 1.7 (and its comment on lawyer-directors). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer sit on the board of a corporation that the lawyer also represents?

A: The committee concluded yes; it is not unethical per se, subject to the conditions below.

Q: What must the lawyer do about the decision to retain the lawyer?

A: The committee said the lawyer should abstain from taking any part in the decision by which he or she is retained.

Q: What is the central conflict concern?

A: That, except with the client's consent, the lawyer may not accept employment if professional judgment will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interest (SCR 20.24(1)).

Background and rules framework

The opinion interpreted the former Code's conflict provisions (SCR 20.24(1), 20.23(3)(e), 20.27(1)) as applied to a lawyer serving on a corporate client's board. That subject is now addressed by SCR 20:1.7 / Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.24(1) / Model Rule 1.7 (conflicts; personal interest) (former Code provision)
• Wis. SCR 20.23(3)(e), 20.27(1) (allegiance to corporation; business relations with client) (former Code provisions)

Other opinions cited:

• Wisconsin Formal Opinion E-82-15
• ABA Informal Opinion 930 (April 1966)
• New Jersey State Bar Opinion 462 (November 1980)

See also

• WI Ethics Op. E-84-18: Village Attorney's Partner on the Zoning Board of Appeals
• WI Ethics Op. E-86-16: Lawyer-Director of Insurer Whose Firm Sues the Insurer
• WI Ethics Op. E-88-12: Representing a Divorce Client and His Corporation

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-84-12.pdf