Should lawyers who represent clients averse to the organization’s mission be on the board?

Editor’s Note: The author, Don Kramer, is an attorney with expertise in tax exempt organization law. Do you agree with what he has to say in response to the question? Disagree? Sound off below! Also, Don enjoys taking questions from his CharityChannel peers, so if you have a question that you’d like him to address—not as legal advice, but as commentary about the law—be sure to let him know via the comment box below, as well.

 


 

Question: The primary mission of our nonprofit membership organization is to end domestic violence. We provide direct services to victims, but not legal representation. Several of our directors are family lawyers who occasionally represent offenders in domestic violence protection order cases and resulting criminal cases. Some of our members feel this is contrary to, and therefore a violation of, our mission. Some also feel it is a violation of the canons of ethics for the attorneys to represent offenders if they are committed to our mission. Is there any merit in either argument, and, if so, do we need to exclude family and criminal lawyers from our Board?

Answer: I admire the zealousness of your members, but what is the purpose of your board? Most organizations want a board that brings a broad and diverse set of backgrounds and experience that can help inform discussions of how the organization can best pursue its mission. Family lawyers who see both sides of the domestic abuse situation can bring a unique perspective to the discussions. To preclude them from the discussion may deprive you of insights that could substantially increase your ability to deal with your issues.

It would be a great mistake to assume that a lawyer who represents people accused of domestic violence (even if some of them are guilty) have a conflict with your mission. It is like saying that criminal defense lawyers have an ethical conflict with their clients unless they favor crime and oppose crime prevention activities. Everyone has a right to representation in our society, and we should not automatically ascribe the characteristics of clients to their lawyers. Some of the greatest American lawyers have, at great personal cost, represented unpopular clients and causes. Our system of justice demands it.

Obviously your members will get to vote on the directors and can make a judgment of whether a particular lawyer candidate is appropriate for the board. But to arbitrarily disqualify anyone who has represented a person on “the other side” of your issue (especially if their clients have been falsely accused) would, in my opinion, diminish your ability to do your job.

The Fine Print...

Although this article discusses an aspect of the law of tax-exempt organizations, neither the author nor CharityChannel Press is rendering legal advice. No attorney-client relationship is formed between the reader and the author or between the reader and CharityChannel Press. A qualified attorney should be consulted on all important questions of law.
Don Kramer

About the Contributor: Don Kramer

Don Kramer is editor and publisher of Don Kramer’s Nonprofit Issues®, a national newsletter of "Nonprofit Law You Need to Know." He writes and lectures frequently on nonprofit legal issues, including a daily question and answer feature on Twitter @DonKramer .

Don is chair of the Nonprofit Law Group at the Philadelphia law firm of Montgomery, McCracken, LLP. He has worked with nonprofit organizations of all types and sizes, helping structure start-up situations and restructure multi-organizational foundations, health and educational systems. He counsels on a wide range of corporate, governance, tax, real estate, charitable giving and other nonprofit issues. Mr. Kramer has more than 40 years of experience dealing with the concerns of nonprofit organizations, not only as a lawyer, but also as a teacher, writer, publisher, and board member.

He also serves on the Boards of the Pennsylvania Association of Nonprofit Organizations, the Philadelphia Council for Community Advancement and the Philadelphia Fire Department Historical Association. Don has taught a course on nonprofit organization law at the University of Pennsylvania Law School and Eastern University and currently teaches a similar course for the School of Social Policy and Practice at the University of Pennsylvania. A graduate of Princeton University, he earned an LL.B. degree from Harvard Law School.

  


5 thoughts on “Should lawyers who represent clients averse to the organization’s mission be on the board?

  1. I think it is a clear conflict of interest and the lawyer should withdraw from representation/recuse him- or herself from either the Board or the client who holds the adverse interest.

  2. I understand and wholeheartedly support the concept that an attorney representing a person who may eventually be convicted of even the most heinous crime is NOT also a criminal or criminal sympathizer. Our system requires that everyone receive competent representation.

    But from the point of view of the nonprofit, the organization must be able to ask and answer a simple question. Should the organization accommodate a director’s personal involvement in any activity that may undermine the mission of the organization? I think the answer is no.

    How could this attorney’s defense of a person charged with domestic violence undermine the mission?
    ~ Public Relations: fairly or unfairly, if the organization takes the case of a “victim” and provides support, and then the victim discovers that a director of the organization upon which s/he is relying for support is defending the alleged assailant, opportunistic media could have a field day with the story.
    ~ Constituent Confidence: the same set of facts could be interpreted by the victim and other potential and past victims in much the same way that tabloid media might exploit the story. Whether justified or not, undermining the confidence of those you serve is not advancing the mission.
    ~ The simple fact is that said attorney CANNOT represent both sides of any case, and in professionally representing the accused while simultaneously governing the organization that claims to represent the accuser, there is, in my mind, an unequivocal conflict of interest.
    ~ Given internal board loyalties and friendships, the conflict of interest may extend to the rest of the board. If a director has professional commitment to do all s/he can to defend the accused, and if the organization is pledged to support to the accuser, other directors may be conflicted in their loyalties to their fellow director over the victim.
    ~ Regardless of professional ethics, could other directors have 100% confidence in the opinions offered by someone who may also be representing the “opponent” of the organization’s “client?” That’s a nagging doubt that no organization should embrace.
    ~ Finally, there is at least the appearance that the victim’s privacy may be breached. Regardless of policy and procedure, a director of a corporation may appear to have unfair access to a victim’s information that might be used in the accused person’s defense.

    Note that these objections focus heavily on “appearance” and possibility. But the very essence of conflict of interest is the opportunity to abuse one’s role and pledge of service to one party while also pledging to serve a competing party. And, since this conflict extends to the core of the services provided by the organization, there is no way for the director in question to recuse him/herself from the conflict.

    In this case, I would add this litmus test. If the organization were to setup demonstrators outside the courtroom to stand in solidarity with the alleged victim, how would others perceive the fact that a director of the very same corporation involved in the demonstrations was also representing the accused? And before you point out that the organization’s mission does not currently include such demonstrations, I’ll say that’s immaterial to the question. Should, for ANY reason, the organization decide to take that or similar actions, there should be zero opportunity for that apparent conflict of interest to inhibit the organization’s decision on how to fulfill its mission.

    Several years ago, I consulted with a “Child Advocacy Center” – and organization dedicated to providing forensic interviews of alleged victims of child sexual abuse. (I provided board training, fundraising training, marketing and communications services, and organizational guidance…no legal counsel.) This organization would never have invited a defense attorney who represents the defendant in child sexual abuse cases to sit on the board.

  3. You know, John Adams has pretty outstanding credentials as a founding father, but felt it was a duty to fairly represent British soldiers. Under our justice system, which favors laws applied on their merits rather than on the merits of the personalities involved, I admire his integrity and the courage of his convictions. In my mind this advances the long-term ideals of the society over the passions of the instant.

    Nonprofits of course have an expressive purpose, and those involved in this particular nonprofit are entitled to their point of view, including who gets to be affiliated with and speak for their organization. But I like to think that everyone is best served, in the long run, if we try to judge based on substance rather than appearances and might-bes. Presumably the board members have a affinity for and are supportive of the organization’s mission. On what grounds do we decide that someone who supports a shared goal is not qualified to be part of the team?

    I do not ask to prescribe an answer for the organization in question; but rather to raise a question that needs to be considered by those most closely affected. How broad a coalition, how broad a segment of society do they want to bring to the fold? What tolerance of diversity of voices is there, or should there be, in their vision, given individuals’ support for a shared goal of ending domestic violence?

  4. While Mr. Kramer is correct that family lawyers who see both sides of the domestic abuse situation can bring a unique perspective to the discussion and contribute insights to help deal with the issues, I disagree that lawyers who defend those accused of domestic abuse do not have a conflict of interest if they sit on the board of a nonprofit that serves victims of domestic abuse. It is true that lawyers represent their clients and should not automatically be ascribed the “characteristics of clients” they represent. However, they are expected to defend those clients and look for ways to advance their clients’ interests. In the scenario presented by the question, the lawyers who represent the interests of those accused of perpetrating the crime the nonprofit is trying to alleviate would definitely not have the best interests of the victims in mind. Even if the lawyers involved are not directly representing the accused perpetrators of the crimes against the nonprofit’s actual client base, the appearance of a conflict of interest definitely exists. If you substitute “victims of child sexual abuse” for “domestic abuse” I doubt you would find many reasonable people who would be comfortable with the notion of those attorneys sitting on the governing board of a nonprofit whose mission is to help these victims.

    The ethical standards guiding the nonprofit world are different from the law. Law deals with adherence to written codes, legal precedent, and what you can prove “beyond a reasonable doubt.” In theory, doubt can exist, but as long as it is not beyond “reasonable” it can be discounted when it comes to a legal ruling. The standards are higher for nonprofits. They operate to serve a stated mission and the best ones strive to avoid even the appearance of conflict of interest. If the nonprofit’s membership is uncomfortable with the choice of governors, perhaps a closer look at the selection process is warranted. I do not think it is “zealousness” to show concern in this matter. A good question would be “why are these lawyers on this particular board in the first place?”

    When you serve a mission for the public good, the confidence the public places in you to achieve your mission is critical. Nonprofits need to choose their board members wisely. The mission and the client base are the key elements to a nonprofit’s existence and should determine how best to proceed; the best interests of individual board members are secondary. There are many nonprofits in need of good board members. Just because a lawyer with a particular client base may not be a good fit for one of them should not be seen as an indictment of his or her character. They are not being accused of perpetrating domestic abuse or advocating for its continuance; they are just not the best representatives on a nonprofit board whose mission is to provide services in the best interests of domestic violence victims.

  5. I would say as long as it is occasional and not a focus on defending people charged with domestic abuse it is OK. However be careful, public affiliation with those cases should be kept at a minimum (lest donors think of wolves in sheep skin).

    I would say these individuals are knowledgeable of legal specifics and the greater situation would call for a special committee that would analyse generalized types of cases and generalized most likely defense stances in court in order to develop the best advise for domestic abuse victims. Standing against an abuser, but loosing in court would be a terrible feeling to the victim (as we know they probably have tried to stand up against the abuser face-to-face which probably did not end very well). Perhaps the lawyers could offer insight into the realistic outcomes of a legal battle which would be a major contribution in the strategy to help victims of abuse.

    I see a potential victory for stakeholders as long as these particular cases can be out-shadowed or hidden from the public’s viewpoint. In this case there would be board disagreements, a special committee should be formed and given a good amount of “beta testing”. Pending a successful outcome (which may take years), further disagreement should be met with one on one logic based peer-to-peer counsel and discussion.

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