A recent federal district court decision (applying Tennessee law) concluded that the mere inclusion of a lawyer on the board of a nonprofit corporation did not establish the attorney-client privilege to communications with that director.
The case arose from a discovery/document production dispute in the context of a gender-discrimination-based termination action filed against a large nonprofit organization. The plaintiff (the terminated employee) sought to compel production of certain documents, some of which the defendant (a prominent zoo) sought to protect from discovery on the assertion of attorney-client privilege. The documents in question were emails to a member of the defendant’s board, who also served as assistant general counsel for a large, unaffiliated corporation.
The zoo’s argument was that the lawyer played multiple roles while serving as a board member, and in this particular circumstance (the discussions regarding the termination action), her role was to provide legal advice to other board members. The court rejected this position, holding that merely providing legal advice to other members of the board did not alone make any related communication privileged. Rather, an assertion of privilege required demonstration of an attorney-client relationship, and the zoo failed to establish that necessary fact. Indeed, the court’s decision contained a useful analysis of the attorney-client privilege under state law.
Beyond the direct import of its conclusion, this decision is a useful reminder that the mere fact that a lawyer serves as a voting member of a board of directors is unlikely to provide a basis for any special benefits (e.g., reliance on advice) to inure to the board from that service, apart from the unique perspective that lawyer may bring to the board.