ABA-410
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| Lawyers serving on a corporation's board of directors should: warn the corporation that their discussions with the board might not be protected by the attorney-client privilege (because they involve business advice rather than legal advice); assure that legal advice to the board is provided in a confidential setting (with non-essential corporate employees dismissed) and retained in a separate labeled file; avoid waiving the privilege on behalf of the corporation (which can occur because they are also directors authorized to waive the privilege); consider declining to represent the corporation in actions they opposed as directors; possibly arrange for other counsel to advise the board in matters involving the lawyer-director (to assure independent advice and the availability of an "advice of counsel" defense); consider abstaining from voting on any action involving retaining, paying or discharging the lawyers' firm (although the ABA rejects the New York City Bar's blanket prohibition on such activity); arrange for independent counsel to represent the corporation in litigation involving the directors or the lawyers' law firm (especially in a derivative case or if there are possible claims against the directors or the law firm). |