These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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63-Lawyers Acting as Corporate Officers or Directors

71-Representing Corporations

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).

Copyright 2000, Thomas E. Spahn