Not surprisingly, corporate board members realizing that a lawyer sits among them might turn to their colleague for legal advice. They may not understand that lawyers serving as board members hardly ever deserve privilege protection, but the lawyers should know that.
In Terrell v. Memphis Zoo, Inc., defendant Zoo withheld communications to and from one of its board members – “who is also Assistant General Counsel for AutoZone.” No. 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385, at *13 (W.D. Tenn. July 3, 2018). The Zoo argued that the board member’s role “was to provide ‘legal advice and legal guidance to the other members of the board.'” Id. at *13-14. But the court rejected the Zoo’s privilege claim, noting that the Zoo “has not demonstrated the existence of the required [attorney-client] relationship” between the Zoo and the board member. Id. at *14.
Corporations’ board members and lawyers play very different roles. Absent unusual circumstances and an explicit understanding by the corporation and its board members, outside or in-house lawyers sitting on boards should never assume that their communications deserve privilege protection (unless they are acting as clients rather than as lawyers).