Over the years, I have served on boards of directors of a number of my clients. I have done so at the request of clients or boards, for many reasons, among them “balancing” the board which otherwise would have been skewed in favor of a venture capitalist and providing “free” legal advice to non profit boards (even significant sized non profits). I have found this dual service –board membership/legal counsel to be highly rewarding.   Dual service, however, opens up some interesting potential conflicts. A recent article in The New York Times discusses those issues in relation to David Boies’s service as counsel and director of Theranos. I disagree with one of the author’s premises—that a director owes his/her duty to investors. In Massachusetts corporations, he or she owes that duty to the corporation, not just its “investors.” Mass. G. L. c. 156D, § 8.30 (a) (3). [1] That said, the general point of the article deserves to be considered.


Traditionally Massachusetts lawyers serve in the office of secretary of their corporate clients. I have done this and will continue to do so for a number of reasons, not the least of which is to make sure that the corporation’s acts are properly authorized by directors. Yet this service may expose the attorney to analogous conflicts. The standard of conduct for officers in a Massachusetts corporation is similar to that of the standard for directors. Mass. G. L. c. 156D, § 8.42.


[1]           That subsection provides that a director must act:

in a manner the director reasonably believes to be in the best interests of the corporation. In determining what the director reasonably believes to be in the best interests of the corporation, a director may consider the interests of the corporation’s employees, suppliers, creditors and customers, the economy of the state, the region and the nation, community and societal considerations, and the long-term and short-term interests of the corporation and its shareholders, including the possibility that these interests may be best served by the continued independence of the corporation.