2005 September 10
Last edit: 2008 Nov 15. See History for brief descriptions of changes and updates.
Do you understand the role of a POA's attorney(s)? Who is the client? What information between the attorney and the POA should be privileged? To whom? Who should decide?
What should you do if there is a disagreement with an interpretation of the governing documents? You believe the plain language in the governing document is clear? The board has a different interpretation and claims that their interpretation is made by the POA's attorney. (added 2008 Sep 28) But the board as agent provided the instructions to the attorney and provided the documents and other information to be used in the attorney's opinion. How should this be resolved? Should you have access to the attorney's letter containing the interpretation and the analysis on which the opinion is based? Should you have access to the instructions from the POA to the attorney that resulted in the opinion?
Suppose a proposed amendment to the bylaws is represented as having the approval of the POA's attorney. Should you be able to question the expertise of the attorney to recommend such an amendment? Many of the same questions as in the above paragraph are also applicable.
The continuation of this post discusses these considerations and proposes that a letter of engagement be written by the attorney (added 2008 Sep 28) But the board as agent provided the instructions to the attorney and provided the documents and other based on the above and other considerations defined by the POA and approved by members to address these and other issues in the attorney-client relationship and that the letter be available to members.
Your comments and questions on this important matter are encouraged. Members should not assume that attorney-client relationship will serve their interests.
Don Nordeen
P. S. Please be advised that I am not an attorney. This post is concerned with governance and management issues arising out of attorney-POA relationships. Any analyses or opinions expressed or inferred are those of a lay person and are not legal advice.
===========
Read the continuation of this Post and any Comments.
- History: Changes are usually identified in the text with the date which facilitates searching by date.
- 2008 Nov 15 — added/edited discussion
that legal opinions are not singular or unique, and that some
uncertainty is inherent but can be reduced by good procedures
- 2008 Sep 28 — added discussion to better ensure that legal opinions are in the interests of the POA
- 2008 Apr 20 — added discussion of standards for legal advice
- 2007 Oct 18 — added introduction for the
standard for legal advice from POA's attorney to represent all the
interests inherently involved
- 2007 Oct 13 — added further discussion of
the standard for legal advice from POA's attorney to represent all the
interests inherently involved
- 2006 Sep 24 — added discussion of the
standard for legal advice from POA's attorney to represent all the
interests inherently involved
- 2006 Sep 10 — Initial Post
- Links: Letter of Engagement by Attorney at [http://swagman.typepad.com/poa_governance/2005/09/letter_of_engag.html]
- Key Words: KeyWords
Read the continuation of this Post and any Comments.
Or Click Show All for the Above Introduction and the Continuation of this Post and any Comments.
Recent Comments