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Abstract

Corporate directors are subject to the fiduciary duties of care and loyalty

in the discharge of their responsibilities. The demands of these duties, from

their precise contours to their application under a particular set of

circumstances, is oftentimes far from obvious.

In order to properly fulfill their duties of care and loyalty, corporate

directors necessarily depend upon corporate counsel: specialized attorneys,

whether in-house or external to the corporation, retained to advise and

represent the corporation. As attorneys, corporate counsel are themselves

subject to a wide array of professional responsibilities, ranging from the

exhortations of codes of ethics to duties the breach of which could result in a

finding of malpractice. These responsibilities can themselves be ambiguous

when brought to bear upon specific situations, and hence the advent of the field

of legal ethics, and the phenomenon of experts therein.

This Article explores the potentially perilous confluence of these two sets of

obligations in the person of a corporation’s general counsel. For it is,

ultimately, the general counsel of a corporation, that specialist of specialists,

with whom rests the duty to advise board members of their duties. This Article

articulates what this duty entails and, informed by a 2022 survey of general

counsel, sets forth suggested best practices to be adopted in order to confidently

discharge it.

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