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Q&A: Can Professional Still Serve on Board?

Q I am on the board of directors in a Connecticut leasehold property. For some time, we have wanted to nominate one of our leaseholders but she keeps refusing to be on the board because she says that as a lawyer/ accountant, she holds herself to a higher standard and that she would be in peril of losing her license. Is this true?

—Questioning in Connecticut

A “The short answer is ‘no,’ this is not true,” says attorney Jack Facey of the law firm of Kenlan, Schwiebert, Facey & Goss, PC in Rutland, VT. “There is no particular code of ethics that applies to condominium directors other than the requirements set forth in most states not-for-profit corporation law. By statute and case law, all board directors owe a fiduciary duty to the condominium association. A fiduciary duty is the “highest duty” there is under the law. Some, not many, associations have a code of ethics in their bylaws or have adopted other provisions which may not rise to a “legal” obligations but could open up a director to a claim of a violation of one of those duties. I am not aware of case law or the law of any state that holds an attorney or an accountant to a “higher” ethical obligation than that of a non-attorney/accountant condominium board member.

“Your reluctant owner/lawyer may be concerned about the fact that she has a specific code of ethics to follow. It is debatable whether more “specific” means “higher.” There may be some professional conduct rules that could be perceived to be “higher.” For example, the commission of a felony or other crime may get you in trouble with a state professional conduct board but may not disqualify you from participating in a condominium board. She may also be concerned that a lawyer can be disbarred or suspended for issues unrelated to his or her practice of law.

“Another aspect of your owner’s reluctance may derive from the fact that lawyers have an obligation of candor to the tribunal or court they are practicing before. A condo board member’s duties are probably limited to not lying or concealing requested information. If a board member is held in contempt for something, that probably doesn’t affect his or her professional life, but if she is a lawyer, she could experience further problems with the professional conduct board. In general, however, the professional conduct rules and the obligation of candor apply to an attorney acting as an attorney so it is hard to imagine a situation where a person acting according to her fiduciary duty as a board member could be found to be violating her professional canons.”

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