This article was written with the assistance of AI and edited by Angela Sabarese.
In a recent CLM webinar, Jennifer Wojciechowski, director of claims and operations, Alliant Community Association Underwriters of America, and Jonathan Ziss, partner at Goldberg Segalla, offered valuable insight on representing not-for-profit boards in litigation.
The experts emphasized that volunteer board members often lack litigation experience and may be wary of insurance-appointed counsel. "The not-for-profit boards are generally volunteers. They may or may not be experienced in conflict and litigation at all," Wojciechowski explained. This requires defense counsel to build trust carefully from the outset.
Defense Approach for Non-Profits
The speakers outlined a methodical approach for defense counsel, starting with contacting the claims professional before engaging with board members. Ziss recommended creating a checklist covering essential steps: reviewing governing documents, understanding board dynamics, identifying key stakeholders, and establishing communication protocols.
A critical theme throughout the discussion was the personal nature of board service. "Their identity as a board member is very tied to their sense of self," noted Wojciechowski, explaining why disputes involving not-for-profit boards often become emotionally charged. This personal investment requires defense counsel to approach these cases with heightened empathy and careful listening.
Challenges and Best Practices
The webinar addressed several practical challenges, including document preservation, managing attorney-client privilege, and identifying potential conflicts of interest. Ziss emphasized, "Each of the board members has a duty to preserve attorney client privilege and each one of them has a pin in their hand that can pop privilege for everybody else."
Both presenters underscored the importance of understanding the power dynamics within boards. "The power dynamics of the board are something that need to be figured out pretty early in the handling of the litigation," Wojciechowski advised, noting that board members' professional backgrounds often influence discussions outside counsel's presence.
By following these best practices, defense counsel can build effective relationships with not-for-profit boards and achieve successful litigation outcomes.