May counsel for a Vermont nonprofit follow a properly elected board's majority vote when minority members oppose it?

Plain-English summary

The requesting lawyer represented a nonprofit homeowners' association whose member classes disputed proposed changes to their voting rights. The board's composition gave one class control, and members of other classes questioned the amendment procedure. The lawyer asked whether counsel could act on a divided board's majority vote to start a declaratory-judgment action.

The committee relied on Vermont Rule 1.13(a), under which a lawyer for an organization represents it through its duly authorized constituents, and Rule 1.2(a), under which the lawyer follows the client's decisions about the objectives of representation. It also cited provisions of Vermont's Nonprofit Corporation Act placing corporate powers and management under the board and treating a majority vote at a quorum as board action, subject to a higher voting requirement where applicable.

Its answer depended on the board being properly elected. The committee expressly declined to decide which substantive law governed that election or whether the election procedure had been followed in this association's particular circumstances.

In practice

For the nonprofit described, the opinion allowed counsel to take direction from a properly elected board's majority decision even when minority members opposed it. The committee's conclusion did not resolve the dispute over the board's authority or the association's amendment process.

Common questions

Q: Can minority opposition alone prevent the nonprofit's lawyer from following the board majority?

A: No. The committee permitted counsel to follow a majority decision if the board was properly elected and the governing voting conditions were met.

Q: Did the committee determine whether this board was properly elected?

A: No. It described that as a substantive-law question outside its authority and assumed proper election for its ethics answer.

Q: Could counsel commence the proposed declaratory-judgment action?

A: Under the opinion's assumptions, the lawyer could follow the board's majority instruction to commence the action over the proposed bylaw amendments.

Background and rules framework

Vermont Rules 1.13(a) and 1.2(a) supplied the ethics framework for identifying an organization's authorized decision makers and following the client's objectives. The opinion cited 11B V.S.A. §§ 8.01(b) and 8.24(b) for board management authority and majority action with a quorum, subject to an applicable higher vote requirement.

Citations and references

Vermont Rules of Professional Conduct:

• Rule 1.2(a), (c), and (d)
• Rule 1.13(a)

Statutes:

• 11B V.S.A. § 8.01(b)
• 11B V.S.A. § 8.24(b)

See also

• NY State Bar Op. 743: Counsel to a labor union
• NY State Bar Op. 978: Closely held corporation counsel

Source

• Landing page: VBA organization-as-client opinions
• Original PDF: Vermont Advisory Opinion 15-03
• Duplicate official PDF with identical extracted text: Vermont Advisory Opinion 15-03