The attorney you get vs the attorneys you need

That’s not a typo in the title. If you realize you need an attorney, I have bad news for you. You will probably need more than one attorney.

Nonprofit founders (Executive Directors, if not the founder) who become the target of a coup attempt will find that they need an attorney who is well versed in at least three areas of applicable law:

  • Employment
  • Corporate Governance
  • Defamation and libel

If you live in a right-to-work state, or you’re in some other situation where your employment could be considered at-will, you’re going to find employment attorneys who will explain to you that the board can do whatever it wants regarding your employment. If your case has the potential to become a discrimination case that could go before the EEOC, you may have some success, but only if the organization has at least 15 employees. If the organization is smaller than that, you’re out of luck on that angle.

Some states may have discrimination laws on the books to cover the hole that federal policy leaves behind.

If you are a member of the board, pay close attention and keep every record relating to every action taken by the other board members. Comb through your organization’s bylaws. If the board is not following the bylaws to the letter, then they may be acting without authority. A business attorney well versed in the rules of corporate governance can certainly help you on that angle.

That being said, the other board members can legally go back and correct any procedural errors they made. Once they do that, you have a much more difficult case to argue with regard to governance. If a decision is made by a majority of the board, but they do not follow the proper procedure outlined in your bylaws, then the decision is technically invalid until those board members go back, call a proper meeting according to the bylaws, and make their decision again.

This is very important: don’t be the one to tell your board that they are violating the law or the bylaws. They will take your warnings as hostile and threatening. Thanks to toxic societal norms, women are especially likely to be labeled as “hostile” in this type of situation. If you are able to find an attorney willing to make that case to the board on your behalf, they may be more likely to listen.

I also mentioned defamation and libel. If you have documentation that board members are gossiping about you, or making baseless accusations against you (especially if you’re not around to defend yourself), those may be considered as a defamation per se. An investigation conducted by board members, rather than by an independent attorney, has enormous potential as such a case.

At the end of the day, when you seek representation, the attorneys who speak with you will generally push back on you and challenge your notion that you have a case. They will point out the flaws in your thinking to the point that they’ll sound like they’re representing the board members. That’s a sign of a good attorney, but only if they’re willing to make sure those challenges are properly addressed. You have a case to make, but it will turn out to be legally complicated for the fact that it involves multiple areas of the law.