Imagine you are counsel to a company conducting a serious internal investigation. You may already be contending with government agencies, recalcitrant employees, and private plaintiffs. And then you learn of another curveball: the company’s board of directors has appointed its own counsel to do an investigation. With everything else going on, how do you handle conflicts between board and company counsel (which seem inevitable but need not be)? What are the do’s and don’ts of productively navigating this obstacle and turning it into an opportunity?

Why Conflict Occurs

While the fiduciary duties of directors and officers significantly overlap (see United Food & Com. Workers Union v. Zuckerberg, 2021 WL 4344361 (Del. Sept. 23, 2021) (“The directors and officers of a Delaware corporation owe two overarching fiduciary duties—the duty of care and the duty of loyalty.”)), each has a distinct set of responsibilities. The company’s officers are responsible for day-to-day oversight of the company, providing the board with an appropriate review of the company’s legal compliance programs, and informing them of risks that may require immediate attention.