A Tale of Two Duties: Looking Out, Looking In

(Originally published in National Parliamentarian, Volume 65, Third Quarter 2004; subsequently published in The Nevada Lawyer, Volume 14, Issue 5, May 2006)

By Travis N. Barrick

Most, if not nearly all, non-profit, civic, and political groups wisely provide for the positions of a general counsel and a parliamentarian. This article is intended to explain why it is unwise to have the same person simultaneously fill both positions. The far better course is to retain the services of a general counsel and a professional parliamentarian.

There is a tendency to allow the roles of general counsel and parliamentarian to be filled by the same person. The rationale might go something like this: We are required to have a lawyer that is licensed to practice law. Lawyers cost money. Professional parliamentarians cost money, too. We could save some money by having the lawyer be the parliamentarian, at the same time. Besides, our lawyer is our general counsel because we trust them to watch out for our interests. And they have the air of authority by virtue of their standing and education. Therefore, we don’t really need a professional parliamentarian.

Underlying the tendency to combine these positions are two misunderstandings: first, there is the erroneous assumption that lawyers know parliamentary law, and secondly, there is a fundamental misunderstanding of the different roles these two positions have to play in the workings of the organization.

First, there is the erroneous assumption that lawyers know parliamentary law. Just because a person has completed the three rigorous years of law school does not mean that they have ever encountered parliamentary procedure. The subject is not even mentioned in the leading textbooks on Civil Procedure, Constitutional Law, or Corporations. Not one credible law school in the country teaches a single one-unit course on parliamentary procedure.

This does not mean that a lawyer can’t know parliamentary law, but if they do, it is because they learned it on their own, apart from their legal training. The famous Gen. Henry Robert, author of the preeminent work on parliamentary law Robert’s Rules of Order, tackled the subject of parliamentary procedure because the people of his day assumed that he had the necessary leadership skills just because he was a West Point graduate. His experience at presiding over organizational meetings was so difficult that he later wrote, “My embarrassment was supreme. I plunged in, trusting to Providence that the assembly would behave itself. But with the plunge went the determination that I would never attend another meeting until I knew something of… parliamentary law.” Out of that early embarrassment came forth his hunt for a proper manual of parliamentary procedure, and finding nothing suitable, he set about writing one himself.

Therefore, given the lack of formal training on the subject, the common assumption that lawyers know or should know parliamentary procedure is likely to be as inaccurate today as it was for Gen. Robert back in the 1800’s.

Secondly, even if the general counsel knows some parliamentary law, it is unlikely that they can simultaneously fulfill both functions because of fundamental misunderstandings of the different roles these two positions have to play in the workings of the organization. As seen in the discussion below, the general counsel’s primary focus is outward; that is, how the organization connects with its surrounding world. On the other hand, the parliamentarian’s primary focus is inward; that is, how the organization defines itself and conducts its internal affairs.Of course there is some overlap of these perspectives, but as will become apparent below, the areas of intersection are minimal compared to the important differences.

The four fundamental differences discussed below are: 1) the manner in which the positions are filled, 2) the duty owed by each, 3) the difference if focus, and 4) the consequences of failure.

Difference in Filling the Position

The general counsel is typically a) elected by the membership, b) hired by the Board, or c) hired by the Executive Director with a presumption of establishing a long-term relationship with the organization. The sources of the appointing power in all three examples given above are enduring bodies that exist at all times in the life of the organization.

The organization would not exist without a membership and, as long as there is a membership-based body, it is empowered to choose its legal representation. Boards of Directors, while there is turnover in personnel, are likewise enduring bodies that function throughout the life of the organization. Executive Directors, though subject to much more turnover than is generally desirable, do tend to endure through successive administrations and therefore represent the continuous functions of the organization.

From these illustrations, it is seen that the appointing power for the general counsel resides in the continuous, enduring organs of the organization. This fact tends to establish the propriety of having a long-term relationship between the organization and the general counsel. It would indeed be very troubling to have high turnover in this important function.

Conversely, the current executive officer (Chairman, President, etc.) generally selects a parliamentarian for service during their term. Executive Officers are elected for a specific term and many are subject to term limits. Therefore, the very nature of their office is temporary and most, if not all of their appointments expire with the end of their term of service.

The power to appoint subordinate officers is universally recognized as part of the delegation of duties by the organization to the Executive Officer. Alexander Hamilton’s Federalist No.66 observed that in nearly “all the governments with which we are acquainted … those who hold office during pleasure [are] dependent on the pleasure of those who appoint them.”2 Similarly, Robert’s provides that “the president should be free to appoint [a parliamentarian] in whom he has confidence.”3 This is arrangement is reasonable since the president’s administration will be judged based on their performance in office. Therefore, the president should be free to appoint those subordinate officers that will, in their own judgment, assist them perform their duties optimally. The unwritten mantra among professional parliamentarians is that their job is to “make the president look good”; the obvious corollary being that the president may at any time replace an unsatisfactory parliamentarian.

From the above, it is seen that the appointing power for the parliamentarian resides in the current administration whose continued operation is subject to the cycle of elections and term limits. Given the potential for differences in personality and administrative styles, it would be troubling to force a particular parliamentarian upon an unsatisfied president. This is not to say that the parliamentarian cannot have a long-term relationship with an organization; but it is clear that in most cases, the parliamentarian serves at the pleasure of the president.

Difference in Duties

The general counsel has a duty to protect organization, and its assets, from external liability. In our litigious world, an organization can be sued by just about anybody for just about anything. Someone must keep constant watch over the organization’s contact with the rest of the world in the name of risk management. This means anticipating negative reactions to actions taken by the Board, superintending all contracts, representing the organization in its dealings with the government, and vigorously defending the organization when it is sued. The general counsel is hired precisely to perform these functions.

The general counsel is also hired as an advocate for the organization; their arena is the adversarial system of the larger world wherein opposing parties are expected to put forth vigorous champions.

In contrast, the parliamentarian has a duty to protect organization, and its processes, from internal dysfunction. Group decision-making is usually a difficult, messy affair that begs for an orderly process managed by an impartial president. Someone must stand at the ready to assist the presiding officer in shepherding the assembly to actionable consensus or nothing will be decided. The parliamentarian is the person who knows the specific decisional rules of the organization, as codified in the Bylaws, as well as general parliamentary law provided for in the adopted parliamentary authority, usually Robert’s Rules of Order Newly Revised. A lack of expertise in these matters is the most common dysfunction in organizational behavior and the source of the ubiquitous complaints about the inability to get anything done. The parliamentarian has the expertise to address these dysfunctions and complaints and is uniquely qualified to discharge this duty.

The parliamentarian is not hired as a champion of the organization, but as an internal arbiter of the process, a guarantor of fairness among the parties. As such, the parliamentarian is more like a shadow judge, assisting the president in making rational rulings on procedure and process.

Difference in Focus

The general counsel must be primarily concerned with the outcomes of the decisional process for it is their duty to deal with the consequences. They must negotiate the contracts authorized by the Board, represent the organization when sued because of actions taken by the Board, and defend the organization before the government and the public. The general counsel has an obligation to anticipate negative consequences and to apprise the Board in advance of any decision-making so that the Board can make informed decisions. Thus, the general counsel must primarily focus on the results of the decision-making process.

Concurrently, because the organization has the right to choose its own decisional methods, it is entirely proper for the general counsel to yield significant deference to the choice of process that the organization chooses to use.

On the other hand, the parliamentarian must be primarily concerned with the decisional process itself because of their duty to help the organization achieve its stated purposes. Their duty to the organization requires them to skillfully apply parliamentary law to the decisional method because it “is the best method yet devised to enable assemblies of any size, with due regard for every member’s opinion, to arrive at the general will on the maximum number of questions of varying complexity in a minimum amount of time and under all kinds of internal climate ranging from total harmony to hardened or impassioned division of opinion.” Thus, the parliamentarian assists the organization fulfill the reason for its very existence.

The parliamentarian must be primarily concerned with the decisional process itself also because the manner in which decisions were made in the present can have a definite effect on the decisional process in the future, giving rise to thepernicious adage: “We’ve always done it this way.” Thus, the parliamentarian is ever the educator and improver of current decisional methods.

On the other hand, the outcomes of the decisional process can’t be their first priority because it is critical to the parliamentarian’s mission to protect the perception of impartiality. A detached observer is precisely what is called for and this role is in direct contrast to that of the general counsel.

Difference in Consequences of Failure

Everybody makes mistakes, but when a general counsel makes a mistake, there are potentially serious consequences, both to the organization and to the general counsel themselves. Organizations can be sued for damages for injuries caused by their actions, for breach of contract, and for improper treatment of its members, officers, and employees. The organization itself, and its assets, is at risk of being tapped to pay the cost of that mistake and the cost of its defense.

The general counsel, by virtue of their fiduciary duty to the organization, bears their own, independent risk of failure. For this reason, malpractice insurance is a standard requirement in the profession. It is in place to protect the general counsel, not from intentional poor performance, but for the everyday mistakes that all of us can make in the good faith performance of our duties.

When a parliamentarian makes a mistake, there may well be legal consequences, but only after there is a failure of the organization to utilize internal corrective procedures. Parliamentary law provides a number of methods to undue inappropriate actions: Reconsider, Rescind, Repeal, Annul, Amend Something Previously Adopted, Renew, and Recommit. Long before litigation ensues, the organization may well unwind improper actions and rectify the situation by going back and doing it properly. These are steps that a well-trained parliamentarian has at their disposal, for the good of the organization.

It is also illuminating to note that there is no well-developed market for malpractice insurance for parliamentarians. That situation may well change as the role of parliamentarian gains prominence in the new world of heightened scrutiny over corporate governance. But to date, there are no reported cases of an injured third-party suing the parliamentarian for injuries caused by a failure of the parliamentarian to properly advise an organization. Thus, there is no insurable need to protect against such a suit with malpractice insurance for parliamentarians. [Subsequent to the original publication of this article in the Third Quarter of 2004, the National Association of Parliamentarians has endorsed liability insurance offered by Association Insurance Management of Dallas, Texas, tailored to the needs of parliamentarians.]

Conclusion

Despite the potential appeal, then, of combining the positions of general counsel and parliamentarian within an organization – whether for cost savings or convenience – the fundamental differences between the two positions make this a risky choice. Given the differences in how the positions are filled, in the duties they must perform, in the focus of their activities, and in the consequences of their failure, it is unlikely that a single person will be successful at performing both roles simultaneously. The prudent organization will take the time to find two people with the skills and aptitude to fill these distinct positions separately.

(Originally published in National Parliamentarian, Volume 65, Third Quarter 2004; subsequently published in The Nevada Lawyer, Volume 14, Issue 5, May 2006)