I see all these questions you answer every week, and wonder if they are not a breach of confidentiality. When can an individual ask a professional a question, just as an individual, not on behalf of the board, but just to clarify their own understanding? Making sure to not state the organization's name and make plain it is not on the board's authority?
Your question raises several questions about confidentiality. Let’s start with the easy one. The question and answer when published here are not confidential. The submission form makes clear that there is no attorney-client relationship and that the answers are general legal information only and not to be acted upon without prior consultation with appropriate professional advisers. Every page on the website carries the same disclaimer. I help preserve confidentiality in answering these questions, however, because I do not identify the individual or the organization involved.
But when may an individual ask such a question, with or without identifying the organization involved? An observer of the organization can ask at any time about anything. An observer has no duty to the organization.
A member of the organization, unlike a director or trustee, does not normally have a fiduciary duty to an organization and has broad latitude in his or her conduct towards the organization. Unless the organization has a special code of conduct dealing with the issue, I would assume that a member could ask at any time.
The issue of board confidentiality is much more interesting because so many people think that everything discussed in a board meeting is “confidential.” And yet that is clearly not the case, especially with membership corporations where the members generally have a right to know what is going on among their representatives.
I would argue that a director has the right to ask such questions at any time the director is not satisfied that he or she knows the correct answer and wants more information in order to fulfill the fiduciary duty to the organization. The other directors cannot invoke a “confidentiality” rule to prevent the director from satisfying his or her need for the information.
A director has a duty not to harm the organization, however, and if the organization would be harmed by identifying it in connection with the question, it may be necessary to ask anonymously. I am not prepared to make anonymity an absolute requirement because there may be no way to get the advice to protect the organization without identifying the organization. Judgment and good faith intent are the critical issues here.
For more discussion of board confidentiality policies, listen to our recent webinar: Five Key Policies: Making Them Effective.