Dear Board Doc: How to Make Sense of Counsel in Boardroom?

The MFDF’s Board Doc is an occasional feature of the Daily News Feed that features questions from our readers. The answers and commentary provided in our responses do not constitute legal advice and should not be treated as such. Please consult with your independent counsel on questions of compliance with the securities laws and director fiduciary duties. If you would like the Board Doc to consider your questions, please e-mail

Q: I have noticed that there are different sets of lawyers attending our board meetings and would like some clarity on who these various teams of lawyers represent.

A: Mutual funds have various interests which can be represented by different counsel at different times. You may see different approaches on which lawyers are in the boardroom based upon facts and circumstances of the individual fund complex, the size and complexity of complex, level of resources, and historical practice. Moreover, the1940 Act has specific requirements pertaining to who is eligible to serve as counsel, for example to the fund board and to the funds’ adviser. The adviser, the funds, and the fund board may have legal issues that could potentially conflict with one another. For lawyers, each of these groups is a potential legal client that will not necessarily always be on the same side of an issue. In some cases, one law firm serves as both fund counsel and board counsel with separate adviser counsel; in others adviser and fund counsel might be the same with dedicated independent director counsel; or in some cases only fund counsel with no dedicated independent director counsel. Some firms may have separate counsel for each of the fund, the adviser, and a dedicated board counsel. For a more in-depth discussion of who represents whom in the boardroom you can listen to an archived MFDF webinar “Understanding the Roles of Independent Trustee, Fund and Adviser Counsel,” available here.