I’ve been catching up on the AR-15 80% build topic and it’s become apparent that many of us, although not credentialed, are smart enough to read and interpret various laws and regulations as we see fit. Even BOD members have chimed in on that topic.
My question is two-fold: A) are any of our members attorneys? (Or at least sufficiently experienced in the legal field). B) would it be worthwhile for the board to have a “legal attaché” in charge of researching/refereeing discussions that require a legal interpretation for the board’s consideration?
I feel like a legal attaché could provide a level of counsel/protection/separation for the board from the random issues that we, by definition as makers, are bound to encounter. The AR discussion is a prime example.
I feel like this might be an important consideration for the future. My career (fair disclosure: while raised by attorneys, I am not one) requires that I constantly read and interpret contracts and laws. 80% of my work interactions are with attorneys (we are testifying experts). While I may not be the best eventual candidate for this proposed position, I would offer to fill the position until the best qualified member could be recruited. (I think I could recruit some really great influential attorneys as well). Point is: with 1300+ members, surely we have an attorney that is willing to contribute.
I doubt you will find an attorney that would put their reputation on the line for an ATF regulation.
Even if you did, in today environment of guilty until proven innocent all it would take is a complaint to the ATF and DMS wold be out thousands of dollars and the loss of equipment for months proving you were right.
I’m a firm supporter of the second amendment and my rights to carry, but a wise man once told me to pick your battles and to never pick fight that will cost more than you stand to gain.
I really like the idea. I’ll also point out this isn’t an original idea as it has popped up in the past when we have gotten into other legal arguments. We do have some members that are practicing lawyers, and I’ve heard from some of them that they are not willing to give legal opinions on items, because it would make them liable.
Past the liable claim, the other hard question is who’s point of view should the legal “interpreter” be trying to support? We got into a pretty big discussion about “open records” in the past and we did reach out to legal council on the topic. But, there was a question as to who the legal council was working for? Where they working for the Space and the members or more specifically the Board of Directors. When listening to the questioning at the time it seemed like our council at the time was trying to support the opinion of the board, rather than trying to find the most legally sound solution. This was probably not due to the some malicious intent in either party, but rather a discussion of cost. I could see it being much harder to prove something legal, rather than finding some minutia that questions the legality.
I have my fingers crossed you can figure something out on this @JRay
A prosecutor does not need to win a case against you to inflict terrific damage against your finances, career, or life. They need only utilize the tremendous resources of the state to press charges.
I’m not thinking of someone officially representing DMS and giving their paid opinion. That’s what retained counsel is for. I’m thinking of something more akin to an in-house counsel position. Same thing as mandating that one board member have a J.D. The position would be responsible for showing up to board meetings, listening, and telling the board a) obviously don’t do that (not saying this is a problem right now. I have no clue) and b) you guys are discussing something complicated that probably needs a paid opinion to cya. As a result, when issues arise within the membership, the board can say “we considered it”.
Essentially it’s all about CYA for the board. With the AR-15 discussion that I read that started this post, I got to thinking that if the board had an “officer” or director that could tell them to go get a real paid opinion, they could limit their personal liability if (insert fed agency) came after them because they could demonstrate that the organization had controls in place to be informed from a legal standpoint.
The proposed Officer would not be liable, as the position would not be responsible for offering a legal opinion. Any lawyer considering the position would hopefully craft a great indemnification agreement prior to start.
Hell, I’d be happy with a law student.
Imagine you’re a director that’s somehow facing criminal charges because somebody at the space did something stupid that the coppers disagreed with. In your defense you could say that you at least, to the best of your abilities, had considered the legal implications of whatever charges being brought. It may not get you all the way home, but it relieves you of being negligent.
We’re all in pretty much uncharted territory. That’s why the whitehouse had that nation of makers thing. It was in part to help makerspaces get recognized as an organization. For the longest time insurance didn’t know what box to check when we tried to get it.
Do you think it would be better to be knowingly negligent or unknowingly negligent? One feels more like a mistake while the other seems more criminal.
I also wonder if CYA for CYA’s sake is a good goal of our group? We keep acting as though if anything goes wrong, all down fall will be on the Board of Directors. I think they will most likely be the first target, but more than likely the liability is spread further among our membership as a whole. Thus we distribute that big possible cost to the 1300 among the many of us making is a much smaller burden.
Thanks for making our crazy idea possible everyone!
Being knowingly negligent is more akin to the accepted term “gross negligence”. There’s plenty of details surrounding the definition, but it’s based on the “reasonable person” standard, which coincidentally also has a plethora (or a plethora of plethoras) of interpretation. Basically I’ll call it the “you should have known better dummy” standard.
I don’t worry about unintentional negligence, as that’s usually covered by d&o insurance, which I now have been informed that we have.
@Nick, I get what your saying about over-CYA’ing the CYA, but I sure as hell wouldn’t want to rely on member donations to fund a board defense. We’re not a homeowners association or a taxing authority, so we really don’t have the ability to make people chip in for the greater good. Especially if people were unsure how we got into any given situation in the first place.
I guess the HOA example isn’t bad. Mine doesn’t have an attorney on the board, but I’m sure we’d love to. I guess my original line of thinking is that the 'space is much more likely to run into a grey area than other non-profits.
Well, there’s CYA, and then there’s CYA. There are many times, when covering your ass is a mighty wise thing to do. A relevent example for South Dallas bicycle enthusiasts:
Let’s say, you had a nice new bicycle, and wanted to go to a really great park and ride. Unfortunately, in order to get to this awesome park, you must ride through an area known to be infested with feral dogs running in packs. Although many riders do pass safely through the area, many others are pulled from their bikes, whereupon their cascasses are devoured and savored by the errant pets.
But dammit, you want that park. So what to do?
A) Trust that god is a liberal, and ride right to the park with a song in your heart, and not a care in the world.
B) Take a few precautions. Perhaps a can of OC spray and a G36? I assume you’d take precautions suitable to the threats faced, yes?
Pretty much the same question, just a different pack of dogs.
I feel like if it is to be, it should definitely be attorneys… plural. Man, one lawyer just breeds more in time though, so if we brought in a whole den of them… i mean. Lot of things to consider. I’m not sure
Meh. One = good. Two = great. Three = a lobbyist. Nick had a fair point. Get too many of them in the same room and it’s possible to forget what color the paint on the wall really is… all in moderation I suppose.