Board governance is no longer just a best practice; it has become a strategic necessity for companies facing heightened litigation risk and regulatory scrutiny. During the ABA Business Law Section’s Spring Meeting CLE program, panelists emphasized that process discipline is essential for protecting privilege and supporting effective boardroom culture. The discussion, moderated by Paul T. Chryssikos of Lincoln Financial, featured Mary A. Francis of Chevron Corporation, Tina V. John of Unisys Corporation, and Alex G. Romain of Jenner & Block LLP. Together, they categorized the current setting into four key themes: process discipline, board effectiveness, managing risk, and boardroom culture.
Process discipline is foundational to effective governance and begins with the record: board minutes. Minutes serve as both the legal and evidentiary record of board deliberations and fiduciary oversight, and they often become central in litigation matters. Consistency in drafting is also a fundamental necessity. The minutes should use careful language that avoids ambiguity or confusion. For example, if a company uses the word “unanimous,” it should use that term consistently every meeting. Minutes should remain objective, avoid emotional language, and limit jargon or coded terms that could be misinterpreted.
John emphasized that many motions to dismiss are granted solely due to the minutes properly reflecting informed board oversight. At the same time, minutes should not become transcripts. They must reflect that directors were informed and engaged and should avoid unnecessary detail about tense exchanges or distractions during meetings. When there is a dissenting opinion, identifying director(s) by name may be inappropriate, unless specifically requested. Romain reinforced that point from a litigator’s perspective, noting that while minutes are not intended to be transcripts, litigators often treat them as such and question whether something happened based on whether it is clearly described in the minutes.
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Draft control is also critical. Access should be limited to only relevant stakeholders, and older versions should be deleted to reduce discoverability risk. Furthermore, the use of voice/video recording is strongly discouraged. The use of artificial intelligence tools for note-taking is deeply problematic due to the sensitive information being captured. AI tools should be completely avoided unless the tool is closed source and contains tight controls that delete the old records once the official minutes are produced.
Governance does not stop at documentation. Director orientation and onboarding are critical to support good culture and overall board effectiveness. During orientation, directors should receive a broad overview of the business and all governance documents such as bylaws, policies, and organizational/structural charts. When possible, directors should also receive deeper exposure to the company’s operations and leadership team. “This is the first time leadership can really build their relationship with the board,” John said, emphasizing that onboarding also helps identify where directors may need additional education or support. The purpose of orientation and onboarding is simple—maximize a director’s ability to contribute and provide value.
Committee assignments and leadership positions also require a strategic approach. Each member should be evaluated based on their experience and subject matter expertise, which will help determine what committee(s) they are appointed to. Rotating committee chairs/members can also be valuable for development and accountability, although it may be unnecessary when effective leadership is already present.
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The importance of manageable board materials cannot be overstated. In-house lawyers should constantly question the purpose of certain materials being presented to the board and ensure they are concise, consistent in style, and written in plain English. The consensus from the panel was clear: The board should not be overloaded with content. Doing so limits the ability of the board to focus on issues that are critical to the success of the company. This may also encourage less engagement and the use of external tools for synthesizing (e.g., AI), creating additional risk.
Board risk management is most critical in areas such as conflicts of interest, privilege protection, and technology controls. Conflicts of interest can undermine the duty of loyalty, erode trust, and create significant litigation exposure. Companies should maintain full conflicts policies with clear disclosure protocols and should never assume directors intuitively understand where conflicts may arise. “Don’t assume that smart, sophisticated people know these things,” Romain said. When conflicts arise, directors should be immediately recused from discussions and denied access to relevant materials, and those actions should be documented in the minutes. It is imperative to uncover conflicts early to avoid significant problems in the future. When the issue is not clear cut, companies should err on the side of caution. As John explained, “The record is always examined in hindsight, and you will not receive the benefit of the doubt.”
Privilege protection is also an area of significant risk. There is a common misconception that labeling a document “attorney-client privileged” automatically protects it. However, privilege depends on the actual legal purpose of the communication. Legal advice should be clearly separated from business advice, and board minutes should never provide detailed summaries of privileged discussions. Third-party involvement further complicates issues and presents emerging challenges, particularly with AI tools. Most AI platforms function as third parties for privilege purposes, making careful platform selection essential to protecting the company’s privileged information.
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Even the best governance structures can fail without trust, professionalism, and decorum inside the boardroom. Directors should avoid scope creep into management roles, monopolizing conversations, or creating side discussions that distract from strategic board discussions. Board confidentiality is equally important because trust can quickly collapse if information leaks. Boards should also design meetings for meaningful discussion rather than management presentations. Presentations should consume no more than half of the meeting time, leaving ample time for directors to engage, challenge, and deliberate on strategic business decisions.
Board evolution and director turnover can also be healthy and effective, particularly as strategy changes. Directors should regularly assess whether they remain the right fit for the company’s future needs. Deeply entrenched boards that lack new skills can create stagnation and activism risk. Regular board evaluations help support board evolution, whether conducted internally or with outside assistance; evaluations help prevent complacency and improve overall board effectiveness. “If you don’t do it, an activist will,” Francis warned.
