Inquiry is made for a clarification of Formal Ethics Opinion 83-F-46 relating to whether members of the board of directors of a national bank are management or administrative individuals who may not be interviewed by the adverse attorney without the consent of the attorney for the bank wherein the bank is a party in pending litigation and represented by counsel.
The directors of the bank are subject to and covered by the provisions of the National Bank Act, 12 USC Section 73 et seq. As such, they have a fiduciary relationship to the shareholders and depositors of the bank under the National Bank Act and bylaws of the bank and have a duty to protect, manage and administer the assets and business interests
of the bank in compliance therewith and any applicable regulations properly promulgated by governmental agencies responsible for the regulation of national banks. They also elect officers of the bank. Furthermore, the directors are given access to confidential business information during the ordinary course of their duties as directors. As members of the board of directors, they collectively exercise, through their individual votes as directors, their responsibilities, powers and duties conferred to and imposed upon them by law.
Accordingly, the members of the board of directors of the bank are included within the scope of those persons identified in level agents or employees who may not be interviewed by the adverse attorney without the consent of the attorney for the bank wherein the bank is a party in pending litigation and represented by counsel.
This 13th day of March , 1984.
G. Wilson Horde
T. Maxfield Bahner
Charles T. Herndon, III
APPROVED AND ADOPTED BY THE BOARD