Code of Conduct
A director, officer or employee of the National Association of Criminal Defense Lawyers (“NACDL”), when acting on behalf of NACDL, must comply with the law, act in an ethical manner, and avoid conflicts of interest or the appearance of conflicts of interest. Specific guidance applicable to financial matters and employees is contained in the Audit Committee Charter, the Employee Personnel Manual and the Policies and Procedures Manual.
This Code of Conduct applies to directors, officers and employees of NACDL.
Legal Obligations of Directors and Officers
The obligations of directors and officers to NACDL is governed by District of Columbia Not- for-Profit Corporation Law ("N-PCL") as well as precedents construing that law. The law establishes that the directors and officers owe a fiduciary duty to NACDL, including the duty of care and the duty of loyalty. Nothing in this Code of Conduct is intended to reduce the duties of disclosure as may be required by law.
The duty of care concerns a director's or officer's competence in performing his or her functions as a director or officer. A director or officer must exercise his or her responsibilities in good faith and with that degree of diligence, attention, care and skill that an ordinarily prudent person would exercise under similar circumstances in a like position.
The duty of loyalty owed by a director or officer to a non-profit organization requires that the director or officer act in a manner that does not harm the corporation. The duty of loyalty requires the faithful pursuit by the director or officer of the interests of the corporation rather than the financial or other interests of the director or another corporation he/she serves. It further requires a director or officer to avoid using his or her position to obtain improperly a personal benefit or advantage that might more properly belong to the corporation. To satisfy the duty of loyalty, the director or officer must act in good faith and in a manner he or she reasonably believes to be in the best interests of the corporation.
Conflicts of Interest
Except with disclosure of the conflict to and consent of NACDL, a director, officer or employee may not act in carrying out his or her NACDL responsibilities if he or she may be affected by a conflict of interest. A conflict of interest arises when a personal, business, financial, or, in the case of a lawyer, client interest of the director, officer or employee may affect the objectivity of the director's, officer's or employee's actions on behalf of NACDL or conflicts with the interests of NACDL. A personal interest may arise from the director's, officer's or employee's association with another bar association or non-profit corporation. A business interest arises when the director, officer or employee is an employee or consultant to or has another business arrangement with, another public or private concern. A significant financial interest includes an ownership interest in the securities of a public or private concern. A concern in which a director or officer has a personal, business or financial interest is referred to in this Code of Conduct as an "Entity." For purposes of this Code of Conduct, a business or financial interest of the spouse or any family member who lives in the individual director's, officer's or employee's household is attributed to the individual. A business or financial interest of a partner, associate or employer, or a more remote relative, of an individual director, officer or employee, is not automatically attributed to the individual. However, as a matter of good practice, where the individual is aware of such a business or financial relationship that conflicts with the interests of NACDL, the individual should disclose it to and obtain the consent of NACDL in order to avoid the potential for subsequent embarrassment.
Situations in which a conflict of interest may arise include, but are not limited to, those where the individual:
- Approves or recommends the purchase of major equipment, materials or other items for NACDL from an Entity.
- Negotiates or influences the negotiation of contracts between NACDL and the Entity.
- Accepts gifts, gratuities or special favors from any person or Entity that does or is attempting to do business with NACDL, other than gifts with a fair market value in any year of $50 or less.
- Uses his or her position or activities for NACDL to further the interests of a particular client or other person or Entity.
- Espouses a position (by speaking or voting for the position) that the lawyer knows would benefit a particular client without disclosing such fact (but not necessarily the name of the client).
Recognizing that business relationships routinely exist between and among directors, such relationships do not constitute a conflict of interest, or the appearance thereof, unless such a relationship could impact a director’s judgment on a matter affecting NACDL.
Misuse of Confidential Information of NACDL
Except with disclosure to and consent from NACDL or in furtherance of NACDL activities in which he or she is authorized to act, a director, officer or employee shall not reveal to any third person or use for his or her own purposes any of NACDL's proprietary business or financial information, records, results, work product or other information acquired in connection with the director's, officer's or employee's NACDL activities that is not generally available.
Preservation of Tax Exemption
Directors and officers should be aware that NACDL is a charitable organization and that, in order to maintain its federal tax exemption: (i) it must engage primarily in activities that accomplish one or more of its tax-exempt purposes, (ii) it may not allow a substantial part of its activities to consist of carrying on propaganda, or otherwise attempting to influence legislation (except as otherwise provided by Internal Revenue Code Section 501(h)), and (iii) it may not participate in or intervene in (including the publication or distribution of statements), any political campaign on behalf of (or in opposition to) any candidates for public office.
NACDL and its Board members shall not be bound by any political statements or activity of any director or officer. No director or officer who makes a political statement or engages in political activity shall state or imply that such statement or activity is on behalf of NACDL.
Restrictions on Representing NACDL
Each director, officer or employee when acting as a representative of NACDL shall conduct himself or herself consistent with the fiduciary duty of a Board member so as not to adversely affect NACDL’s public image or credibility or hinder the accomplishment of its mission. In any interaction with the public, press or other entities, a director, officer or employee may not speak for NACDL other than to repeat explicitly stated Board positions. However, a director, officer or employee who is a member of an NACDL committee or section may state the views of the committee or section as authorized by the President or duly adopted policies.
A director, officer or employee of NACDL may not use NACDL stationery for personal correspondence or to conduct business or marketing on behalf of his/her law firm, employer or other organization.
Administration of Code of Conduct
Whenever this Code requires a director or officer to make disclosure to and obtain the consent of NACDL, such disclosure shall be to and such consent from the Board of Directors. Whenever this Code requires an employee to make disclosure to and obtain the consent of NACDL, such disclosure shall be to and such consent from the Executive Director. If a director, officer or employee has reason to believe that another director, officer or employee has an undisclosed conflict or potential conflict of interest or other violation of this Code, he/she should disclose the reason for such belief to the Chair of the Audit Committee, who will, in consultation with the Executive Director, advise the Board of Directors on the existence of a violation.
The Secretary, annually and at other times on request from any member of the Board, shall make available to the members of the Board and officers copies of this policy and forms for disclosing conflicts. The Executive Director shall do the same with respect to the permanent staff.
Any officer, director or employee may request a determination from the Board as to the existence of a conflict of interest. The Board’s decision, by majority vote, shall be determinative.
All officers, directors and employees shall be advised of this policy and must acknowledge in writing their willingness to abide by it as a condition of service as an officer or director or of employment.
Personal Conduct Policy
This Personal Conduct Policy applies to all officers, past presidents and members of the Board of Directors (“Board”) of the National Association of Criminal Defense Lawyers (“NACDL”).
This policy does not address issues related to legal and ethical duties the officers and Board members owe to NACDL as they are addressed in the Code of Conduct (“Code”) adopted by the Board on August 2, 2008, nor to the procedure for raising complaints of violations of the Code by officers, past presidents, members of the Board or staff addressed in the Whistleblower Policy adopted by the Board on August 2, 2008, nor does it address inappropriate workplace conduct by employees of NACDL (including NACDL’s prohibition of harassment and discrimination), which are covered by separate policies adopted by NACDL.
Prohibition on Misconduct that is Equivalent to Discrimination and Harassment
Officers and members of the Board are expected to act in accordance with the highest level of businesslike conduct. Just as NACDL prohibits conduct that would constitute unlawful discrimination or harassment by its employees in the workplace, and understanding that its Board officers, past presidents and Board members are not employees of NACDL and therefore not covered by employment laws, it will not tolerate equivalent conduct by its officers, past presidents or Board members. In their dealings with each other, with NACDL employees and members, and with members of the public in their capacity representing NACDL, officers and Board members must avoid any conduct that a reasonable person could interpret as discrimination or harassment if this were in an employment context.
Discrimination includes taking negative actions based on an individual’s “protected status” which includes, but is not limited to, race, color, religion, gender, sexual orientation or any other characteristic protected by law, and/or encouraging or assisting anyone in taking such discriminatory action.
Harassment based on an individual’s protected status is also prohibited. Such prohibited harassment includes, but is not limited to:
- sexually suggestive statements, questions, insults or jokes, or sexual innuendos;
- repeated unwanted sexual flirtations, advances, or propositions;
- pressuring for sexual activity, including offering benefits in exchange for sexual favors or denying benefits in response to a refusal to provide sexual favors;
- comments of a sexual nature about a person's physical attributes;
- offensive touching or assault, obscene gestures, or suggestive sounds;
- use of slurs or negative stereotyping;
- using NACDL e-mail or Internet resources to receive, view, or send offensive jokes, pictures, posters, or other similar material;
- intimidating acts, such as bullying or threatening based on an individual's protected status;
- circulating or displaying offensive pictures, letters, notes, e-mails, invitations, or other similar materials;
- any other conduct that shows hostility toward, disrespect for, or degradation of an individual based on the individual's protected status.
Any officer or Board member that experiences, observes, or becomes aware of any conduct he or she believes would be the equivalent of discrimination or harassment (were this in an employment context) must immediately follow the Reporting Procedure described below.
To ensure the Board knows of any such misconduct and can respond appropriately, officers and Board members must report any possible violation of this policy to a member of the Internal Complaint Committee (“Committee”)which shall consist of the President and two of the President’s designees, neither of whom may be employees of NACDL.
Reports must be made to any of these Committee members. A member of the Committee will take the lead to promptly and thoroughly investigate any report of harassment or discrimination. The investigation will be kept confidential to the extent possible, and information relating to the investigation will be disclosed only on a need-to-know basis. If the investigation confirms this policy has been violated, appropriate corrective action will be taken to prevent its recurrence. If the Committee concludes that corrective action warrants that the person who was accused of misconduct be removed from the Board, then it will refer the matter to the full Board consistent with the removal procedures set forth in NACDL’s bylaws.