Thursday, September 14, 2023

Keep that Bot out of your Boardroom

I regularly attend the Board meetings of the entrepreneurial companies I work with. I find it is a good way for me, as outside counsel, to stay abreast of the business’s strategies, key challenges, and opportunities. I also frequently serve as “Meeting Secretary,” keeping the minutes of the meeting.

At the risk of sounding too lawyerly, recording accurate minutes of Board meetings is one important part of maintaining good governance for your entity. This can be important for a variety of reasons, including holding officers and directors accountable for their actions and helping to prevent fraud and mismanagement, as well as mitigating risks of certain types of litigation, including corporate veil piercing.

While keeping minutes, having the Board approve them for accuracy, and using them for the purposes mentioned above is good governance, most experts agree that the best practice regarding Board minutes is to keep them brief. Yes, you want to document all the items that were addressed and also any formal resolutions that were passed, but you don’t want to show the detail of the conversation. Such detail can be fodder for future shareholder claims (e.g. “see, director X knew that it was a bad idea for you to do Y and said so in the Board meeting but you ignored her").

Three times in the last couple of months I’ve been on virtual Board calls and seen a Bot also in attendance. Of course, I’m aware of the rapid development of artificial intelligence and all of its potential pitfalls and opportunities. I appreciate that having a Bot take notes in a meeting can be a helpful tool to avoid the distraction caused by notetaking. However, having a full record of each Board meeting has never been a good idea, which is why I advise clients not to permit recording of their Board meetings.

When I have suggested that somebody “boot the bot,” I have heard the keeper of the bot claim that they will only use the notetaking for their own personal purposes. As a sometimes cynical lawyer, I know that clever litigators (and other people you might not want to have access to this detail) will find ways to dig up these digital fingerprints if they really want to.

My advice, find other great ways to use AI in advancing your business, but leave the notetaking to actual humans.

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