Board exposure: what a company pays for, and what it actually grants.

Start with the only one of the three written into a corporation statute. Section 142 of the Delaware General Corporation Law requires every corporation to have officers with such titles and duties as the bylaws state, or as the board by resolution determines, and requires that one of them have the duty to record the proceedings of the meetings of the stockholders and directors. The same section allows any number of offices to be held by the same person unless the certificate of incorporation or the bylaws say otherwise. That is the whole legal basis for the combined general counsel and corporate secretary: a bylaw choice made by a board, which the same board can unmake at a meeting.

The second commission is federal and it is a ladder. Section 307 of the Sarbanes-Oxley Act of 2002 directed the Commission to require an attorney who becomes aware of evidence of a material violation to report it to the chief legal counsel or the chief executive, and, if that officer does not respond appropriately, to the audit committee, another committee of independent directors, or the full board. The implementing rule, 17 CFR 205.3, adopted in January 2003 and still in force, names the issuer as the client, requires the report to reach the chief legal officer forthwith, obliges that officer to cause an inquiry, and permits a company to route reports instead to a qualified legal compliance committee. The architecture assumes an officer who can receive a report, run an inquiry, and be checked by directors.

The third commission belongs to the committee rather than to the officer, which is exactly why it is the hardest to grant. Section 301 of the same Act, codified at section 10A(m) of the Securities Exchange Act, requires a listed issuer to have an independent audit committee directly responsible for the appointment, compensation and oversight of the registered public accounting firm, with procedures for accounting complaints and confidential employee submissions, authority to engage independent counsel, and funding from the company for those advisers. The New York Stock Exchange listing standards approved by the Commission in April 2003 add, at section 303A.07, that the committee’s purpose includes assisting board oversight of compliance with legal and regulatory requirements, and that it must meet separately and periodically with management, with internal audit and with the independent auditor. A general counsel in that room is doing work the listing standard assigns to the committee. One who prepares a deck for the finance function to present is not.

None of it is required by a stock exchange, which is the part boards most often get backwards. Nasdaq’s Rule 5600 Series, restated in the initial listing guide the exchange published in January 2026, requires a majority-independent board, an audit committee of at least three independent directors who also satisfy SEC Rule 10A-3, an independent compensation committee, director nomination by independent directors, and a code of conduct. It requires no general counsel and no corporate secretary. Underneath all three sits ABA Model Rule 1.13, which makes the organization the client and requires referral to the highest authority that can act — the reason a board-facing legal officer exists at a private company that will never file with the Commission at all.

Put the three together and the buyer’s question becomes answerable. Not whether a candidate has board exposure, which is unfalsifiable, but: which commission is this company granting, in which instrument, on what date, and which of them did the last person in the seat actually hold? A company that can answer in one sentence is buying an office. A company that cannot is buying a title and hoping the office arrives with it.

In Marchand v. Barnhill, 212 A.3d 805, decided on 18 June 2019, the Delaware Supreme Court reversed the dismissal of an oversight claim against the directors of an ice-cream manufacturer after a listeria outbreak. The court held that the bottom-line requirement of the oversight doctrine is that a board make a good-faith effort to put in place a reasonable board-level system of monitoring and reporting, and that a plaintiff who pleads the board undertook no effort at all to be informed about a compliance issue intrinsically critical to the business states a claim for breach of the duty of loyalty.

Two years later the Court of Chancery applied it to a committee that existed. In In re The Boeing Company Derivative Litigation, C.A. No. 2019-0907-MTZ, decided on 7 September 2021, the court denied a motion to dismiss oversight claims after two aircraft crashes, treating aircraft safety as mission critical and finding it well pled that no committee was charged with direct responsibility for it, that the board did not monitor it regularly, that no protocol required management to apprise the board, and that what reporting existed was ad hoc and one-sided. The audit committee’s risk oversight was pled as financially focused and as never having assessed the risk in question. A company that parks legal, compliance and operational risk in a finance-oriented audit committee and keeps its legal officer out of that committee is reproducing the architecture the court found deficient at the pleading stage.

The third case reaches the officer personally. In In re McDonald’s Corporation Stockholder Derivative Litigation, C.A. No. 2021-0324-JTL, decided on 25 January 2023, the Court of Chancery held for the first time that corporate officers owe a duty of oversight analogous to that of directors: a good-faith effort to put in place reasonable information systems, and a duty not to consciously ignore red flags. The duty is context-driven and area-limited — and the opinion expressly offers the chief legal officer as its example of the officer responsible for legal oversight and for making a good-faith effort to establish reasonable information systems covering it. Read alongside the up-the-ladder rule, the buyer’s problem sharpens: an officer expected to build information systems and report upward, whose only permitted audience is the chief executive, has been given a duty and denied the channel it runs through.

The statute has kept moving, and each move has been a committee-process project. Senate Bill 313, effective 1 August 2024, added section 122(18), authorizing a corporation to contract with stockholders to restrict specified corporate actions, after the Court of Chancery’s decision of 23 February 2024 invalidating founder consent rights as an improper constraint on board authority. Senate Bill 21, signed on 25 March 2025, then recast conflicted transactions and books-and-records: statutory definitions of a controlling stockholder and a control group, safe harbors requiring a disinterested committee or an informed and uncoerced disinterested stockholder vote, and a narrowed inspection right under section 220. On 27 February 2026 the Delaware Supreme Court upheld the safe harbors. Controller transactions now stand or fall on whether a disinterested committee was properly constituted and properly recorded. Outside counsel can advise a special committee. It cannot keep the company’s minute book.

Nor is the question confined to one state. Texas amended its Business Organizations Code on 14 May 2025 to codify a business-judgment presumption for publicly traded Texas corporations, to permit a beneficial-ownership threshold of up to 3% for bringing a derivative proceeding, and to authorize exclusive-forum provisions in the Texas Business Court, which began operating in September 2024. Analysis Group, compiling reincorporations from Commission filings and last updating on 1 September 2026, counted 33 US public companies above $250 million in market capitalization leaving Delaware between 1 January 2024 and 1 July 2026 against five arriving, with twelve departures in the first half of 2026 alone. Against 3,579 US-headquartered listed companies above that screen at 30 June 2026, and a Delaware share of US initial public offerings that rose to 87% in the first half of 2026 from 77% in 2025, this is a specialized surge rather than a migration.

The practical distinction is simple and almost never drawn. An offer letter is a contract between the company and an individual, negotiated by management, and everything it says about board access is a statement of current intention by the person who will be sitting across from the officer when the access matters. A bylaw and a board resolution are instruments of the board: they name an office, they carry a date, and a successor inherits them rather than renegotiating them. Everything a company wants to buy under the heading of board exposure lives in the second category — the corporate secretary appointment under section 142, standing attendance at the audit committee including executive session, a written escalation protocol naming who receives a report under 17 CFR 205.3 and what happens if the response is not appropriate, the qualified legal compliance committee option, indemnification and advancement, and, where the charter has been amended, officer exculpation status.

The board’s own view of what it needs is not a mystery either. PwC’s 2025 Annual Corporate Directors Survey, published in October 2025 from more than 600 public-company directors, found 55% believing at least one director on their board should be replaced, and 68% describing the assessment process as effective while only 49% said the board was sufficiently invested in it. After the last assessment, 28% of directors gave management feedback on the format and content of board materials. That is a workstream with an owner: board materials are the secretary’s product, and a quarter of boards have recently told management the product is wrong.

Set the perimeter against the cost envelope before writing the number. Thomson Reuters Institute’s 2025 State of the Corporate Law Department report, published on 25 March 2025 from interviews with 2,485 general counsel across more than fifty countries, put median legal-department spend at 0.25% of revenue overall, with US medians of 1.00% at $50 million to $1 billion in revenue, 0.28% between $1 billion and $6 billion and 0.12% above $6 billion, and median in-house headcount of three, eight and thirty across those bands. The Society for Corporate Governance found 98% of companies retaining outside counsel for the governance function, a reminder that the in-house officer buys that desk rather than replaces it.

That firm-side desk is worth naming because its existence marks the limit of the dual hat. Cravath, Swaine & Moore publishes a corporate governance and board advisory practice that advises boards on disclosure, internal investigations, special committees and independence questions, and offers independent counsel to outside directors; Debevoise & Plimpton publishes a public company advisory practice covering director duties, disclosure and special-committee representations for more than two hundred public-company clients. Those practices exist because the internal officer is conflicted at exactly the moment a board is investigating management. A company that understands this will treat neither as a substitute for the other.

Which leaves the specification itself. A mandate promising significant board exposure will produce candidates who have attended board meetings, because attendance is the only thing that phrase can be evidenced against. A mandate naming the commission, the committee and the channel will produce a smaller field of people who can describe a decision they carried. Both are legitimate purchases. Only one of them is the purchase most companies think they are making.