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Good Counsel: Meeting the Legal Needs of Nonprofits

The following is an excerpt from the book.

 

Good Counsel: Meeting the Legal Needs of Nonprofits

Lesley Rosenthal

320 pages, John Wiley & Sons, 2012

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Mobilizing Legal Forces for the Good

America’s 1 million charities represent a gorgeous array of goodness. They lead efforts to cure diseases, alleviate poverty, advance education, and ennoble through culture.

Although nonprofit organizations can make a big impact, they tend to have tiny or nonexistent legal teams. Even for the lucky few with a lawyer in-house or close by, it’s impossible for one attorney to know enough about all the different areas of law to be able to address all the organization’s needs.

Fortunately, there is plenty of good will in the legal profession for good causes. Pro bono legal services are quite literally yours for the asking. As the General Counsel of Lincoln Center for the Performing Arts in New York for the past seven years, I have innovated a new procurement model for legal services by nonprofits through the Lincoln Center Counsels’ Council. Recently I was asked to help scale up, on a statewide basis, the availability of pro bono legal services for nonprofits in need. Together with a leadership committee, we are piloting in 2012 a new joint initiative of the State Bar Association and the State Attorney General’s Office, called Charity Corps: Lawyers Helping Nonprofits. The initiative is being watched for potential adoption by other states.

This article, based in part on the recently published book Good Counsel: Meeting the Legal Needs of Nonprofits, describes how counsel for a nonprofit can source pro bono legal help.

Know Your Needs

The first step to locating great legal assistance is to survey the organization’s legal needs. Issues are likely to cluster around these categories:

  • Nonprofit corporate law and governance
  • Compliance with the tax exemption
  • Contracts
  • Copyright law and rights clearances
  • Fundraising law
  • Laws relating to the finance and accounting function
  • Labor and employment law
  • Trademark law
  • Consumer regulatory law
  • Real estate law
  • Municipal law/governmental violations, permits, and approvals
  • Government relations (lobbying)

Organizations working in technical or highly regulated fields, such as health care, the environment, or education will have specialized legal needs to add to the list, as will organizations undergoing major construction or expansion. Organizations with significant operations overseas face yet other issues.

For those organizations that cannot afford to hire counsel, a number of good resources connect lawyers with deserving nonprofits. Pro Bono Net, www.probono.net, is a nationwide resource that provides resources for pro bono and legal services attorneys and others working to assist low income or disadvantaged clients. State or local bar associations can also refer organizations to qualified attorneys. In New York, the Lawyers Alliance for New York, www.lawyersalliance.org, provides business and transactional legal services locally for nonprofit organizations helping the poor. The Lawyers Alliance website also publishes a list of providers of business and transactional legal services for nonprofit organizations around the country. Other organizations, such as Catchafire, www.catchafire.org, match volunteer professionals, including legal professionals, with nonprofits calling for help. Law school clinical programs may also have resources to help organizations meet their legal needs.

Some of the nation’s largest law firms have institutionalized the practice of providing pro bono legal services to worthy nonprofits. The legal departments of some major corporations have formally launched programs for their attorneys to provide volunteer legal advice to nonprofit organizations as part of their community outreach efforts. Lawyers on the board of an organization may help craft a pitch and facilitate introductions to law firms and corporations with pro bono practices.

Once legal assistance has been referred or suggested, it’s a good idea to independently research and verify the attorney’s or firm’s suitability for the work—even if the services are being offered for free.

How to Ask for Pro Bono Help

How does an organization most effectively cultivate, activate, and manage in-kind contributors? In the same way that it cultivates, activates, and manages other kinds of contributors—with care, foresight, planning, and follow-through. Here are some steps an organization can take to shape an effective pro bono legal program:

  • Have a peer ask a peer. If the organization is approaching a law firm for the first time, it helps to bring a lawyer already providing pro bono counsel or serving on the board of the organization.
  • Crystallize the project by developing an interesting and well-defined assignment. Accurately estimate the duration of the project and the amount of attorney time needed to complete it.
  • Minimize administrative drain on the volunteer by gathering all the information and documents needed to launch the project at the outset.
  • Arrange for a face-to-face meeting, if possible, at the beginning of the project, to introduce the people and the problem. An in-person meeting at the end allows for a thorough presentation, Q&A, and sincere expressions of gratitude.
  • Clearly state the deliverables needed and the deadline by which they are required.
  • Follow up with the legal volunteer to make sure the work is progressing—even if it’s only a brief e-mail at some point between the initial meeting and the deadline with the subject line, “Just checking in.”
  • Implement the work—release the memo, file the brief, augment or revise the policy—and be sure to let the volunteer know what a difference his or her work made.

Speak to Legal Volunteers’ Interests

Part of the pitch to prospective legal volunteers is appealing to their self-interest. Describe how doing the work for the organization will benefit the lawyers and their firm. Pro bono work builds expertise, provides training opportunities for up-and-coming professionals, and assists in the recruitment, retention, and morale-building efforts of law firms.

Students from elite law schools working on pro bono projects for nonprofit organizations as part of their summer jobs at law firms report that the experiences reflected positively on the host law firm, strengthening the tie between the student and his future employer. In addition to their sense of contributing meaningfully to the mission, lawyers working on pro bono legal projects report gaining valuable additional insights into what it means to be part of the profession, and an opportunity to evaluate and reflect positively on their association with the firm.

Pro bono work also provides for meaningful client exposure, presentation opportunities, and project management responsibilities that may be far greater than a junior or even mid-level attorney has experienced for paying clients. These experiences contribute to the attorney’s professional development as well as building the firm’s knowledge base.

Pro bono work helps a law firm align with a charity its members care about, fostering a sense of esprit de corps, and enticing future paying clients who may share the firm’s values and mission orientation. If a firm is looking to expand into a new area of practice or break into a geographic market, there may be no better way to burnish its brand than to align with a respected and beloved local organization.

Get Help from Law Students

Other opportunities for pro bono service include law students on summer break and recent law grads awaiting bar admission, which can take up to a year. These soon-to-be attorneys cannot yet practice law, but they can carry out research and writing projects under the supervision of an admitted attorney.

The American Bar Association has recently adopted a resolution urging law schools to more adequately prepare law students for legal practice by providing opportunities to gain the knowledge, skills, values, habits and traits that make up the successful modern lawyer. To that end, a small but growing number of law schools have clinical programs specializing in nonprofit law, or business law transaction clinics that work with nonprofit clients. Neighboring organizations can benefit enormously from the participation of supervised law students in a clinical program. The Chief Judge of the State of New York recently announced that candidates for admission to practice law in that state would be required to fulfill a 50 hour pro bono service requirement before being sworn in. Organizations can also harness the energies of law students looking to fulfill mandatory community service hours required by certain law schools by crafting appropriate projects for students to complete.

Get Help from Lawyers in Transition

Even credentialed and seasoned lawyers sometimes find themselves in transition. They may be seeking to move from private practice to an in-house job, relaunching after their department has been downsized or eliminated following a merger, or returning to the paid workforce after taking time off to be with a child or an aging parent. Volunteering as in-house counsel to a nonprofit can provide a valuable opportunity for transitioning lawyers to freshen skills and rekindle passion for the practice of law. A few forward-thinking law schools even have special internships to help mid-career lawyers regroup or reinvent their legal path. Enterprising organizations can help advance such attorneys’ professional interests in the short to medium term by creating volunteer engagements for a semester or two.

These ongoing voluntary engagements can provide a hands-on opportunity to deal directly with clients on quality work, stretching skills outside of the attorney’s usual practice area, and provide a welcome contrast to the increasing specialization commonly found in the private practice of law. Working as an in-house volunteer can also help an attorney sharpen up skills that are hard to come by in private practice: providing abbreviated advice instead of encyclopedic memoranda; crystallizing an opinion that provides real direction instead of hedging bets with an “on the one hand, on the other hand” approach; and recognizing how legal advice fits in with other important considerations such as mission, tax, accounting, governance, strategic, and other matters. Working within an organization reinforces that legal counsel is not a stand-alone commodity but an integral part of the business objectives of the client.

Thank Legal Volunteers

Wise organizations thank their volunteer lawyers early and often. Be sure these special contributors are listed in the organization’s annual report and other publications where donors are acknowledged. If a project is on the agenda for a board meeting or management presentation, consider inviting the volunteer attorney to present the work or at least attend and be thanked.

Savvy nonprofit leaders will offer follow-on projects to keep good volunteers engaged. They will also show an interest in the volunteer’s career development and progress at her firm, encourage her to reflect on her experiences with the organization and how these experiences have contributed to her professional successes and growth.

The Payoffs of Pro Bono Work for the Volunteer Attorney

Identifying and meeting legal needs on a pro bono basis is worthwhile for its own sake. The lawyer who waives his fee has enabled the organization to reinvest critical resources in mission-related expenditures. He may also take satisfaction that his legal work benefits the organization far beyond the narrow definition of meeting the legal needs: It may also fulfill certain donor requirements of good governance, help meet certain grant restrictions, shore up internal controls, and provide reassurance to governmental or private funders. Good legal advice can help the organization better execute its mission – feeding the poor, healing the sick, enlightening through culture, preserving the environment.

In some aspects of the legal professions, being a small cog in a big wheel is a common and mind-numbing experience. If a volunteer engagement permits a professional to work on a project from start to finish, and then see how his work has been implemented or disseminated, the lawyer can obtain professional satisfaction far outweighing the forgone fee.

Working on a large-scale project also provides a better perspective on legal work and how it fits into the overall objectives of the organization. The lawyer can help shape the outcome of an organization’s new business initiative and can take pride in lessening risks or enhancing the bottom line by reducing regulatory implications or tax burdens. These skills translate readily and profitably into the private sector, to the advantage of the attorney and his future clients.

Counseling for the good can make good counsel even better.

"Reprinted with permission of John Wiley & Sons, Inc." Lesley Rosenthal, Good Counsel: Meeting the Legal Needs of Nonprofits, 2012.

 
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