Weighing in about metrics

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Lawyers As Nonprofit Directors – Maximizing Opportunities, Mitigating Risks

By Guest Poster Lesley Rosenthal

Note:  This article is a recap of Lesley Rosenthal’s presentation at Proskauer’s 17^th Annual Trick or Treat Tax Exempt Seminar, November 29, 2012Attorneys can reap enormous rewards by serving on nonprofit boards.  Lawyers derive tremendous personal satisfaction in governing an organization that is meaningful to them.  They can do the public good by participating in a charity that feeds the poor, heals the sick, enlightens through culture and education, or preserves the environment.

Nonprofit board service is prestigious, and invaluable for professional networking.  It is also a great remedy for the ennui that sometimes sets in when lawyers work inside big law firms, corporate departments or government agencies, and a cure for the isolation of solo or small-firm practice.  A lawyer who serves as a nonprofit trustee is likely to quickly become a trusted and valued member of the team, whose individual contributions markedly enhance a worthwhile enterprise.

Board service may lead to (or in some locales even qualify as) pro bono work.  Suitable pro bono opportunities are sometimes hard to find, particularly for corporate or transactional lawyers.  Most important is the opportunity to serve the public interest in a meaningful way, to bring professional skills to bear in a collegial context that is different from an otherwise adversarial professional realm.

Why Nonprofit Boards Want Attorneys

For their part, organizations wish to recruit lawyers to their boards for a variety of reasons:  legal expertise and perspectives, stature, good judgment, negotiating skills, and of course financial contributions.  The fiduciary duty of care requires that board members attend meetings and pay attention to the governance of the organization, overseeing management in fulfillment of mission. In addition, most nonprofit board memberships come with a (stated or tacit) expectation that each member will donate or solicit funds on behalf of the organization.  Some organizations have a stated amount, others simply ask that each board member give an amount that is meaningful to him or her.

In addition to governing and personal giving, board members may be expected to serve in an external relations role, advocating for the organization and introducing it to new sources of funding such as private philanthropists, donor advised funds, government funders, corporations and foundations.

Apt Roles for Lawyers on Boards

By their training and professional expertise, lawyers may be particularly suited to fulfill certain roles on boards, for example:

• Legal Committee
• Governance committee
• Audit committee
• Public affairs/government relations committee
• Corporate secretary role
• Ad hoc committee to review and update by-laws
• Development (fundraising) committee
• Grants committee (for grantmaking organizations)

In many nonprofits, particularly those with larger boards, much of the work of the board is carried out through committees, whose activities and recommendations are memorialized in minutes and regularly reported out to the board for discussion, refinement and ratification. Attorneys may be particularly well-suited for the minute-taking role as well as for keeping track of the organization’s adherence to its policies and by-laws.

Some Cautionary Notes

Lawyers joining nonprofit boards would do well to observe some cautions.  Many nonprofits, particularly smaller or less-sophisticated organizations, may erroneously believe that having a lawyer on the board is the same thing as having a lawyer.  They may not recognize that the establishment of an attorney-client relationship is a formal matter, with an engagement letter (legally required in some states) and stated professional understandings as to scope of the representation, fees/fee waivers, and expenses.  For their part, the lawyers may not be in a position to deliver legal services to the client for any number of reasons: core competency, time and availability, conflict of interest, lack of malpractice insurance, lack of bar admission in that state, or otherwise.

When attorneys do agree to represent the organization as well as serve on its board, they should be mindful of the following risks:

• Document the inception, scope and terms of the attorney/client relationship.  Some states’ professional responsibility rules require a written engagement letter setting forth these matters.
• Avoid private inurement – nonprofit resources being used improperly to enrich the attorney or the law firm.  The actuality or appearance of a prohibited private inurement relationship between the organization and the attorney can avoided by providing services pro bono.  If the engagement is on a fee-bearing basis, the attorney should be sure to follow the organization’s conflict-of-interest policies and, once the relationship is cleared by independent directors, the attorney should be sure to follow requirements for ongoing disclosure of fees.
• Privilege waiver can occur if the attorney/director fails to flag when she is taking off her director hat in the board room and commencing the rendering of legal advice as counsel.  See, e.g., Deutsch v. Cogan, 580 A.2d 100 (Del. Ch. 1990) (holding that lawyer’s communications with other board members or management were while she was wearing her “director hat” and not her “lawyer hat,” and that the communications are discoverable in litigation); see generally Model Rule of Professional Conduct 1.6.
• Conflicts of interest can arise, for example, if the lawyer is asked to give a legal opinion on board actions in which the lawyer participated.  Another example: if the organization is party to a litigation, the lawyer may be unable to try the case on behalf of the client, especially where he may be a witness.
• Gaps in liability coverage: Some legal malpractice insurance underwriters will not cover either the lawyer or her firm if one of its lawyers serves on the board of the client; other policies will provide coverage only where the lawyer was acting as a lawyer but not as a director.  This can lead to disputes between the D&O carrier and the malpractice carrier about whether the lawyer was acting as a lawyer or as a director, and ultimately can lead to a lack of adequate coverage altogether.
• Higher standard/greater liability:  will a director who is also a lawyer be held to a higher standard in what they know or should know about company matters?  This question has been litigated and answered in the affirmative in a number of states in the for-profit context.  Query whether courts would apply a heightened standard to a lawyer acting as a director of a charity.

The opportunities and pleasures of serving on a nonprofit board are manifold.  Lawyers should embrace the chance to lead, learn and grow.  At the same time they should be mindful of the potential pitfalls of undertaking a dual role, and take appropriate steps to mitigate the risks.

To locate board member opportunities in New York City visit BoardServeNYC.

Lesley Rosenthal is Vice President, General Counsel and Secretary, Lincoln Center for the Performing Arts and author of the bestselling Good Counsel:  Meeting the Legal Needs of Nonprofits (John Wiley & Sons 2012)

Dear Nonprofiteer, Is the banquet deductible?

Dear Nonprofiteer,

I am the Development Manager for a small nonprofit that operates on a budget of around $500,000 a year. Something came up this year for the first time, and I’d like your opinion.

The ticket price to our annual benefit is $100, and we routinely send acknowledgements to guests that $50 of their $100 ticket is deductible. This is a fairly accurate estimate of the value of the food, drink and entertainment cost, and according to our business manager and auditor, standard best practices (as well as the way benefit tickets have been handled at every nonprofit for which I have ever worked, during the past 20+ years).

This year, we got an RSVP from one guest with a note saying, check to follow. When the check arrived, it was from a donor advised fund with a letter stating that endorsement of the check would confirm that the full amount was tax-deductible and that no goods or services had been received in exchange. My Executive Director and I felt that to treat this differently from all other benefit ticket purchasers would be inappropriate, and compromise the integrity of our nonprofit. I contacted the donor advised fund representative, and explained the situation. I made it clear that the woman would be welcome at our event, but that we would not deposit the check without further instruction from him.

At the benefit, the woman handed me a check for $50. She was very kind, but basically said, these things are done all the time, there’s a fine line, you are on the wrong side of it, but “you’ll learn.” She also told me that the board member who invited her will be speaking with me about this.

I realize this is a relatively small amount, but it’s a larger principle. One of the reasons I value my job at this particular nonprofit is that there is a strong commitment to integrity, consistency and transparency here. My ED and I both feel that we made the right call; but this is very likely not the end of it, as we haven’t heard yet from the board member.

What do you think?

Sincerely, Just Following The Rules

Dear Following:

It’s not a matter of what the Nonprofiteer thinks; it’s what she knows, and you know and your Executive Director knows.  There’s nothing at all “fine” about the line between deductible and non-deductible payments: the IRS permits deduction of the amount that goes to the charity, and not of the amount that goes into a guest’s belly.  It’s what any lawyer would refer to as “a bright-line rule.”  So maybe the banquet guest just got her lines mixed up.

Seriously, this isn’t even a close call.  What this person has asked you to do is to lie to the IRS on her behalf.  Let’s leave aside ethics, integrity, all those mushy things.  Lying to the IRS is a really bad idea–just ask Al Capone.

Now, is your agency likely to be audited for breaking the rules (also known as “the law”)?  No.  Nor is the guest likely to be audited for misreporting her charitable contributions.  But that’s not a reason for you (or her) to pretend that she received no value for the money she handed over.  You were wise not to endorse the donor-advised fund’s check embodying such a pretense, and you will continue to be wise by not issuing a tax-deductibility receipt for the $50 personal check she ultimately forked over.

If and when the Board member comes at you, you will reiterate what we all know to be true: that the IRS does not permit you to certify the food, drink and entertainment costs as tax-deductible contributions, and that you’re sure she wouldn’t want an agency she governs to participate in such a dangerous and false maneuver.  If she presses, observe that the guest may make any use she pleases of her cancelled $50 check.

If the Board member continues to press, turn the matter over to the Board president.  It’s her/his responsibility to make sure no one member of the Board in any way tarnishes the reputation of the whole group.  If s/he resists addressing the issue, try using the words “tax evasion,” and if s/he continues to resist, try using the word “fraud.”

You don’t have to be in the business of judging or disparaging the guest (though she richly deserves it. Wealthy enough to have a donor-advised fund and wailing about $50?).  But you likewise don’t have to be in the business of abetting her dishonesty.  And if anyone argues, “Well, it’s only $50,” make sure to agree.  “Our agency’s good name isn’t for sale,” you’ll say.  “But if it were, it would cost a hell of a lot more than $50.”

Keep on abiding by the law, and may the Force be with you.

Dear Nonprofiteer, When is a Board member not a Board member?

Dear Nonprofiteer:

I came across your website as I was searching for information on Board members’ volunteering in programs. I’m wondering if you might have some advice on a situation I’m trying to handle.

I work in a service agency, which relies heavily on volunteers. Recently, one of our volunteers became a Board member. She has continued volunteering in the program and a couple of issues have come up that the program director would normally address quickly and easily with a volunteer. However, because this volunteer is now also a Board member, there is a hesitation because she is somewhat of a boss.

The issue has been brought to the attention of the Board president.  He and the program director have different ideas on how to handle the situation.  The president wants to handle the situation one on one because he doesn’t want to discourage other members from volunteering more.  The program director wants a limit on how much time a Board member can spend volunteering in a program.

I’m the Executive Director and can see both sides.  I’d like for the president to deal with it one on one, but to then adopt a policy/guidelines for Board members as volunteers to avoid conflicts of interest.  I can see where this particular person likes to make decisions and that easily oversteps the program director’s role.

I’ve been searching on line for a policy around this, but have found nothing.I would greatly appreciate any insight or resources that you might have to help with such an issue.

Sincerely,

Clowns to the Left of Me, Jokers to the Right

Dear Clowns:

This is only a problem because of what seems to be a fundamental misconception about the role of Board members, as opposed to the Board as a whole.  No individual Board member is “somewhat of a boss;” in fact, from the standpoint of the program director, the only boss she has is you, the Executive Director.  You, on the other hand, answer to the Board as a whole, and the Board as a whole has the right to hire, evaluate, discipline and if necessary fire you if it’s not satisfied with the job you’re doing.

But there’s a reason the Nonprofiteer keeps repeating “as a whole . . . as a whole.”  Individual Board members have no supervisory responsibility for personnel, even when they’re members of the Personnel Committee.  Personnel decisions belong to the Executive Director, except for decisions about the Executive Director’s tenure which belong to the Board—all together now—as a whole.

So the Nonprofiteer doesn’t see any reason why there should be a policy prohibiting Board members from volunteering in the program, or limiting the amount of time they can spend doing so.  What there should be is

• a statement by the Board president to the volunteer in question that there seems to have been some confusion, what with her going from volunteer to Board and back again, and that it needs to be clear that when she’s a volunteer she’s not a Board member.  He doesn’t need to go into the subtleties of her general lack of power as an individual Board member.  He just needs to tell her that in the land of program, the program director is king, and thus that she should expect the program director to treat her exactly as she was treated before she joined the Board—that is, to supervise her.

• another statement by the Board president to the program director reiterating what he said to the volunteer and reassuring  her that she’s not dealing with “somewhat of a boss” and should therefore not hesitate to resolve the problem with this volunteer as with any other.  And

• a third statement by the Board president to the entire Board at the next Board meeting, leaning again on the “confusion” meme: “We’ve had some questions about the circumstances under which Board members are welcome as program volunteers.  So I thought I’d make clear that each of us is welcome under all circumstances—but when we’re program volunteers, we shed our Board identities like fur in the summertime.  None of us is enforcing policy, or overseeing staff, or evaluating operations—we’re just volunteering.  Which ought to be a great relief for each of us!”  Thus he’ll encourage Board members to volunteer without having them confuse their collective governance role with their individual participation role.

The reason you can’t find any relevant policies is that this isn’t an occasion for policies—it’s an occasion for common sense applied to clearly-understood roles.  Or, in other words, there’s no need for a conflict-of-interest policy because individual Board members have no recognizable interests; their task is to participate in group decision-making about what’s good for the agency.

If you also have a Board Personnel Committee that tries meddling with individual personnel decisions (as opposed, say, to writing policies and procedures applicable to all personnel), then you have a bigger version of the same problem and need to have a bigger discussion about the difference between the Board—what?—as a whole and individual Board members.

But there’s no reason either the problem or the discussion should lead you to limit Board members’ participation as program volunteers.   As a Board member told the Nonprofiteer just last night, the main satisfaction Board members get from their often thankless jobs is contact with the people you serve.  Unless your goal is to produce unhappy Board members and a short-handed program director, you don’t want to restrict or prohibit that contact.

Or, more pithily: damn the Board member!  Full speed ahead!

The ongoing question of what’s really a charity

Query whether a failure to file annual 990 reports should be grounds for determining that a nonprofit organization is not actually a charity, and therefore not eligible for property tax exemption.  Pittsburgh thinks so, apparently; but if being stupidly managed disentitled organizations to charity status, how many small nonprofits would remain standing?

This is the latest in a series of battles between Pittsburgh nonprofits and their host city.  The Nonprofiteer thinks the city should follow Willie Sutton’s advice and go where the money is, and stop trying to squeeze blood from these teeny-weeny turnips.

On the other hand, maybe these battles aren’t really about revenue at all.

Dear Nonprofiteer, If I smell a rat, should I just hold my nose?

Dear Nonprofiteer,

I’m dealing with a tough situation and I could really use some help. I live in a  quiet rural community outside of a large town.  A neighbor moved away many years ago and turned his home into a “non profit” event center, mostly doing a huge wedding business (illegally by the way, as they’ve been asked to cease and desist by the county).

They now seek to legalize and expand their already enormous operation.  The neighboring residents object to this expansion due to noise, traffic and pollution. (They are looking to go to 7 days a week and build additional events structures.)

There is a hearing coming up and in an effort to find more info to bolster our argument, I’ve been looking into their “non profit”.

I discovered that one of the “non profits” they filter money through is a “therapeutic riding center” for disabled children located in another community.  The manager of this non profit is the daughter of the people in question, and they are also the only 2 officers of the non profit.

There is no website, no phone number and the address is an office building.  If you Google any other “therapeutic riding centers” they all have websites and info and photos of beaming disabled kids.

I smell a rat. How do I go about having them looked into by the powers that be?

Signed,

If I Don’t Watch Out For The Neighborhood, Who Will?

Dear Neighborhood Watch,

What you’ve described is such a tangle that it reminds the Nonprofiteer of those What’s Wrong With This Picture? puzzles in which the task is to identify the 47 not-very-hidden mistakes in the drawing.  Or, in other words, a law school exam.  So she’ll take an issue-spotting approach.

Issue #1 is a building-and-zoning problem, namely, that your neighbor is operating an illegal business.  If a cease-and-desist order has been issued and ignored, you should notify the sheriff and/or the county board and ask what is being done to enforce the order.  If you receive no response, send a copy of the letter to the local newspaper.  Voila: instant enforcement.

Issue #2 is another building-and-zoning problem, namely, that your neighbor wishes to expand his/her illegal business.  Obviously he can’t do that unless and until he comes into compliance on his current activities.  Probably in your efforts to compel him to do so, you should also copy the county executive and/or the zoning administrator and/or the Zoning Commission, and point out that his previous failure to comply with the law suggests that he’s not the sort of person to whom one would wish to grant additional license.

So far nothing we’ve discussed has anything to do with nonprofits. You’ve taxed only the Nonprofiteer’s long-rusty powers as a zoning lawyer. No business, whether nonprofit or for-profit, can operate in violation of the building and zoning laws.

But then we come to the nonprofit part, where once again there are two issues.

Nonprofit Issue #1: Can one operate a legitimate nonprofit without a Website?  Merely to ask the question is to answer it: of course.  Perhaps the group is spending all of its money on helping disabled children and none on an office or a Website.  But if parents of disabled children are unable to access the group’s services—because there’s no phone number and letters to the address go unanswered—then there are grounds for concern.  Contact the state agency responsible for the oversight of nonprofits (in some states this is the Attorney General’s Office, in others the Secretary of State’s Office, in still others a separate Charitable Bureau) and explain that you’re unable to access the services of this nonprofit and therefore you wonder if it is in fact pursuing its mission.  Copy the newspaper and again you should see fairly prompt action in the form of at least a preliminary investigation.

Nonprofit Issue #2: Can one operate a legitimate nonprofit in which the sole employee is the child of the sole members of the Board of Directors?  While this is unattractive (to say the least), it’s actually fairly common among small and newly-formed nonprofits.  All the work is done by the founders and their relatives, because they’re the only ones aware of the agency and passionately committed to its mission.  Provided that the group’s bylaws contain the conflict-of-interest policy required by the Internal Revenue Service, employing relatives is not automatically grounds for presuming that the agency is a sham.  On the other hand, the fact raises enough questions that you might include it in any letter you send to the charitable oversight authorities pursuant to Nonprofit Issue #1.

Frankly, though, the real concern here is that your neighbor is disturbing you by operating an unlicensed roadhouse.  Let sleeping nonprofits lie, and focus on shutting down the event space so you can get some sleep yourself.

If only this were the last word on “venture” philanthropy!

This is the smartest, ballsiest response I’ve seen to the omnipresent nonsense about how what’s wrong with philanthropy and charity is that they’re too soft-hearted and how all the problems of the world could be solved if they were just more rigorous and did their “due diligence” and brought other failed concepts and consultant buzzwords over from the for-profit sector. What refreshing thoughtfulness and appropriate humility. Bravo, Mr. Scanlan!

Translation Services: What Does Venture Philanthropy Really Provide?

The Nonprofiteer threw a bit of a bomb at a meeting today.  (“Now, dere’s a bolt from da blue,” as Andy Sipowicz would say.)  Perhaps she should be sorry—but she’s not.

After a group of young “venture philanthropists” described their efforts to help expand a small number of poverty-fighting nonprofits and to attract other philanthropists to support them, she had a few thoughts which she generously shared.

• Their analysis of Return On Investment in this context was very exciting, comparing the dollars spent to the dollars added to the projected lifetime earnings of program participants as a result of whatever intervention the nonprofits provided.
• Their goal of “Scaling Up What Works,” while admirable, had challenged many other institutions.  Did they have a template for determining which nonprofits would continue to succeed after significant expansion?  (Not really: they look for leadership and give it management support; but management support can’t clone inspired leaders.)
• Their main achievement was to have assembled a group of white people (staff and Board) to whom other white people would give money.  White people are reluctant to give money to black and brown people (she observed).  But this group, by virtue of its comfortingly familiar MBA-speak upper-middle-class front, is able to overcome that reluctance. 

Afterward, the meeting’s host suggested to the Nonprofiteer that her last comment had been both off-putting and dismissive.  On reflection, she concluded that, while she was sorry to have embarrassed her host in front of his guests, she was glad to have given voice to the Subject That Dare Not Speak Its Name: the gap between the resources available to white people and those available to nonwhites.  We’d like to think that philanthropy responds to need, but most donors actually respond to being asked by those who look a lot like they do.

If these people can level that tilted playing field, more power to them.  And if some of them can make a career out of doing so, mazel tov.  But while the advice and management training and analysis and for-profit perspective on nonprofit problems are all very well, let’s not fool ourselves about what’s really useful in this model: the ability to look and sound like the sort of people who should be entrusted with a lot of money.     

That’s not a critique of pale people who want to help.  It’s just a plea for frankness about how racism plays out in our sector.