General Counsel. Serving as outsourced general counsel to California nonprofit organizations and educational institutions requires us to have an expertise in the law of tax-exempt organizations as well as a number other legal fields. Here are some of the issues we monitor and services we provide when needed:

Board Member Responsibilities and Liability.  While it is true that uncompensated board members have certain protections against personal liability under California law, these protections will not guard against all risks.  D & O insurance, as important as it is, also will not fully protect board members, unfortunately. For example, the IRS may proceed against board members and others in an organization for unpaid payroll taxes, or for facilitating certain financial transactions between board members or other "insiders" who can exercise substantial influence on the organization (called disqualified persons) who engage in excess benefit transactions with the organization. The organization itself could go against a board member who fails to meet his or her fiduciary obligations leading to a financial loss. 

Upon being retained as general counsel, we will perform a baseline risk assessment, and make recommendations.  We will draft, or review and revise, as necessary, the board policy manual, particularly as it relates to conflicts of interest.  We will then continue to advise the board of board-member fiduciary duties as warranted. 

Intermediate Sanctions Issues.  Nonprofit organizations are supposed to serve the mission for which it was created, rather than to return a profit to its board members, officers, employees, and others connected with the organization.  When board members or other disqualified persons do business with the organization, the potential exists for abuse of the trust reposed in board members.  While it is permissible for disqualified persons to provide goods or services to the organization on terms that are fair and reasonable to the organization, the IRS will scrutinize such transactions to determine if the disqualified person received too much personal benefit – known as an excess-benefit transaction. Unless the organization meets certain Safe Harbor rules, the burden will be on the organization and the individual(s) involved to establish that the transaction was not an excess benefit transaction.

If a board member or other disqualified person is found to have engaged in an excess benefit transaction, he or she will be required to restore the portion that equates to the excess benefit, and can be hit with 25% or, in some cases, 200% penalty by IRS.

Board members, officers and other “managers” who participated in the facilitating the excess benefit transaction can be individually “fined” a 10% excise tax up to $10,000 for each transaction.

We will advise on Intermediate Sanctions issues as they arise.

Employment Issues. California leads the nation in its protection of the rights of employees. A nonprofit organizations, as does any employer, must ensure that it is aware of the rapidly-changing law in this area, and take affirmative steps to comply. 

As general counsel, we will draft and/or review and revise, as necessary, the organization's employee policies and procedures manual.  We will review the organization's insurance coverage and make recommendations, as necessary.  We will advise on routine labor issues as they arise, and coordinate with the insurance carrier.

Besides employment law, there is the question of the total compensation as it relates to Intermediate Sanctions.  We will review compensation levels with you and advise you on whether or not an issue is presented as to Intermediate Sanctions and, if so, how to take certain safe-harbor steps to protect the organization, the board, and the employee from Intermediate Sanctions. 

Contracts. We can review contracts and, as needed, represent the organization in contract negotiations or disputes. As experts in exempt-organizations law, we will be particularly attuned to any cross-over issues relating to your organization's nonprofit status, should they arise.

Gift Planning. Upon being retained, we will draft, or review and revise, your organization's give policy manual. It will set out the types of gifts your organization will accept, and define how those gifts will be accepted. 

Experience shows that organizations who have strong gift-planning capability in-house are much more effective in working with prospective donors to complete large charitable planned gifts.  We have strong gift-planning expertise, and can advise your organization on all aspects of proposed and completed charitable planned gifts, including outright gifts, charitable remainder trusts, charitable lead trusts, charitable gift annuities, pooled income funds, remainder interests in real estate ("life estates"), donor-advised funds, and life insurance-based gifts. 

Internet Presence. An organization's web site can raise a number of legal issues.  For example, if it solicits charitable donations from states outside of California, those states might require registration. Other issues might include unrelated business income tax, libel, donor and other privacy issues, intellectual property issues, etc. Besides the web site, we may look at your organization's email policies and practices, etc. 

Review of Suspected Fraud, Embezzlement and Self-dealing. The time to address fraud, embezzlement and/or self-dealing is before it happens.  We will help you to establish, or review and revise as necessary, your financial policies and procedures so as to minimize the opportunity for fraud, embezzlement or self-dealing, and to detect it if it occurs.  In appropriate cases, will will work with an outside consultant who is a Certified Fraud Examiner. 

If fraud, embezzlement or self-dealing has occurred, we will work with your organization to navigate the various legal issues that are presented for the organization and for board members and officers.  If necessary, we will represent your organization in dealing with law enforcement agencies, the IRS, etc. 

Crisis Communications. Though rare (thankfully), crises can arise for any nonprofit organization.  When they do, it is critical that you receive legal advice in communicating with internal and external constituencies, and with the media.  Having represented a number of organizations in these kinds of situations over the years, we are experienced with dealing with the media.  We will also advise your organization's spokesperson(s) in dealing with the media, and will bring in a crisis communications consultant for media training, when warranted.  

Litigation. Our goal, of course, is to help your organization avoid litigation. Our experience shows that by serving as outside general counsel, we are in a much better position to ensure that the organization stays on track.  If litigation looms, we will be there to represent you in those critical days before suit is filed.  If things progress to suit, we will help you find the right litigation firm.  Once a litigation firm is located and retained, we will monitor the progress of the litigation, review billings, and report to you on a regular basis. 

So, why don't we handle the litigation ourselves?  Though we have decades of litigation experience, litigation distracts our attention from our central focus – keeping your organization on track from a legal perspective.  In our role as general counsel, we can monitor the progress of the litigation, and help ensure that your organization is receiving the best-possible representation. In addition, we can help to keep litigation fees down simply by paying attention to the billings and asking questions when things don't make sense. 

Formation of a California Nonprofit Corporation. Our focus is on serving as outsourced general counsel to established nonprofit organizations in California.  Generally speaking, therefore, we are not available to form nonprofit corporations since few start-up nonprofits are in a position to take advantage of outsourced general counsel.  However, we will do nonprofit formations within the context of our services to existing clients – such as forming spin-off nonprofit corporations, sister corporations, and so on. 

Dissolution of a California Nonprofit Corporation. Because of our focus on serving viable nonprofit organizations, we generally do not do dissolutions or advise on them – though we will do them from time to time.

Merger of Two or More Nonprofit Organizations. Mergers present a particularly challenging set of legal, procedural, governance, and cultural issues. We will help two or more organizations to merge provided it is within the context of our services as outsourced general counsel.

General Counsel. Serving as outsourced general counsel to California nonprofit organizations and educational institutions requires us to have an expertise in the law of tax-exempt organizations as well as a number other legal fields. Here are some of the issues we monitor and services we provide when needed:

Board Member Responsibilities and Liability.  While it is true that uncompensated board members have certain protections against personal liability under California law, these protections will not guard against all risks.  D & O insurance, as important as it is, also will not fully protect board members, unfortunately. For example, the IRS may proceed against board members and others in an organization for unpaid payroll taxes, or for facilitating certain financial transactions between board members or other "insiders" who can exercise substantial influence on the organization (called disqualified persons) who engage in excess benefit transactions with the organization. The organization itself could go against a board member who fails to meet his or her fiduciary obligations leading to a financial loss. 

Upon being retained as general counsel, we will perform a baseline risk assessment, and make recommendations.  We will draft, or review and revise, as necessary, the board policy manual, particularly as it relates to conflicts of interest.  We will then continue to advise the board of board-member fiduciary duties as warranted. 

Intermediate Sanctions Issues.  Nonprofit organizations are supposed to serve the mission for which it was created, rather than to return a profit to its board members, officers, employees, and others connected with the organization.  When board members or other disqualified persons do business with the organization, the potential exists for abuse of the trust reposed in board members.  While it is permissible for disqualified persons to provide goods or services to the organization on terms that are fair and reasonable to the organization, the IRS will scrutinize such transactions to determine if the disqualified person received too much personal benefit – known as an excess-benefit transaction. Unless the organization meets certain Safe Harbor rules, the burden will be on the organization and the individual(s) involved to establish that the transaction was not an excess benefit transaction.

If a board member or other disqualified person is found to have engaged in an excess benefit transaction, he or she will be required to restore the portion that equates to the excess benefit, and can be hit with 25% or, in some cases, 200% penalty by IRS.

Board members, officers and other “managers” who participated in the facilitating the excess benefit transaction can be individually “fined” a 10% excise tax up to $10,000 for each transaction.

We will advise on Intermediate Sanctions issues as they arise.

Employment Issues. California leads the nation in its protection of the rights of employees. A nonprofit organizations, as does any employer, must ensure that it is aware of the rapidly-changing law in this area, and take affirmative steps to comply. 

As general counsel, we will draft and/or review and revise, as necessary, the organization's employee policies and procedures manual.  We will review the organization's insurance coverage and make recommendations, as necessary.  We will advise on routine labor issues as they arise, and coordinate with the insurance carrier.

Besides employment law, there is the question of the total compensation as it relates to Intermediate Sanctions.  We will review compensation levels with you and advise you on whether or not an issue is presented as to Intermediate Sanctions and, if so, how to take certain safe-harbor steps to protect the organization, the board, and the employee from Intermediate Sanctions. 

Contracts. We can review contracts and, as needed, represent the organization in contract negotiations or disputes. As experts in exempt-organizations law, we will be particularly attuned to any cross-over issues relating to your organization's nonprofit status, should they arise.

Gift Planning. Upon being retained, we will draft, or review and revise, your organization's give policy manual. It will set out the types of gifts your organization will accept, and define how those gifts will be accepted. 

Experience shows that organizations who have strong gift-planning capability in-house are much more effective in working with prospective donors to complete large charitable planned gifts.  We have strong gift-planning expertise, and can advise your organization on all aspects of proposed and completed charitable planned gifts, including outright gifts, charitable remainder trusts, charitable lead trusts, charitable gift annuities, pooled income funds, remainder interests in real estate ("life estates"), donor-advised funds, and life insurance-based gifts. 

Internet Presence. An organization's web site can raise a number of legal issues.  For example, if it solicits charitable donations from states outside of California, those states might require registration. Other issues might include unrelated business income tax, libel, donor and other privacy issues, intellectual property issues, etc. Besides the web site, we may look at your organization's email policies and practices, etc. 

Review of Suspected Fraud, Embezzlement and Self-dealing. The time to address fraud, embezzlement and/or self-dealing is before it happens.  We will help you to establish, or review and revise as necessary, your financial policies and procedures so as to minimize the opportunity for fraud, embezzlement or self-dealing, and to detect it if it occurs.  In appropriate cases, will will work with an outside consultant who is a Certified Fraud Examiner. 

If fraud, embezzlement or self-dealing has occurred, we will work with your organization to navigate the various legal issues that are presented for the organization and for board members and officers.  If necessary, we will represent your organization in dealing with law enforcement agencies, the IRS, etc. 

Crisis Communications. Though rare (thankfully), crises can arise for any nonprofit organization.  When they do, it is critical that you receive legal advice in communicating with internal and external constituencies, and with the media.  Having represented a number of organizations in these kinds of situations over the years, we are experienced with dealing with the media.  We will also advise your organization's spokesperson(s) in dealing with the media, and will bring in a crisis communications consultant for media training, when warranted.  

Litigation. Our goal, of course, is to help your organization avoid litigation. Our experience shows that by serving as outside general counsel, we are in a much better position to ensure that the organization stays on track.  If litigation looms, we will be there to represent you in those critical days before suit is filed.  If things progress to suit, we will help you find the right litigation firm.  Once a litigation firm is located and retained, we will monitor the progress of the litigation, review billings, and report to you on a regular basis. 

So, why don't we handle the litigation ourselves?  Though we have decades of litigation experience, litigation distracts our attention from our central focus – keeping your organization on track from a legal perspective.  In our role as general counsel, we can monitor the progress of the litigation, and help ensure that your organization is receiving the best-possible representation. In addition, we can help to keep litigation fees down simply by paying attention to the billings and asking questions when things don't make sense. 

Formation of a California Nonprofit Corporation. Our focus is on serving as outsourced general counsel to established nonprofit organizations in California.  Generally speaking, therefore, we are not available to form nonprofit corporations since few start-up nonprofits are in a position to take advantage of outsourced general counsel.  However, we will do nonprofit formations within the context of our services to existing clients – such as forming spin-off nonprofit corporations, sister corporations, and so on. 

Dissolution of a California Nonprofit Corporation. Because of our focus on serving viable nonprofit organizations, we generally do not do dissolutions or advise on them – though we will do them from time to time.

Merger of Two or More Nonprofit Organizations. Mergers present a particularly challenging set of legal, procedural, governance, and cultural issues. We will help two or more organizations to merge provided it is within the context of our services as outsourced general counsel.