February 1, 2002 | Read Time: 7 minutes
IN THE TRENCHES
By Tom Chalkley
From drawing up bylaws to hammering out protocols for firing employees, every charity needs legal advice now and then. But with lawyers’ fees routinely running into hundreds of dollars per hour, small to midsize nonprofit organizations need affordable alternatives.
Fortunately, the legal profession recognizes that charitable groups deserve special consideration. Assistance to needy nonprofit groups is considered pro bono publico — for the public good — or “pro bono” for short. As
part of their professional duty, lawyers are encouraged to donate some of their services free, or at sharply reduced fees, to individuals and groups that cannot afford to pay. In theory, a vast army of lawyers stands ready to assist nonprofit organizations.
The difficulty, of course, lies in finding a pro bono lawyer with the right expertise for the job, a daunting task for many charities. Lawyers and legal organizations also vary widely in their commitment to providing pro bono services. While the American Bar Association urges members to donate at least 3 percent of their professional time to needy individuals and groups, many state bar associations set no such goals. A few state bars set mandatory standards for pro bono service, while others merely suggest guidelines for their members to follow. Minnesota’s bar association, for example, urges lawyers to contribute 50 hours of work per year to needy clients. New York’s calls for 20 hours.
Perils of Relying on Trustees
The most common mistake nonprofit groups make is relying on in-house legal help rather than seeking outside assistance, says Douglas Sauer, executive director of the Council of Community Services of New York State, an Albany group that offers management advice to nonprofit organizations statewide.
“Most organizations get pro bono services from their own board members, and that’s a serious problem,” says Mr. Sauer. For one thing, a lawyer who serves on a nonprofit board doesn’t necessarily have expertise in laws relating to charitable organizations. Secondly, lawyers who serve as trustees can easily encounter conflicts of interest when they also serve as counsel, paid or unpaid, and it can become difficult to hold them accountable, Mr. Sauer says.
A better role for a board member who is also a lawyer, he says, is to act as a watchdog, looking out for legal difficulties and, if necessary, critiquing the advice of outside counsel.
Specialists in nonprofit management urge charitable groups seeking legal advice to exercise caution and, where available, make use of a referral service or legal hot line provided by a local bar association, an organization that provides nonprofit management assistance, or a statewide association of nonprofit organizations.
Local Programs
Many localities have well-established programs that were designed with charities’ needs in mind. Some employ their own legal staff members, while others have created directories of willing pro bono lawyers, categorized by their areas of expertise. By using such go-between programs, nonprofit groups can avoid confusion, delays, and potentially costly legal errors.
Mr. Sauer’s organization, for example, employs one full-time lawyer and a paralegal who provide direct advice to member organizations and, when necessary, make referrals to litigators or other specialists. Officially, member groups are charged an hourly fee of $60. “But in reality,” Mr. Sauer says, “two-thirds of our lawyers’ time is pro bono.” Matters requiring litigation are referred to the New York State Bar Association, which has its own longstanding pro bono department.
A similar model is practiced by the Management Assistance Project for Nonprofits, in St. Paul. The group’s director of legal and human-resource services, Charley Ravine, is a lawyer who handles most routine legal questions via a special hot line, and regularly advises start-up organizations on their legal requirements. For more complex or time-consuming legal problems, Mr. Ravine has access to roughly 40 lawyers who accept pro bono assignments. Management Assistance charges for its services on a sliding scale based on client groups’ income.
The North Carolina Center for Nonprofits, in Raleigh, takes a different approach, one designed to meet the needs of small charities and those in rural areas. Seven years ago, in conjunction with the state’s bar association, it started its One Hour Pro Bono Program, which provides free legal help to member groups with annual budgets of $750,000 or less. A center employee screens calls from members who call the program’s hot line and matches their legal problems to volunteer lawyers who have the appropriate expertise. “The first step is to make sure the [client’s] question is really at the point where an attorney needs to counsel them,” says Trisha Lester, the center’s vice president. “Often they’ve got three or four things they need to do before they even talk to an attorney.”
The staff member who handles the pro bono hot line also checks to make sure that no conflicts of interest will arise from matching a client with a particular lawyer or firm. Such conflicts are a common problem for the center’s many members located in small towns and rural counties, where circles of acquaintance are close-knit.
By screening callers, the North Carolina program serves the needs not only of the center’s clients, but also of the 160 lawyers who volunteer their services, Ms. Lester says. “It gives attorneys an excellent way to do pro bono work in a controlled structure that suits their schedules and the demands on their time,” she says. She notes that many of the lawyers who participate wind up giving their nonprofit clients more than the prescribed one hour of free counsel.
To start the program, Matthew McGuire, a Raleigh lawyer who was then volunteering with the state bar association’s Young Lawyers Division, created the initial database of lawyers, who were recruited through notices in a number of professional publications. According to Ms. Lester, the program cost her organization about $17,000 to set up, much of it spent on her staff’s time in planning meetings. Once established, direct expenses involved in screening, referrals, and maintenance of the database have run to about $4,600 per year.
Efforts like the One Hour Pro Bono Program depend on good working relationships between intermediary nonprofit agencies and state or local bar associations. In Portland, Ore., Technical Assistance for Community Services, which offers management support to nonprofit groups, has enjoyed a close partnership with the Multnomah Bar Association for years. Technical Assistance screens calls to ensure that clients are bona fide, tax-exempt charities with annual budgets less than $300,000, and to ascertain that the issue for which they seek counsel won’t require litigation. Then, legal help is offered to the charities through the bar association’s Young Lawyers Section, says Tere Mathern, who coordinates Technical Assistance’s pro bono referrals. The group provides the referral service free to nonprofit clients, as part of its general technical-assistance program.
Some parts of the country, particularly rural areas, lack such convenient access to low-cost legal services. In the absence of an intermediary organization, nonprofit groups in need of pro bono help need to seek referrals directly from a state bar association or, says Mr. McGuire, a local chamber of commerce. In approaching potential providers, groups should be prepared to make the case for why they deserve free legal service. “You have to define what your needs are,” he advises. “The thing any lawyer is going to ask is, ‘What are your goals? ‘“
“You have to be persistent and patient,” he says. “Your first call may be a lucky one. Unfortunately, in some states, there may be a dead end. You really have to beat the bushes and even try calling some of the larger law firms, although you might get some cold receptions, as the attitude toward pro bono work varies considerably.”
Mr. McGuire’s comments underscore the advantage to charities of using intermediaries when available to access legal help. Nonprofit groups located in states and cities that lack such go-between services may wish to consult with organizations that have put these programs in place. Given the expense of legal advice and the difficulties of finding pro bono providers, umbrella organizations may wish to consider setting up their own intermediary services for their members.
Has your charity found a creative solution to the problem of locating inexpensive legal help? Tell us about your experience in our Share Your Brainstorms online discussion group.
