You might be wondering how the attorneys, consultants and other staff at Charitable Allies are legally permitted to assist charities, other nonprofits and their respective stakeholders nationwide, especially in light of the various state ethics rules around the “unauthorized practice of law.” This page helps explain how we are able to help our clients nationwide.
Much of our work is not technically legal work. We might help clients with business operations, identifying and capturing programming outcome measures and advise regarding board politics and conflict generally. Even if some of these services are commonly performed by attorneys, none of these services are the “practice of law.” Although it is really helpful for the lawyers and consultants to have legal training so they can more easily spot and understand when the consulting issues raise legal concerns.
When the issues we address for our clients include things like regulatory investigation defense, litigation, and related matters, these services constitute the practice of law. Charitable Allies closely follows the unauthorized practice of law rules and wherever possible finds ways to help the client (or potential client) with the legal issue.
The unauthorized practice of law rules prohibit non-lawyers from addressing legal needs of clients. They also prohibit actual lawyers from other states from undertaking state-specific legal work in a state in which they are not licensed.
However, there are usually many exceptions to these unauthorized practice of law prohibitions, several of which allow the lawyers at Charitable Allies to serve the legal needs of clients in other states. One large exception is that once a lawyer is admitted in one state she or he can practice federal law in any state. Several other exceptions allow a lawyer to practice law on a temporary basis in a state in which they are not admitted when the services are: (a) undertaken in association with a lawyer who is admitted to practice and who participates; (b) in or reasonably related to a pending or potential proceeding before a tribunal in that state, if the lawyer is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized (such as by admission pro hac vice); or (c) in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding if they relate to the lawyer’s out-of-state practice and are not services for which the forum requires pro hac vice admission.
You as the potential client don’t need to do anything beyond engage us as you ordinarily would engage a lawyer. Each state’s unauthorized practice of law rules are different. Charitable Allies regularly reviews these rules and ensures the representation emits one of the exceptions. There are times where the legal issues are clearly state-specific and do not fall within the scope of the types of cases we normally would be able to undertake in other states. Here is a list, by area of law or nature of dispute, of the types of cases we are generally able to assist with: management and administration of donations, management and administration of charitable funds, conflicts of interest, board disputes, member disputes, attorney general investigations, IRS investigations, other regulator investigations, investigations by funders/grantors, establishing subsidiary or affiliate entities/programs, expanding charitable programming, and related matters.
It is also interesting to note that commentators question the constitutionality of the unauthorized practice of law rules generally. See Michael E. Rossman, The Federalist Society Review, Vol. 20 at p. 74, et seq. (analyzing National Institute of Family and Life Advocates v. Bercera, 138 S.Ct. 2361 (2018) and In re Jones, 156 Ohio St.3d 1 (2018)). There have also been interesting U.S. Supreme Court cases limiting the ability of cartel-like professions to keep out newcomers, such as how regulators of dentists were unable to prevent teeth whitening technicians from whitening teeth. See North Carolina State Bd. of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015).
Ultimately, Charitable Allies puts the needs of its clients and potential clients first. We work very hard at finding ways in which we can represent you, especially if your legal needs are within our core areas of knowledge and closely related to our mission as a legal aid law firm that helps close the “justice gap” and help nonprofits find competent, skilled, experienced legal counsel on issues closely related to their existence or operation.
If you have any questions about these or related matters, please contact our Executive Director.