When Your Church Needs a Lawyer

What you should know about selecting an attorney to prevent legal risks.

The church usually begins looking for an attorney only when it is confronted with a crisis—such as being served with a lawsuit. However, the need for an attorney’s advice actually arises during the planning stages of any activity or event. Common situations that call for an attorney’s expertise are:

  1. If the church is revising its governing documents, it should always engage an attorney familiar with nonprofit law in its state.
  2. If the church is considering terminating a lay employee who is protected by law, it should always engage an attorney familiar with employment law in its state.
  3. If the church is revising its employee handbook, it should always engage an attorney familiar with employment law in its state.
  4. If the church is considering a new source or method of fundraising, it should engage an attorney familiar with nonprofit tax and fundraising rules and regulations.
  5. If the church is revising its policies and procedures, it should have an employment attorney and/or a risk management attorney review the revised policies and procedures.
  6. If the church is buying or selling land, it should engage a real estate attorney to review the transaction documents.
  7. If the church is entering into a contract that exposes the church financially, it should engage an attorney to review the contract.
  8. If the church is considering a new or different activity, it should engage an attorney to review the risks associated with that activity.
  9. If the church is contacted by any taxing agency, it should engage an attorney to respond to the contact.
  10. If the church is contacted by an attorney, it should engage an attorney to respond to the contact.
  11. If the church becomes uncomfortable with any activity or financial transaction, it should engage an attorney to review the activity or financial transaction.
  12. Selecting an attorney
  13. How do you find the right attorney?
  14. The key to finding a lawyer is to look for one with the specific expertise and experience you need for the task. For example, tax law is a well-known specialty among lawyers. The Internal Revenue Code covers more than 45,000 pages. Obviously, no tax lawyer has read the entire 45,000 pages. Once you add another 110,000 pages of tax regulations, it becomes impossible for any one tax lawyer to keep up with just the primary authorities. But the Internal Revenue Code sections that address tax exempt organizations cover a few dozen pages. You want the attorney that knows those pages if you have a tax question.
  15. Read attorney and senior editor Richard Hammar’s tips for hiring an attorney.
  16. The same is true in real estate, contract law, employment law, copyright law, family law, bankruptcy, consumer law, insurance law, oil and gas law, probate law, etc. No lawyer can know it all. Since many attorneys charge their clients by the hour, the church is paying for the attorney to learn the law applicable to the church’s particular issue. The less expertise an attorney has with that particular issue, the longer it will take him or her to learn the law. The “right lawyer” knows what to do immediately, acts effectively and with little wasted effort or wasted expenditures of the church’s money.
  17. With that in mind, once the church has defined the problem, then it should begin searching for an attorney who has substantial expertise in dealing with the problem. A church should expect the search to take several days, or even weeks. The goal is to develop a short list of potential attorneys. Begin by searching for attorneys who may have the necessary expertise. For more general issues, the church may start with local attorneys within the church, or those listed in the local phone directory. For specific or unique issues, the search may include attorneys from across the country.
  18. All attorneys specialize to one degree or another. Many states recognize board certified specialists. If the church needs a tax lawyer, the starting point should be those attorneys who are board certified in tax law in its state. For more specific legal issues, start with a Google search about the issue.
  19. In developing the attorney list, the church will network with many attorneys and other professionals. With each phone call, ask about their experience with the church’s particular issue. Also, ask for names of other attorneys who may have a more specialized expertise in that area. The best lawyers always know who the best lawyers are in their field of expertise. I have made as many as 75 phone calls to find the right lawyer for a client.
  20. Once the short list is created, review the attorney qualifications in a publication called Martindale Hubbell. It is available on the Internet at martindale.com. This publication asks lawyers to determine the qualifications and ethics of fellow attorneys. Every lawyer is reviewed every five years. If a lawyer is not listed in this publication, it is because they have been practicing law for less than five years or the publication did not receive sufficient responses from fellow lawyers to provide a meaningful rating. Based on their rating system, attorneys who have an “AV” rating are considered the best. In 20 years of practicing law in using this rating system, I have never been disappointed by an attorney who had an AV rating.
  21. From the short list of AV rated attorneys, interview attorneys to determine the best fit. This means that the personalities on both sides match in such a way that they can work together. In the interview ask the following questions:
  22. How bad is it?
  23. How soon do I have to do something?
  24. Have you done this before?
  25. Are there any options?
  26. What are the odds of getting it fixed?
  27. At what price?
  28. When will it be done?
  29. Who is going to do the work?
  30. When can you get started?
  31. Do you have legal malpractice insurance?
  32. If these questions are answered satisfactorily, engage the attorney.

    Supervising the attorney

    Who is in charge?

    Some attorneys like to make all the decisions. Other attorneys like for the client to make all the decisions. In most cases, the decision-making is shared. This means that the lawyer shares sufficient information with the client for him or her to make an informed decision. It also means that the client follows the instructions and recommendations from the attorney, unless strong reasons exist otherwise.

    How should we communicate?

    Communication rarely functions properly on a random basis. You should structure the frequency and form of communication with your attorney very early in the engagement. Ask to be introduced to the legal staff who will schedule telephone conferences and meetings with the attorney. Random telephone calls from the client are the least productive way to communicate with the attorney. Attorneys are frequently out of the office and unavailable for un-scheduled telephone calls. You should schedule regular telephone conferences with the attorney to stay up-to-date. E-mail is used by many attorneys to keep clients informed in between scheduled telephone conferences. Ask for a copy of all documents that the attorney receives or sends out.

    Most attorneys will require a written engagement letter, or agreement. It will detail the expectations of the law firm regarding its fees, and provide the client with information about the law firm’s policies. Review this engagement letter carefully, as it is the first form of communication received from the law firm.

    What about fees?

    Except for personal injury lawyers, most lawyers charge by the hour. Selecting an attorney based on hourly rate can be a mistake because some attorneys work more efficiently than others. You want an attorney who can work efficiently. Hourly rates can vary between $150 per hour to over $1,000 per hour. The hourly rates tend to be higher at larger law firms and in larger cities. In many cases, the specific expertise you are seeking will only be found in the larger law firms in larger cities. Many attorneys have a minimum increment of time that they bill when they work on a case. Rather than concentrating on the hourly rate, concentrate on the total cost of the engagement. If a $400 per hour attorney can accomplish the same task in half the time it takes a $200 per hour attorney to accomplish, you have ended up with the same bill. Frequently, the $400 per hour attorney will be less expensive because they have more highly developed expertise in the area.

    In many cases, some tasks will be delegated to another attorney within the law firm. These attorneys charge a lower hourly rate, but are frequently inexperienced attorneys. Some law firms shift work to the lower hourly rates to train that attorney. Discuss with the attorney who will be doing the work.

    Discuss fees with the attorney. Request a fee estimate for most engagements. If the fees exceed the estimate, an explanation is deserved.

    Most bar associations operate a dispute resolution service to resolve conflicts between clients and attorneys over fees. If a dispute with an attorney over fees cannot be resolved, I suggest contacting the local bar association for assistance.

Frank Sommerville is a both a CPA and attorney, and a longtime Editorial Advisor for Church Law & Tax.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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