When Is It Wise to Pay for Legal Counsel?

Attorney Sally Wagenmaker offers guidelines on when to consider paid professionals in an interview with Matthew Branaugh.

Attorney Sally Wagenmaker is a partner in a Chicago-based law firm serving churches and nonprofits. Wagenmaker is the current president of the Christian Legal Society (CLS).

Editor Matthew Branaugh interviewed Wagenmaker about legal issues confronting churches and pastors and the ways churches can secure legal representation when needs arise and resources are limited. In Part 2 of this two-part interview she shares insights on common misconceptions about outside legal help.

Church leaders often express worry about dealing with legal issues—that the complexities and costs are so overwhelming that they end up doing very little in response. What are some practical ways these leaders can overcome this, given the scarcities of time and resources they face?

First, include legal expenses as part of a church budget. By doing so, a church will be better prepared and equipped to absorb legal costs when they arise. And they likely will arise as an expected part of doing ministry in a complex world.

Second, identify what can be handled by volunteers and what should be outsourced to paid professionals.

Perhaps the church’s employee handbook could first be developed by a volunteer who is experienced with human resources issues, and then outsourced to a paid attorney for review. Or perhaps the church’s real estate purchase could be handled by a volunteer attorney in the congregation, with the follow-up specialized property tax exemption work done by a paid attorney who focuses on that legal area.

Third, be wise in all things. If volunteers lack the time, expertise, or trustworthiness to follow through, then don’t ask for their help.

Sometimes the best stewardship is to pay others to handle matters, especially complicated legal matters requiring particular expertise. But in doing so, check the costs. It is appropriate to ask for a fee estimate, and a church should definitely hire an attorney who is experienced with serving churches and other nonprofits. One would not hire a mechanic for dental drilling work, nor should an organization hire a patent lawyer to help address often-tricky employment issues.

What types of matters do you think should prompt a church to hire an attorney?

The two most common ways a need for an attorney arises are either through a crisis or a discovered vulnerability that requires planning. Church leaders who understand this can shape their church budgets accordingly each year, knowing some funds should be set aside for the unexpected while other funds should get allocated for normal developments that require planning.

What is a legal crisis? Our most common “911” types of calls include the following:

  • When a childcare worker suspects child abuse that may trigger “mandated reporter” requirements;
  • When an employee complains of being sexually harassed;
  • When a clergy member is not sure of the scope of the privilege in relation to a parishioner who shares confidential information;
  • When a supervisor believes that an employee needs to be fired due to misconduct or other serious problems;
  • When someone is injured and has accused the church of wrongdoing; or
  • When someone threatens harm against the church or people involved with the church.

Knowledgeable legal assistance in an urgent situation can be critical, particularly to prevent potentially devastating harm from actually occurring, as well as to avoid relational damage, financial repercussions, and legal liability for the church.

Planning is the other way—and it’s the preferable option for obvious reasons. It fosters better decision-making with a church’s long-term well-being and vitality in mind. Through planning, leaders are also in a better position to identify the time- and expense-related priorities, which can help their church absorb the associated legal costs over a longer period of time.

Prime examples of planning opportunities include situations like a church contemplating a merger with another congregation, weighing a request to share its facility space with another ministry, realizing a new-and-improved abuse prevention policy is needed, or discovering the need to address employment and intellectual property matters (e.g. use of sermons, worship materials, and other creative works).

For churches—especially smaller ones—how can they secure helpful legal representation, especially when their resources may be even more limited than most other congregations?

Our law firm represents many small churches, and we address legal fees as a matter of mutual trust and transparency with church leadership. Church leaders who are thinking about hiring an attorney should ask questions upfront about fee structures and how the attorney will get paid by the church.

Church leaders also should prioritize the work they want addressed to ensure the most pressing needs get handled first, which then allows the attorney and church to determine whether lower-ranked projects should wait until additional budget funds are available later in the year.

There is often a temptation to secure free legal information or services. Remember, people oftentimes get what they pay for. Make certain the information and services are good and effective.

Christian Legal Society (CLS) can also be a great resource for churches in need of legal counsel. Pro bono assistance may be an option.

More commonly, CLS provides training to licensed attorneys about representing churches and ministries, particular through its national conferences. Attorneys who do not practice in church- or ministry-related areas can connect with other attorneys who do through CLS, allowing them to network and discuss strategically needed approaches for churches or ministries.

For additional insights from Wagenmaker, see the article “Protecting Your Church from Lawsuits.” For additional insights related to hiring an attorney, see “How to Hire an Attorney for Your Church” by Richard R. Hammar.

Sally Wagenmaker is a partner in a Chicago-based law firm serving churches and nonprofits, and she is the current president of the Christian Legal Society (CLS).

Matthew Branaugh is an attorney, and the content editor for Christianity Today's 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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