Reflecting the diversity of the firm’s clients as well as the legal issues affecting exempt organizations generally, the firm’s practice encompasses a wide variety of issues.  Our primary areas of focus are described below.

Charitable Solicitation.   Both federal and state laws prescribe how exempt organizations may raise funds, and the laws of more than 37 states require registration prior to the commencement of solicitation activity. Violation of these registration laws can result in costly penalties and other sanctions, while noncompliance with federal rules can jeopardize tax deductions otherwise available to donors.  We assist our clients by reviewing their fundraising strategies and advise them of the rules applicable to each fundraising activity, and assist them in complying with the appicable laws and regulations. We also represent fundraising professionals and for-profit corporations that work with charitable organizations to raise funds, negotiating arrangements that are both legally compliant and help our clients achieve their goals. 

Corporate Governance.  Corporate governance is a broad term that refers to the rules and procedures according to which an organization operates.  We have extensive experience advising clients on issues across the spectrum of governance matters.  We can help with threshold governance issues, such as establishing an appropriate governance structure, understanding the fiduciary duties of organization trustees and managers, holding board and membership meetings, and drafting bylaws, conflict of interest policies, committee charters and other corporate documents.  We also regularly address with our clients more specific and/or complex governance issues, including the particular rules applicable to membership organizations, religious organizations, affiliate and subsidiary relationships, indemnification issues, and developments in the “best practices” for governance of exempt organizations.

Corporate Transactions.  Exempt organizations engage in a wide variety of transactions, from sponsorship and joint venture agreements with for-profit or other tax-exempt entities to consolidations and restructurings, from employment contracts to leases. Some of these transactions are particular to their exempt status, while others are not. We advise our clients on a wide variety of transactions and, where a written agreement is required, negotiate and draft these agreements.

Our transactional work includes the following: 

• Operational agreements between two or more not-for-profit organizations or between not-for-profit organizations and for-profit sponsors
• Mergers and consolidations of not-for-profit organizations and sale of significant assets by not-for-profit organizations, and, where required by state law, representation in proceedings to seek court approval of the transaction
• Negotiation and drafting of employment contracts, severance agreements, general commercial contracts.
• Copyright and trademark registration.
• Insurance matters, especially director and officer liability insurance issues
• Dissolution and winding up of operations

Formation and Application for Exempt Status. The office often works with clients that are about to form a new organization that will engage in charitable activity or other not-for-profit ventures. We assist these clients in deciding whether to form a corporation or trust, how to structure the organization, the type of exemption to seek from the Internal Revenue Service, and related structural and operational issues. We draft the organizing documents and exemption applications for federal and state tax exemptions. We also advise our clients on a variety of issues that arise in getting the new organization up and running, from contracts with service providers and related nonprofits to grant agreements, from fiscal sponsorship arrangements to registration of trademarks. 

Grant-making.  Charitable grant-making is a common activity for many 501(c)(3) organizations, public charities and private foundations alike.  We assist our clients in creating appropriate grant procedures, policies, and criteria, and we draft grant agreements, applications, and procedural manuals for our clients. Where appropriate, we advise on expenditure responsibility procedures and seek IRS approval of grant procedures for gifts to individuals. In the area of international grant-making, we help organizations follow appropriate procedures, to assure compliance with relevant federal tax regulations.

International Philanthropy.  The office often assists organizations whose charitable activities reach beyond the borders of the United States. We work with our clients on such issues as appropriate governance and organizational structures for U.S.-based organizations with affiliates and offices in other countries, grant procedures for foundations making grants to non-governmental organizations outside of the U.S., and coping with evolving federal anti-terrorism guidelines and regulations.

Investigations:  Internal Investigations and Enforcement Actions.  We conduct internal investigations of charges of misuse of charitable assets, breach of fiduciary duty, and related claims on behalf of a variety of organizations, reporting our findings to special committees and advising as to remedies.  We also regularly represent clients in investigatory actions by state attorneys general and other enforcement authorities, or, if appropriate, seek the intervention of these officials on behalf of clients that have information concerning illegal activities by other nonprofit organizations. 

Management of Charitable Assets. Our clients often request our help in assuring that the management of their assets is consistent with applicable laws. We routinely analyze gift instruments, to determine whether they were given for restricted purposes, whether assets are subject to board restrictions, whether assets are properly characterized in the organization’s audited financial statements, and whether the investment activities of the organization satisfy fiduciary standards. We work with auditors and other professionals on resolving issues relating to management and investment of charitable assets, where appropriate. We also represent both organizations and donors in connection with the drafting gift instruments relating to restricted gifts.

Litigation.  In cases where a negotiated resolution is not possible, we have often participated in litigation on a broad range of issues.  For example, in 2005, we were successful in defeating the efforts of the American Society of Hypertension in having our client, the President-Elect of the organization, improperly removed from office. [click here to view opinions] While the primary focus of our litigation-related work is assisting litigation counsel on substantive issues related to nonprofit organizations, we also represent clients named as beneficiaries of charitable bequests and give expert witness testimony on a variety of legal issues involving tax-exempt organizations. 

Tax Compliance. Advising our clients on issues relating to on-going compliance with federal tax provisions is a key part of our representation. We work with our clients to assure that they comply with restrictions on lobbying and political activities rules relating to excess benefit transactions and unrelated business income tax. For our private foundation clients, we provide assistance with respect to annual distribution requirements, the prohibitions against self-dealing, excess business holdings, and jeopardizing investments. We review our clients’ annual tax filings, including Forms 990, 990-PF and Form 990-T (UBIT) to assure that transactions are properly reported.