Good Counsel: Meeting the Legal Needs of Nonprofits

Good Counsel reveals:

What makes a nonprofit a nonprofit (hint: it has nothing to do with whether the organization makes a profit)

How good governance ties to mission and fundraising

How to protect the organization′s name and monetize its original works ?

Potent phrases that can turn gift pledges into enforceable contracts

One thing NOT to say in a hire letter or employee handbook

How to find a coveted law job at a nonprofit

Good counsel: Meeting the Legal Needs of Nonprofits

"Triple kudos to Good Counsel, a treasure–trove for nonprofit executives, attorneys, and board members. It′s everything they would want to know, embellished with real–lifestories, checklists, forms, and available resources." Hon. Judith S. Kaye, Chief Judge Emerita, State of New York

"Lesley Rosenthal has composed a score for nonprofit leaders and their legal advisors. Lively, comprehensive, and easy to understand, Good Counsel speaks to the concerns of board members, administrators, legal practitioners, artists, and students." Wynton Marsalis

"Good Counsel is a unique and inspiring contribution to nonprofit management. I am buying this book for my entire senior leadership team." Erin S. Gore, Chief Financial Officer, University of California, Berkeley

"Lesley Rosenthal addresses a wide array of legal issues in a fun, easy–to–read manner, using practical checklists and work plans. Good Counsel is invaluable not only for nonprofit and pro bono legal counsel, but also for board members and executives in the nonprofit sector." Ira M. Millstein, Senior Associate Dean for Corporate Governance, Yale School of Management

"In the fast–moving and freewheeling excitement of connecting artists and audiences, Lesley Rosenthal′s savvy and sound counsel is a go–to guide for the industry. Her direct style, keen insight, and entrepreneurial sense make Good Counsel indispensable." Nan Keeton, Director of External Affairs, San Francisco Symphony

Acknowledgments xvii

Introduction xix

Who Should Use This Book xx

Features of the Book xxi

How This Book Is Set Up xxii

Preliminary Observations xxiv

Illustrative Cases xxvii

Part I An Overview of Nonprofits Legal Needs

Chapter 1 What Good Counsel Can Do for Nonprofits 3

What Legal Needs Do Nonprofits Have in Common? 4

Beyond Laws about Nonprofits: Complying with Business Laws, Too 11

First Stop for Legal Advice: CYA (Consult Your Attorney) 12

In Sum/Coming Up Next 14

Chapter 2 Nonprofit Legal Basics: Corporate Law and the Requirements of the Tax Exemption 19

The Benefi ts of Incorporating 19

Getting Organized as a Nonprofit Corporation 22

Following Good Corporate Law Practices 24

Obtaining Recognition of Tax–Exempt Status 28

Maintaining Tax–Exempt Status 31

Meeting Additional IRS Expectations 34

Chapter 3 Good Counsel about Corporate Governance 47

What Does the Board Do? 47

Advocacy and Independent Judgment: Counsel in Relation to the Chief Executive 58

When Governance Fails: Learning by Negative Example 59

Part II A Grand Tour of Nonprofits Business Law Needs

Chapter 4 Contracts and Intellectual Property: Laws that Matter to Program Staff 67

Understanding the Organization s Program 67

Contracts: At the Heart of the Program s Legal Arrangements 68

What Is Intellectual Property (and What Does It Have to Do with Nonprofits?) 81

Copyright Law for Nonprofits: An Introduction 82

Chapter 5 Counseling the Rainmakers: Legal Aspects of Raising Money 93

A Lawyer s Introduction to Fundraising 94

Laws That Matter to Fundraisers 99

Other Places Where Legal Meets Fundraising 112

Better Fundraising Through Good Governance and Compliance 117

Chapter 6 Laws That Matter to the Finance Department (or Not–for–Profit, but Not–for–Loss Either) 123

Understand the Big Financial Picture 124

A Year in the Life 132

Other Places Where Legal and Finance Meet 135

Chapter 7 Getting Personnel: Human Resources Law for Nonprofits 155

Human Dynamics, Nonprofi ts, and the Law 157

Key Legal Elements of Employment Relationships 159

Other Laws that Matter to Nonprofi t Human Resources Professionals 169

Chapter 8 Getting the Word Out, Legally: Counseling the Nonprofit Communications Team 185

Introduction to the Legal Aspects of Nonprofi t Communications 185

What Nonprofi t Marketing Directors Should Know about Trademark Law 186

Clearing Rights to Use the Protected Works of Others 199

Consumer Regulatory Laws 211

Getting the Word Out, Digitally 214

Other Places Where Legal Meets Communications 217

Chapter 9 Legal Meets Operations, Facilities Management, and Security 223

Laws That Matter to Operations 225

About Leases 233

Risk Management and the Chief Operating Officer 240

Chapter 10 Political Activities and Governmental Lobbying 243

Thou Shalt Not Politick 243

Lobbying: Advocacy with Limits 247

Recordkeeping, Registration, and Financial Disclosure 250

What Isn t Lobbying? 251

Part III For Good Counsel Only

Chapter 11 Taking Charge of the Legal Function 257

Catalogue and Prioritize Legal Needs 258

The Softer Skills of Good Counsel 265

Chapter 12 Finding Your Dream Job as In–House Counsel at a Nonprofit 271

Where to Begin Searching for an In–House Job at a Nonprofit 271

How to Position Yourself to Win an In–House Job in a Nonprofit 272

Don t Believe the Myths 282

Chapter 13 Mobilizing Other Legal Forces for the Good 287

Paid and Pro Bono Representations 288

A Broad–Gauge Role for the Legal Profession in the Nonprofit Sector 294

Notes 297

Index 311

LESLEY ROSENTHAL leads the legal, governance, and compliance functions of Lincoln Center for the Performing Arts, Inc. Since 2005 she has fashioned the legal context for the renowned arts center′s world–class cultural and educational offerings, its entrepreneurial initiatives in media, fashion, and international consulting, and the $1.2 billion redevelopment of its iconic physical complex. Rosenthal has served in many roles throughout the nonprofit sector, including for the New York State Bar Association and its Foundation. For thirteen years she was in private practice as a business, litigation, and technology lawyer at Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan. Rosenthal graduated from Harvard College and Harvard Law School. The National Organization for Women (NOW–nyc) has named her a "Woman of Power and Influence." Follow her on Twitter @GoodCounselBook.

Great resource... Her writing style is less lawyerly, and well, human. The book is filled with stories, practical resources, and tools. Beth s Blog: How Nonprofits Can Use Social Media

Remarkable, up–to–date and virtually all–inclusive practice treatment...An impressive array of guidelines and how–to suggestions and materials intended to train incoming counsel and those on both sides of the attorney–client relationship. New York Bar Journal

A true must–read for nonprofit lawyers, executives, board members and even law students....If you interact with nonprofits, this is the book. New York Law Journal

Rosenthal gives us the scoop on how lawyers can parlay their firm experience into a job in the nonprofit sector. (amlawydaily, April 2012)

There is no doubt that once you have this book in your hands, you ll be grateful, whether you re a development director, the ED, or a member of the board . Add Good Counsel to your nonprofit management bookshelf and make sure that your entire management team knows about it. (About.com, February 2012)