Betwixt 'n between PIL and PLP: the public interest lawyer and decisions in nonprofits.

• Author: Green, Cami
• Position: Parliamentary law and procedure

Picture this: you are doing your pro bono hours by serving on the board of a charity debating the sale of some donated stock at a price 50 percent over the current trading value. Everyone present knows that the proceeds will benefit a major community project. After listening to 50 minutes of debate one trustee "calls the question," although it appears others would like to continue the discussion. Your advice is sought: Should the chair disregard the request or permit discussion to go on? Based on your counsel the board votes to end the debate and then to sell the stock at the suggested profit. Some community activists become incensed: They feel if deliberation had only been permitted a little longer, the majority of trustees would have been convinced to hold out for an even larger profit. An action is filed against the trustees. The community is in an uproar because the park that was going to be built with the proceeds from the intended sale is now on hold and there is growing public sentiment that only fools would not be satisfied with a 50 percent profit. You are on the hot seat since it was your procedural advice the chair followed; if she had only ignored the call for the previous question and permitted the debate to go on, she would not be faced with all this dissent.

Sound far fetched? Not necessarily. In a Delaware Supreme Court case of 1985, Smith v. Van Gorkom, 488 A.2d 858, directors were found grossly negligent after deliberating for two hours on the sale of stock with a similar profit margin. The court said this was not a reasonable amount of time. But are you expected to know this, as you are good-heartedly giving your pro bono hours to a charity, be it as a regular member of the board, legal counsel, or parliamentarian? If there is such a thing, should you be adding parliamentary law to your area of practice? What if you did offer procedural advice although you were retained as counsel but another trustee, who is not a lawyer, was the appointed parliamentarian?

These questions give cause to the exploration of two primary reasons for the connection between what has traditionally been called parliamentary law and procedure -- PLP(1) -- and the public interest lawyer. First and foremost, the increased requirement for pro bono work by members of the Bar has resulted in a growing interest in the effectiveness of meetings by deliberative bodies to which lawyers today give their personal time generously. Second, the failure to recognize this part of the nonprofit area as a legitimate, albeit small, aspect of law raises serious issues of liability both for the organization and counsel. Against the back-drop of a large increase in the number of decisions contested by individuals aggrieved by a lack of justice and sometimes dignity in the decision-making process, the PIL lawyer -- and anyone representing a nonprofit corporation, for that matter -- would be well served by taking a closer look at the implications of lacking knowledge in this area. It is no longer sufficient to maintain that good management principles and general organizational skills will protect the governing boards from being sued by one of their own who is unhappy with the outcome of a particular decision, or someone else with standing.(2)

While this is not the appropriate forum to establish a perfectly sound case for some rules of conduct in meetings now being a legitimate -- albeit inconsistent -- part of the law, a brief argument is offered. In conjunction with it, it is imperative that the concept of charities and nonprofits also be briefly established. Once these two prerequisites are met, we can proceed with examining the role of the PIL lawyer in this context.

PLP: Law or Procedure?

Originating from the procedure used for deliberations in British Parliament, parliamentary law traditionally equaled the process used only by legislative assemblies. Upon the conclusion of the Civil War, with a subsequent surge in the number of civic organizations, it became necessary to devise appropriate rules for the decision-making process of nonlegislative bodies also. To fulfill this need General Henry Robert self-published a book of rules for volunteer organizations of all kinds, which, to some, including the courts, became "law."(3)

With a general increase in the litigiousness of our society came a corresponding reluctance to accept manuals written by nonlawyers as the sole model for the conduct of meetings...