Between The Two: Meshing Ministry, Legal

 

The essence of ministry is answering a call from God to serve His people. It is the job of the board of directors of a pregnancy center to ensure that God’s call is answered in such a way that His will is done and not the will of the founders, employees or volunteers. However, it is equally important to understand that pregnancy centers are businesses, and require compliance with many laws and regulations. As Christ instructed, “…give to Caesar what belongs to Caesar, and give to God what belongs to God.” (Luke 20:25).

Below is a brief discussion regarding the points pregnancy centers should consider when consulting with an attorney, and the points attorneys should consider before providing legal services to pregnancy centers.Under most state and municipal laws, an individual or organization falls under the definition of a business the minute money or goods are accepted, whether directly in exchange for services, or as donations. Even “nonprofits” have to follow the law. Following the law results in excellence and shines the light of Jesus. It goes without saying that when legal issues are involved, the guidance of a qualified attorney is essential.

Unauthorized Practice of Law

Attorneys must obtain a separate and individual license for each state in which they intend to practice law. The unauthorized practice of law can be committed by lawyers and non-lawyers alike. An attorney who gives any legal advice in a state in which he or she is not licensed has committed the unauthorized practice of law, and can be sanctioned by the state(s) where he or she is licensed. The perpetrator can also face civil and criminal penalties.

Of course, this is a little more complicated than what soil the attorney is actually standing on when he or she renders advice. Each individual state has a definition for the illegal or unauthorized practice of law, but a good rule of thumb is to consider the practice of law the application of law to facts. Consultation on what the law requires is legal education. Consultation on how the law affects a specific set of facts is the practice of law.

It is also important to verify that an attorney’s license to practice law is active and up-to-date. For the many years that I served as at-stay-home mom, I elected to have my law license become inactive. This allowed me to keep my license without the expense of maintaining CLE credits and paying full license fees. HOWEVER, I surrendered my ability to hold myself out as an attorney and to render any legal advice whatsoever.

An attorney who does not have an active law license, whether by choice or by disciplinary action, generally cannot practice law in any capacity, even as a volunteer. There are exceptions under various Emeritus Attorney programs in most states.

Questions for pregnancy centers to consider:

1) Is the pregnancy center seeking legal advice (an answer to a specific situation)?
2) Is the person from whom the pregnancy center is seeking legal advice licensed to practice law in the state in which the center conducts business?

Questions for attorneys to consider:

1) Is the attorney answering a specific legal question or providing legal education?
2) Is the attorney licensed in the state in which the pregnancy center is conducting business?
3) Is the attorney’s license up-to-date and active?

 
Competent Counsel

Attorneys do not specialize in any particular area when they attend law school. All law graduates receive a general law degree. Attorneys are free to choose which area or areas they wish to practice. I always laugh when people ask me random legal questions as if I am a walking legal encyclopedia. The general public believes that any lawyer can handle any legal matter (unfortunately, some attorneys hold this same mistaken belief). An attorney may be able to dabble in minor problems or look up the answers to uncomplicated questions, but it takes an attorney who is competently trained and experienced in a specific area of law to realize when a seemingly minor problem is actually a dangerous liability.

If an attorney’s last experience with business or nonprofit law issues was in his or her second-year corporate law class, he or she is probably not qualified to render competent counsel in the areas of business or nonprofit law. Does that mean the attorney should just tell the local pregnancy center sorry and walk away? Of course not!

Attorneys have options:

  • The attorney can be candid with the pregnancy center regarding the fact that he or she has little-to-no experience, but is willing to learn. It is important to limit the scope of representation to simple matters until the attorney is prepared to take on more complicated matters.
  • The attorney can find a mentor who is experienced in business and/or nonprofit law.
  • The attorney can become educated through relevant CLE.
  • The attorney can research applicable state and federal statutes, as well as case law.

Questions for pregnancy centers to consider:

1) Is the attorney representing the pregnancy center trained and/or experienced in the areas of business law and nonprofit law?
2) Is the attorney dedicated to representing the pregnancy center and reasonably available?

Questions for attorneys to consider:

1) What is the attorney’s level of experience in the areas of business or nonprofit law?
2) If the attorney does not own his or her own law practice, does the law firm he or she works for approve the pro bono work the attorney is providing to the pregnancy center?
3) Does the attorney have a malpractice insurance policy that protects the attorney and the pregnancy center as the client?

Attorney-Client Privilege

Once it is determined that an attorney is legally authorized to give a pregnancy center legal advice, and that the attorney is able to render competent legal representation to the pregnancy center, it is important to establish a healthy attorney-client relationship. One of the most important aspects of the attorney-client relationship is the attorney-client privilege. The attorney-client privilege prevents any person, entity or court from compelling an attorney to disclose or testify regarding confidential client information communicated exclusively to the client’s attorney for the purpose of obtaining legal advice or legal services. This allows the client to be open and forthright with the attorney without fear of liability.

The requirement of exclusive communication with the attorney becomes complicated when the client is an organization, because of the number of representatives who can communicate on behalf of the client. It is important for the pregnancy center to establish which representatives of the pregnancy center are authorized to discuss privileged information with the attorney.

Questions for pregnancy centers to consider:

1) Has the attorney established representation by providing the pregnancy center with a written engagement agreement?
2) Which representatives of the pregnancy center are authorized to have privileged communications with the attorney?
3) Do the authorized representatives of the pregnancy center understand what information should be shared exclusively with the representing attorney?

Questions for attorneys to consider:

1) Has the attorney established a clear understanding of his or her scope of representation through a written engagement agreement?
2) Do the center’s board members, executives, employees and volunteers understand that the attorney only represents the center, and not any of the center’s representatives individually?
3) Has the attorney educated the center representatives to recognize legal issues?

Lord, you are my lawyer! Plead my case!” (Lamentations 3:58). I am positive that in His mercy, God has protected many centers, their boards, staff, and volunteers from legal liability and consequences. Nevertheless, many attorneys (despite attorneys’ reputations as the opposite of angels) have a passion to serve Christ.

I encourage pregnancy centers to develop a healthy relationship with the local legal community, and I encourage attorneys to commit their time and talents to protecting and defending the front-line ministry that pregnancy centers do every day.


Carmen Amen is a practicing attorney in Las Vegas, Nevada. Carmen serves as General Counsel for an engineering firm and owns a law office which focuses on Business, Corporate and Nonprofit law. Carmen’s strengths as an attorney are client education and risk management. Her law office devotes on-going pro bono general counsel services to pro-life pregnancy centers in Las Vegas, Nevada.

Carmen is a graduate of Southwestern Adventist College with a Bachelor of Science in Elementary Education and a graduate of the Texas Tech School of Law with a Doctorate of Jurisprudence.

Who is My Patient?

by Ellen Foell, Heartbeat International Legal Counsel

“A patient-physician relationship is generally formed when a physician affirmatively acts in a patient’s case by examining, diagnosing, treating, or agreeing to do so.

"Once the physician consensually enters into a relationship with a patient in any of these ways, a legal contract is formed in which the physician owes a duty to that patient to continue to treat or properly terminate the relationship.

- Valarie BlakeDoctor-Patient relationship

This sounds like a trick question a Pharisee might ask to entrap Jesus.

The answer seems fairly straightforward. The patient is anyone who receives medical services from a physician.[1] But then, there is a follow-up question: "When is my patient no longer my patient?" In other words, when does the legal obligation to the patient end?

The physician and the clients who walk through the center’s doors are indispensable to its existence as a medical pregnancy clinic. Without the client-patients, there would be no need for the medical center to exist. Without the medical director, the center has no legal authority to provide any of its critical life-changing medical services, including ultrasounds and sexually transmitted infection and disease testing.

The medical director’s presence in name, policy-setting, procedure, and writing standing orders creates a patient-physician relationship. It runs between the physician and every client who walks through your doors to receive medical service.

However, much like ambulatory care clinics, the relationship between the physician in a medical pregnancy center and patient is limited in time and treatment, so the center must set distinct parameters to avoid confusion for the patient and liability for the center. Failure of the center to be clear in setting and communicating those parameters to the patient can create liability-laden situations.

The best way for centers to avoid liability issues is to be up-front in communicating the parameters of the patient-physician relationship with each client. In the eyes of the law, the physician-patient relationship continues if the following three factors are present, with the third factor posing the most relevance for pregnancy help centers:

  1. The client-patient needs follow-up treatment from a physician,
  2. The client-patient has a reasonable expectation of continued treatment, and
  3. The physician has not clearly and explicitly ended the relationship.

It is easy to see how a client-patient could leave a center with the impression that she and the medical director have now established a continuous patient-physician relationship. Treatment and care for a pregnant woman typically involves multiple doctor visits, additional ultrasounds, and can include additional procedures as well.

Further, since many of the women coming to a medical pregnancy clinic may not have an existing relationship with a physician, a client-patient might naturally conclude that the relationship would continue beyond the parameters of that place (the center) and time (the appointment).

That is, the client-patient might have a reasonable expectation of continued services because she clearly requires continued treatment. The question is, “From whom?” That question can and must be addressed in the context of clear and explicit communication to the client that the patient-physician relationship is terminated upon her leaving the pregnancy medical clinic, and—if needed—receipt of referrals for obstetrician-gynecologists, in keeping with standard pregnancy medical center practice. 

If the client is clearly and explicitly informed—verbally and in writing—that no continuing patient-physician relationship continues after the verification of pregnancy and/or ultrasound, then the center and its medical director will have fulfilled their legal duty to the client. In fact, most pregnancy medical centers have a Consent and Release Form for the client to sign, indicating this agreement.

Heartbeat International was recently asked whether giving a regimen of prenatal vitamins or prescribing prenatal vitamins constituted a continuation of the patient-physician relationship, possibly exposing the center to liability. The question was raised for obvious reasons: Prenatal vitamins tend to be something pregnant women take throughout the course of their pregnancy, implying continuing treatment.

Arguably, prescribing the vitamins could be interpreted to constitute action taken pursuant to the patient-physician relationship. Thus, a center will want to ensure that its Consent and Release Form is broad enough to encompass the prescription for vitamins.

Pregnancy help medical clinics daily provide excellent and caring life-saving services. In the event that a client-patient is pregnant, she should be given referrals for other service providers.

Centers should have an attorney draft a Consent and Release Form, which should be given and explained to the client-patient. This paperwork should clearly state that no follow-up care will be provided, and that the patient-physician relationship is terminated.

That form must be signed by both center staff and the client-patient, with a signed copy given to the client-patient and a copy kept in the client-patient’s medical file. In following these guidelines, a center will have fulfilled its obligation to the client-patient, and to the law.

Go and do likewise!



[1] “A patient-physician relationship is generally formed when a physician affirmatively acts in a patient’s case by examining, diagnosing, treating, or agreeing to do so. Once the physician consensually enters into a relationship with a patient in any of these ways, a legal contract is formed in which the physician owes a duty to that patient to continue to treat or properly terminate the relationship.” Valarie Blake, “When Is a Patient-Physician Relationship Established?” Virtual Mentor 14, no. 5 (2012), http://virtualmentor.ama-assn.org/2012/05/hlaw1-1205.html  (Accessed October 9, 2012)

 

 

Do's and Don'ts of a nonprofit in an election season

election ahead signThe first platinum rule for you as a nonprofit and as representatives of the nonprofit is that you may not endorse, support or oppose any specific candidate or political party. Your activities must be nonpartisan. The second platinum rule is that you as an individual—regardless of what your job is—may personally endorse, support or oppose any candidate or political party. To state it again:

  • A 501(c)(3) is not permitted to endorse, support or oppose any candidate for public office or any political party. Period. That is the law.
  • Second, as individual citizens who happen to be employed by nonprofits, you are certainly able to exercise your rights as citizens as guaranteed under the Constitution.

Let’s talk about what a nonprofit CAN do:

  • A nonprofit can conduct a voter education forum in a nonpartisan manner…in other words it is not truly nonpartisan if a nonprofit only invites one candidate. The forum must be held for the purpose of educating and informing voters, which provides fair and impartial treatment of candidates, and which does not promote or advance one candidate over another.
  • A nonprofit can operate a voter registration booth with its name displayed on the booth.
  • A nonprofit can provide transportation issues to the polls as long as it does not drive only those who will vote for a favorite candidate.
  • A nonprofit can target turnout efforts to the people or areas they serve, or population groups, students, elderly, minority groups.
  • A nonprofit can continue to do normal lobbying on issues.
  • Work on behalf of a ballot measure.
  • A 501 (c)(3) can rent or sell mailing lists to candidates at fair market value, as long as it is made available to all candidates.

Further, if a representative of a nonprofit is asked to speak publicly during an election cycle or specifically asked for opinions about candidates, representatives of a 501(c)(3) should:

  • Decide who will speak publicly on behalf of the 501(c)(3) organization, so that non-designated staff will not inadvertently say something inappropriate.
  • Script responses before talking to reporters.
  • Focus on what was said (the issue), not who said it (the candidate). Avoid talking about a candidate’s qualifications or whether someone is a good or bad candidate.
  • Avoid discussing a candidate’s record; commenting on a candidate’s record is very close to commenting on a candidate’s qualifications or whether he or she should be elected.
  • Avoid talking about voters and making references to the election. For example, instead of saying “Voters will not accept…” say, “Americans won’t accept...”
  • Avoid identifying the candidate by name. It is better to say: “During the recent Republican debate, statements were made about X. We disagree…”
  • Be very cautious if a reporter asks about which candidate is better on the 501(c)(3)’s issues, or whether the 501(c)(3) agrees with a statement a candidate made. Issue the disclaimer: “Well, as you know, we are a nonprofit and are not permitted to endorse, support or oppose any candidate.” Then go back to scripted statements and rules above.
  • A 501(c)(3) organization may urge all candidates to take a stand or act on an issue, without commenting on specific candidate statements. For example, a 501(c)(3) organization may want to urge both major party candidates in the presidential race to take more forceful action on the issue of illegal guns and violence. A 501(c)(3) making this kind of communication should be careful to avoid criticizing any candidate, and should focus on the need for all candidates to take action.

What can a nonprofit NOT do:

  • A nonprofit cannot post anything on its website or in its office that favors or opposes a candidate for public office.
  • A nonprofit cannot distribute printed material that favors or opposes a particular candidate.
  • A nonprofit should monitor any content linked to its website.
  • A nonprofit cannot do political fundraising for any candidate.
  • Do not use the “magic words” vote for or vote against a particular candidate.
  • Contribute time, facilities or money to a candidate.
  • Do not coordinate activities with a candidate.
  • Do not publish anything in official newsletters, brochures or publications of any kind that favors or opposes a candidate.
  • Do not increase the organization’s level of criticism or praise of an official or devote a special issue of its publications to an incumbent’s favorable or unfavorable record.
  • Do not distribute more copies than usual of the publication during the campaign year.
  • Do not focus on the personal character or qualifications of an incumbent, or campaign contributions of the incumbent.
  • Do not connect the organization’s criticism of a voting record of an official  to an election. For example, publicly remarking that an official is anti-immigrant and mentioning that people should register to vote.
  • Do not point out that a particular candidate’s actions (as opposed to official actions) or views are incorrect. For example, a 501(c)(3) should not urge the public to withhold campaign contributions for a Senator’s re-election if she votes for the repeal of “Don’t Ask Don’t Tell,” or remark that one candidate would be better than another candidate at creating green jobs if elected than another candidate.

Resources:

Let’s talk about what a nonprofit CAN do:

·       A nonprofit can conduct a voter education forum in a non partisan manner…in other words it is not truly nonpartisan if a nonprofit only invites one candidate. The forum must be held for the purpose of educating and informing voters, which provides fair and impartial treatment of candidates, and which does not promote or advance one candidate over another

·       A nonprofit can operate a voter registration booth with its name displayed on the booth

·       A nonprofit can provide transportation issues to the polls as long as it does not drive only those who will vote for a favorite candidate;

·       A nonprofit can target turnout efforts to the people or areas they serve, or population groups, students, elderly, minority groups

·       A non profit can continue to do normal lobbying on issues;

·       Work on behalf of a ballot measure;

·       A 501 c3 can rent or sell mailing lists to candidates at fair market value, as long as it is made available to all candidates.

Further, if a representative of a nonprofit is asked to speak publicly during an election cycle or specifically asked for opinions about candidates, representatives of a 501(c)(3) should:

·        Decide who will speak publicly on behalf of the 501(c)(3) organization, so that non-designated staff will not inadvertently say something inappropriate.

·        Script responses before talking to reporters.

·        Focus on what was said (the issue), not who said it (the candidate). Avoid talking about a candidate’s qualifications or whether someone is a good or bad candidate.

·        Avoid discussing a candidate’s record; commenting on a candidate’s record is very close to commenting on a candidate’s qualifications or whether he or she should be elected.

·        Avoid talking about voters and making references to the election. For example, instead of saying “Voters will not accept…” say, “Americans won’t accept……”

·        Avoid identifying the candidate by name. It is better to say: “During the recent Republican debate, statements were made about X. We disagree…”

·        Be very cautious if a reporter asks about which candidate is better on the 501(c)(3)’s issues, or whether the 501(c)(3) agrees with a statement a candidate made. Issue the disclaimer: “well, as you know, we are a nonprofit and are not permitted to endorse, support or oppose any candidate.” Then go back to scripted statements and rules above.

·        A 501(c)(3) organization may urge all candidates to take a stand or act on an issue, without commenting on specific candidate statements. For example, a 501(c)(3) organization may want to urge both major party candidates in the presidential race to take more forceful action on the issue of illegal guns and violence. A 501(c)(3) making this kind of communication should be careful to avoid criticizing any candidate, and should focus on the need for all candidates to take action.

What can a nonprofit NOT do:

·       A nonprofit cannot post anything on its website or in its office  that favors or opposes a candidate for public office

·       A nonprofit cannot distribute printed material that favors or opposes a particular candidate

·       A nonprofit should monitor any content linked to its website

·       A nonprofit cannot do political fundraising for any candidate

·       Do not use the “magic words” vote for  vote against a particular candidate;

·       Contribute time, facilities or money to a candidate;

·       Do not coordinate activities with a candidate;

·       Do not publish anything in official newsletters, brochures or publications of any kind that favors or opposes a candidate;

·       Do not Increase the organization’s level of criticism or praise of an official or devote a special issue of its publications to an incumbent’s favorable or unfavorable record.

·       Distributing more copies than usual of the publication during the campaign year.

·       Focusing on the personal character or qualifications of an incumbent or campaign contributions of the incumbent.

·       Connect the organization’s criticism to voting in an election. For example, publicly remarking that an official is anti-immigrant and mentioning that people should register to vote.

·       Pointing out that a particular candidate’s actions (as opposed to official actions) or views are incorrect. For example, a 501(c)(3) should not urge the public to withhold campaign contributions for a Senator’s re-election if she votes for the repeal of “Don’t Ask Don’t Tell” or remark that one candidate would be better at creating green jobs if elected than another candidate.

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