As parliamentarians we are frequently reminded that we cannot give legal advice. National Parliamentarian articles sometimes end with the caveat: "The author is not an attorney, and this is not a legal opinion."
However, at times the distinction between a parliamentary opinion and a legal opinion can be fine, if not non-existent. Betty Green noted this parliamentary procedure dilemma in her "RONR & the Law" article for the National Parliamentarian.1 In her example, the bylaws of an Illinois non-profit corporation and RONR suggested that proxy voting was prohibited. However, an Illinois statute governing non-profit corporations suggested that proxy voting was permitted. According to Green, this conflict places parliamentarians "in a no win position." To advise that proxy voting is prohibited could be an unauthorized practice of law in that it requires an interpretation of the Illinois statute. On the other hand, by not giving an opinion the parliamentarian violates his duties as a parliamentarian and may even commit malpractice "by showing a lack of knowledge in his own area of expertise, RONR." How can a parliamentarian fulfill his duties in such a situation without improperly practicing law?
Concern about the unauthorized practice of law is not limited to parliamentarians who charge a fee for their services. True, courts in some states have held that whether a fee was charged is an important factor in determining whether specific conduct constituted the practice of law.2 However, other courts have determined unauthorized practice of law cases without regard to whether a fee was charged for the services.3 Regardless of whether a fee is charged, all parliamentarians should be concerned about whether their advice improperly includes legal opinions.
Even attorneys who are parliamentarians must sometimes distinguish between legal opinions and parliamentary opinions. For instance, I am licensed to practice law in the state of North Carolina; yet the national organizations I assist as a parliamentarian are typically incorporated in other states. If I am asked to give advice to an organization that is governed by another state’s laws, I refer such questions to a lawyer in that state who practices in that area of law. Even as an attorney I must occasionally inform a client that I should not give legal opinions as to certain issues.
To declare that parliamentarians should not give legal opinions is meaningless without defining what it means to "practice law." The practice of law is generally understood to embrace (1) performing services in a court of justice in any matter; (2) the representation of others before judicial or administrative bodies, (3) the preparation of legal instruments and contracts, and (4) giving legal advice or rendering a service that requires the use of legal knowledge or skill.4 Few of these categories should ever concern parliamentarians. Even the task of “giving legal advice or rendering a service that requires the use of legal knowledge or skill” rarely applies to parliamentary situations.
Although frequently referred to as parliamentary “law,” parliamentary rules are procedural, not substantive, law.5 Parliamentary procedure does not have the force of public law and usually does not result in judicial review.6 For this reason, a parliamentarian can give a standard opinion on parliamentary procedure without engaging in the practice of law. However, there are situations in which a parliamentarian must be careful not to inadvertently give a legal opinion.
Parliamentarians should be particularly cautious when advising two types of deliberative assembly: public bodies and corporations. Public bodies (such as legislatures, county commissions, and school boards) and corporations exist only as a result of statutes. Each is governed by numerous state (and sometimes federal) laws regulating voting, notice requirements, and quorum. Public bodies are often further restricted by open meeting laws which proscribe closed, or executive, sessions. Interpretation of such statutes and their effect on the corporation or public body is clearly the practice of law and should be done by an attorney. Luckily, public bodies and corporations almost always retain attorneys who can render legal opinions and can work with the parliamentarian during meetings.
Other danger areas for parliamentarians concern the creation and dissolution of organizations. The requirements for incorporation, whether an organization is for-profit or non-profit, are established by statute. As stated in RONR (11th Ed.): "A corporate charter should be drafted by an attorney and must then be processed in accordance with the legal procedure for incorporation in the state (or under federal law if applicable)."7 At least one court has held that the drafting of a corporate charter and bylaws are important contractual documents/legal instruments and constitute the practice of law.8 RONR (11th Ed.) suggests that if a society is likely to "own real estate, become a beneficiary under wills, engage employees, or the like," the bylaws committee should consult an attorney.9 As with incorporation, RONR (11th Ed.) recommends that an attorney be consulted on issues of merger, consolidation, or dissolution of an incorporated society.10 Similarly, The Standard Code of Parliamentary Procedure (4th Ed.) states that “an attorney’s services are essential” in situations that include (1) incorporating the organization; (2) entering into or altering important contacts; (3) transactions involving real or personal property; (4) merging or dissolving the organization; (5) expeling a member.11
Parliamentarians should be concerned about the improper practice of law, but should not worry about it. I have never heard or read of an injunction or criminal proceeding brought against a professional parliamentarian as the result of improper legal advice. American Jurisprudence, a legal encyclopedia, cites no cases involving parliamentarians in its numerous examples of the unauthorized practice of law. In addition, the slight possibility of giving improper legal advice while serving as parliamentarian can be minimized even further by observing the following guidelines:
Jim Slaughter is an attorney, Certified Professional Parliamentarian, Professional Registered Parliamentarian, and past President of the American College of Parliamentary Lawyers. He is author of The Complete Idiot’s Guide to Parliamentary Procedure Fast-Track and lead author of Notes and Comments on Robert’s Rules, Fourth Edition.
Updated and reprinted with permission from “Parliamentarians: Avoid the Practice of Law,” National Parliamentarian, First Quarter 1995.
Charts and articles are intended to provide general information on parliamentary procedure and are not legal advice or a legal opinion.