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Legal Advice from (non-lawyer) Parliamentarians

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If, as appears to be the case from my Internet reading (On the Internet? It must be true!), non-lawyers can get into a heap of trouble dispensing legal advice to clients, how is it that we parliamentarians are given a pass to offer (legal-?) advice about "applicable procedural rules prescribed by ... law" - p. 251( c )?

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If, as appears to be the case from my Internet reading (On the Internet? It must be true!), non-lawyers can get into a heap of trouble dispensing legal advice to clients, how is it that we parliamentarians are given a pass to offer (legal-?) advice about "applicable procedural rules prescribed by ... law" - p. 251( c )?

 

As I understand it, all that RONR suggests on this subject is that the parliamentarian should inform the chair that the assembly cannot violate applicable procedural rules prescribed by law, the rules cannot be suspended to permit the assembly to do so, and that if the assembly does so, this constitutes a continuing breach. It certainly is not telling us to provide legal advice on what such laws actually provide. That's someone else's problem. :)

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Yeah, but...

 

Deciding what law is "applicable" seems to me to be very much a legal judgment.  And if we start telling the chair what is "applicable" or not.....

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I would also note that when we're asked, "is this legal", the questioner is often only asking, "is this legitimate" (i.e. does it conform to proper parliamentary practice). So the frequent response, "we don't do legal here", is sometimes an over-reaction.

 

As for practicing law without a license, I suspect it's only a crime if you claim to be a attorney and/or get paid. But I believe there's an attorney in the house so stay tuned.

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Deciding what law is "applicable" seems to me to be very much a legal judgment.  And if we start telling the chair what is "applicable" or not.....

 

I didn't say that was our job either.

 

Let me rephrase. If a procedural rule in the law is applicable and if a proposed action would conflict with that rule, it is a matter of parliamentary law that the action is not in order, that the rules cannot be suspended to permit the action, and that if the action is taken, this would constitute a continuing breach. The parliamentarian can and should inform the chair of this. This does not mean the parliamentarian should attempt to provide legal advice on whether a particular procedural rule in the law is applicable, let alone interpret what such a law says.

 

As a practical matter, I have a passing familiarity with the procedural laws in my state - enough to know when I should make sure to place a bit of extra emphasis on the "this is not legal advice and you might want to talk to a lawyer" disclaimer. For example, if I'm advising a public body and something about executive session comes up, I might suggest to the client that they might wish to seek legal advice before they just take my advice and run with it, since my advice is based on RONR and the governing documents, not applicable law. In other cases, the client has already obtained such advice, and I will take this into account when advising the client of the principles noted above.

Edited by Josh Martin

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Deciding what law is "applicable" seems to me to be very much a legal judgment.  And if we start telling the chair what is "applicable" or not.....

That is true.  However, I would question whether a Parliamentarian knowing (or suspecting) that something is about to violate a procedural rule and saying nothing would be at least slightly derelict in their duty to the organization. 

 

The example I gave in the other thread regarding the Freedom of Information Act actually happened to me.  I was a member of a governmental body which was subject to FOIA and they were going to take a ballot vote in an election and I raised a Point of Order.  The Executive Director (who happened to be a lawyer) said that she didn't know anything about that particular rule and I not having a copy of FOIA in hand let it go and the election was held.  After the meeting I (and I suspect the ED) looked up the rule and found I was right and we had to hold the election again at our next meeting (we only met quarterly).

 

If there were a Parliamentarian at that meeting and knew of that particular rule and said nothing I can assure you that we would have been quite unhappy with him or her  If there is a concern with giving legal advice to the Chair I don't see why the Parliamentarian couldn't have let the Chair know that he or she believed that a procedural rule was about to be violated and recommend the assembly take a recess where someone could research it (hopefully someone has easy access to the internet).  At that point if the Chair and/or assembly decided to proceed anyway that would be their (semi?) informed decision.

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To begin with, it must be understood that he terms “parliamentary law”, common parliamentary law”, and “general parliamentary law”, properly understood, all refer to rules and precedents adopted or created by deliberative assemblies for the governance of their proceedings. These terms do not refer to anything created by court decisions.

 

As noted in its Introduction, the current edition of Robert’s Rules of Order embodies, as did preceding editions, a codification of the present-day common parliamentary law. This does not mean a codification of court decisions. General Robert was a parliamentarian, not a lawyer.

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Yeah, but...

 

Deciding what law is "applicable" seems to me to be very much a legal judgment.  And if we start telling the chair what is "applicable" or not.....

 

I think you could have a point. While we can reasonably expect that the chair won't ask the parliamentarian whether an action is legal or not, the chair might ask the the parliamentarian whether something is a continuing breach or not. No parliamentarian can answer that, "No, it isn't" without making some judgement as to whether there is a federal, state, or local law that applies. Assuming, the answer is No for a, b, d, and e, his only response can be, "Only if c applies."

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A certain amount of common sense is necessary here.  Consider:

 

1. Non-lawyers routinely provide basic information to others about what the law requires. When a parent tells a child not to cross the street when the sign says "Don't Walk" , or when a driving instructor tells a student what a "Yield" sign means, it is hardly likely that either will get in trouble for "practicing law without a license."  

 

2. "Ignorance of the law is no excuse." Parliamentarians, as well as others, are required to abide by the law, and that includes when advising clients.  A given organization may have adopted RONR as parliamentary authority in its bylaws, but also be incorporated under a nonprofit state statute.  RONR (11th ed.), p. 400, ll, 5-12 provides that "the basic requirement for approval of an action or choice by a deliberative assembly, except where a rule provides otherwise, is a majority vote . . . [which] means more than half of the votes cast by persons entitled to vote, excluding blanks or abstentions, at a regular or properly called meeting."  Suppose that the statute applicable to the organization's board provides that for its actions to be valid requires a majority of board members present to vote in favor.  If the parliamentarian,  because she or he either is unfamiliar with the statute or is strenuously attempting to avoid "unauthorized practice of law," advises the chair to declare adopted a motion that received a majority of votes cast but less than a majority of board members present, that parliamentarian is advising that the organization break the law.

         Moreover, in most such cases, it would be silly for the parliamentarian to urge the chair to recess the meeting so as to call up an attorney to advise concerning so clear and straightforward a point, instead of simply accurately advising the chair that the motion was not adopted. 

 

3. The reality is that because the law regulates virtually every aspect of contemporary life, there are numerous professions that require a knowledge of the law regulating that profession and require professionals to take that law into account in order accurately to advise their clients.  These include realtors, accountants, and financial advisers among many others.  It would be absurd for a financial adviser counseling a client about investments not to point out the tax advantages of a Roth IRA vs. a traditional IRA, or of municipal as opposed to corporate bonds, or in every case to urge the client to consult a tax lawyer instead of answering client questions about the well-settled and widely-known tax consequences of different investments.

 

4. Balancing the need oneself to comply with the law while avoiding unauthorized practice of the law is a matter, as I said at the outset, of exercising common sense. When the procedural law in question is complex or unclear, or when divisions within an organization make litigation regarding meeting procedure a distinct possibility, the wise parliamentarian will urge the client to consult an attorney regarding proper interpretation of the governing law. Large and well-funded organizations will often have in-house counsel, or outside counsel on a retainer, and in such cases the parliamentarian should take care to consult with the attorney(s) concerning the applicability of governing procedural law.  On the other hand, parliamentarians advising organizations to which procedural law is typically applicable, such as those that are incorporated or that operate in a highly regulated field (like labor unions), need to have a basic familiarity with the governing procedural law, and in straightforward cases must apply it in the advice they give clients, especially those that do not routinely consult a lawyer and when litigation appears to be no more than a remote possibility.

 

5. Before the 10th edition, RONR (9th ed.), p. 108, provided, "No main motion is in order which conflicts with national, state, or local law."  On its face, this seemed to provide as a matter of parliamentary procedure that, e. g., a motion relating to a financial transaction should be ruled out of order if it violated the tax laws -- seemingly requiring a parliamentarian advising the presiding officer to know and be prepared to advise concerning applicable tax legislation.  The 10th edition (p.106, ll. 23-25) altered this rule to one stating, "to the extent that procedural rules applicable to the organization or assembly are prescribed by federal, state, or local law, no main motion is in order that conflicts with such rules." (The same language is retained in the 11th edition, p. 111, ll. 6-10.)  This change makes clear that the provisions of substantive law are outside the bounds of parliamentary procedure, so that a parliamentarian is not properly called upon to advise concerning the applicability of substantive law to a pending main motion.  On the other hand, it recognizes that procedural law does indeed affect parliamentary procedure, and that such law of course supersedes conflicting provisions in the organization's governing documents and parliamentary authority.  Accordingly, it behooves parliamentarians, in order to be competent in the practice of their profession, to become familiar with -- and comply with -- the basic provisions of procedural law that may be applicable to a client -- just as a realtor must be basically familiar with real estate law, a driving instructor with the laws governing use of the roads, and a financial adviser with the basic laws governing investments.  This emphatically does not mean that parliamentarians should presume to the same level of expertise as lawyers or act as such.  Instead, common sense and experience should enable parliamentarians to judge when uncertainty  or dispute about the application of procedural law rises to a level at which it is desirable or essential to advise the client to consult an attorney and  to refrain from oneself attempting to interpret the law.  To repeat, this is the same sort of judgment that competent realtors, accountants, and financial advisers must regularly make.

 

In short, it is possible to fall off either side of the horse -- either to fail to abide by the law by failing accurately to advise a client concerning the applicability of clear provisions of procedural law, or to improperly attempt to interpret complex or disputed applications of procedural law that should be left to attorneys.  There is no mechanical "bright line" that can be invoked to delineate the line that should not be crossed; instead, common sense and experience must be relied upon regarding parliamentarians' advising clients regarding the application of procedural law just as is true of many other professionals advising their clients regarding matters governed by other sorts of law.

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2. "Ignorance of the law is no excuse." Parliamentarians, as well as others, are required to abide by the law, and that includes when advising clients.  A given organization may have adopted RONR as parliamentary authority in its bylaws, but also be incorporated under a nonprofit state statute.  RONR (11th ed.), p. 400, ll, 5-12 provides that "the basic requirement for approval of an action or choice by a deliberative assembly, except where a rule provides otherwise, is a majority vote . . . [which] means more than half of the votes cast by persons entitled to vote, excluding blanks or abstentions, at a regular or properly called meeting."  Suppose that the statute applicable to the organization's board provides that for its actions to be valid requires a majority of board members present to vote in favor.  If the parliamentarian,  because she or he either is unfamiliar with the statute or is strenuously attempting to avoid "unauthorized practice of law," advises the chair to declare adopted a motion that received a majority of votes cast but less than a majority of board members present, that parliamentarian is advising that the organization break the law.

         Moreover, in most such cases, it would be silly for the parliamentarian to urge the chair to recess the meeting so as to call up an attorney to advise concerning so clear and straightforward a point, instead of simply accurately advising the chair that the motion was not adopted. 

 

Without losing sight of the important point that parliamentarians have a duty to apply common sense and not just become helpless (or worse) in the face of procedural laws, I think there are some real problems that non-lawyer parliamentarians face:

  • It seems to me that there is hardly ever such a thing as a clear and straightforward point when it comes to laws relating to parliamentary procedure. For example, in the scenario of a statute requiring the vote of a majority of the board members present for taking action: What vote is required for motions to limit or close debate, or other procedural actions that normally require a two-thirds vote? What about other secondary motions, like Amend, that don't dispose of the main motion? What about those that do, like Postpone Indefinitely? What about motions to rescind or to amend something previously adopted? What about motions to adopt or amend special rules of order -- and to what extent can special rules of order be adopted at all? Can a special rule of order be adopted that requires previous notice of certain motions, or would that conflict with the given voting requirement? What effect does the adoption of RONR as parliamentary authority have on the applicability of the statutory provision? Does it matter whether that adoption was placed in the bylaws or done separately?
  • If the need does arise to consult with the organization's lawyer, what happens if the lawyer does not understand enough about parliamentary procedure to make proper sense of the situation? Then he has to consult another lawyer who does, and when something comes up at a meeting, there is practically no way to resolve it on the spot, even with taking a recess. It might take weeks or months to get a proper answer, or it might not happen at all.
  • When the lawyers do come up with an answer, it might be apparent to the parliamentarian that the answer is incorrect, or at least that the reasoning supporting it is based on a flawed understanding of the parliamentary issue involved. Should the parliamentarian then simply parrot the legal advice given, or push back on it?
  • Parliamentarians are not licensed professionals like real-estate agents or accountants, so there is not an abundance of resources for them to turn to in trying to understand the meaning and application of the relevant statutes on even a basic level.

I guess this is the kind of stuff that makes life a little less dull for those involved in it, but I don't expect the situation to improve greatly until the lawmakers stop trying to legislate parliamentary procedure (except the really legal things, like proxies) and simply leave the job to RONR. :)

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I guess this is the kind of stuff that makes life a little less dull for those involved in it, but I don't expect the situation to improve greatly until the lawmakers stop trying to legislate parliamentary procedure (except the really legal things, like proxies) and simply leave the job to RONR. :)

 

1. 'Tis a consummation devoutly to be wished, but don't hold your breath . . . 

 

  • Parliamentarians are not licensed professionals like real-estate agents or accountants, so there is not an abundance of resources for them to turn to in trying to understand the meaning and application of the relevant statutes on even a basic level.

 

 

2. The American College of Parliamentary Lawyers http://www.parliamentarylawyers.org/ , it is hoped, will be of some use in educating parliamentarians about procedural law - as well as in explaining parliamentary law to lawyers!

 

Presentations to the Maryland Lawyers Unit have identified when and how that state's nonprofit statutes override RONR. The National Parliamentarian has published detailed articles by Michael Malamut explaining the applicable procedural law under the new DC Nonprofit Code.  Attorney-parliamentarians in the various states can do a real service by preparing similar educational materials about pertinent state law for parliamentarians -- with the caveat that it is crucial to update these materials regularly to take account of changes in the governing statutes, or in interpretations of them by the courts.  With the exceptions such as those I've previously mentioned (e.g., the organization has an attorney or litigation is a real possibility) parliamentarians could in most cases legitimately rely on such  information in advising clients on matters on which the procedural law appears quite clear.

 

 

 

  • When the lawyers do come up with an answer, it might be apparent to the parliamentarian that the answer is incorrect, or at least that the reasoning supporting it is based on a flawed understanding of the parliamentary issue involved. Should the parliamentarian then simply parrot the legal advice given, or push back on it?

3. This is indeed a serious problem.  Obviously, what the parliamentarian can successfully do when the lawyer clearly misunderstands parliamentary procedure depends a lot on the relationship the two have, the persuasiveness of the parliamentarian, and the receptivity of the attorney -- not to mention the time available. (This is one good reason to do one's best to think through contingencies in advance of the meeting, and confer with the attorney regarding them, so as to minimize unexpected issues arising during the course of the meeting itself.)  I think the parliamentarian ought to do his or her best prudently to educate the attorney.  I and other parliamentarians I know have on occasion been successful in doing so. In the end, however, if the organization's attorney -- rightly or wrongly -- gives an opinion regarding the application of the governing law to the procedural situation, it is not the parliamentarian's place to do other than defer to it.

 

 

 

  • It seems to me that there is hardly ever such a thing as a clear and straightforward point when it comes to laws relating to parliamentary procedure. For example, in the scenario of a statute requiring the vote of a majority of the board members present for taking action: What vote is required for motions to limit or close debate, or other procedural actions that normally require a two-thirds vote? What about other secondary motions, like Amend, that don't dispose of the main motion? What about those that do, like Postpone Indefinitely? What about motions to rescind or to amend something previously adopted? What about motions to adopt or amend special rules of order -- and to what extent can special rules of order be adopted at all? Can a special rule of order be adopted that requires previous notice of certain motions, or would that conflict with the given voting requirement? What effect does the adoption of RONR as parliamentary authority have on the applicability of the statutory provision? Does it matter whether that adoption was placed in the bylaws or done separately?
  •  

 

4. These are theoretically apt questions.  Of course much depends on the actual language of the statute.  As a lawyer as well as a parliamentarian, I will simply say that in my experience the nonprofit corporation statutes that are applicable tend to state a minimum requirement for board action -- i.e., the vote that is required, but not necessarily sufficient, for adoption of what amounts to a main motion. Thus a secondary motion, such as an amendment, would be adoptable by a majority of the votes cast, while adoption of the main motion, as it may or may not have been amended, would require a majority of those present to adopt. I hasten to add that this generalization should not be relied upon for the application of any particular state's law; for that see my # 2 above.  I mention it only in support of the proposition that in practice there are likely to be some points of procedural law on which there is little dispute and reasonable clarity.

 

To draw an analogy, what about the law that one must stop at a red light?  One can certainly imagine potential legal exceptions or complexities concerning that requirement.  What if one is a firefighter or ambulance driver?  Suppose you are driving someone in active labor to the hospital?  What if you've been rear-ended at the light and you reasonably believe thieves--or worse-- in the car ramming yours are about to attack you? The law may well address these either in statutory exceptions or in case law applying the doctrine of necessity.  Yet does this mean a driving instructor had better not tell students they need to stop at a red light without bringing in an attorney to lecture on the question?  

 

My point is that parliamentarians advising clients subject to laws that impact parliamentary procedure ought to take reasonable steps to inform themselves concerning the applicable law (again, see # 2) and then to apply prudence and common sense in individual cases to judge whether it is necessary to push the client to consult an attorney or whether it is reasonable simply to advise the client concerning the proper parliamentary procedure as modified by the applicable law.

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And this discussion by Dan, Burke, and Shmuel could produce an excellent article for the NP. NAP members would welcome and appreciate it. There have been interesting articles about this topic in the past, but new members enter the scene all the time and do not know about those articles.

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I echo Ann Rempel's comment.  I don't know about others but I avoid assignments where the applicable procedures will mostly be governed by statute.  I've also noticed that in a great many situations, procedural rules in statute defer to the bylaws and other rules of the organization, but as we know, societies don't have perfect bylaws and what the statute is willing to defer to often isn't there or isn't clear to begin with.

 

I can't fathom going into an assignment not knowing the bare bones about what some statutes might say when it comes to a quorum, or relief and procedures that may exist if one is not present, the vote required to adopt various main motions, and heaven forbid the assignments that contain proxy voting.

 

Thankfully the well funded organizations that Mr. Balch mentions have legal assistance on demand, either from their top employees who are lawyers or in house/outside counsel they use regularly.  Most lawyers I've encountered don't like parliamentary law so they're happy to defer to the parliamentarian when advised in areas of "parliamentary law", but they're right there to point out issues in statute that may apply.  Those assignments are rewarding in my experience.

 

Lastly, it's often easier to deal with these issues when the assignment is a written opinion versus handling issues on the fly in the middle of a meeting.  At least with a written opinion some qualifiers can be inserted and could be reviewed by an expert in the statute later.  In the meeting there's no luxury of time so you have to do the best you can, which, as noted, simply entails some very basic preparation and giving the best advice possible at the moment.  Some issues are simply not going to be resolved in the middle of the meeting.

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