When the ELC unincorporates a church, we never charge for our services. We include all the paperwork, sample letters to various agencies that should be notified of the change. Yes, we do ask for expenses for an onsite visit to the church to make sure every question is answered by everyone in the church who has a question. And we never have turned down a love offering for preaching at a church (well, I did a few times). But we never charge any set fee for anything. We are just overjoyed when a church and pastor want to divest itself of the old church corporation and become what the Bible wants it to be – a Church of the Lord Jesus Christ.
“If You Are a Trustee, You Need an Attorney” – Professor Gerry W. Beyer, Texas Tech U. School of Law
Beyer writes, “In In re Guetersloh, 326 S.W.3d 737, Trustee attempted to represent himself pro se, that is, without an attorney, in both his capacity as a trustee and in his individual capacity. The appellate court stated that Trustee had no right to proceed pro se in his representative (trustee) capacity but could proceed without an attorney with regards to claims in his individual capacity. The court explained that allowing a Trustee to proceed pro se in his representative capacity would be the unauthorized practice of law. The court stated that ‘if a non-attorney trustee appears in court in behalf of the trust, he or she necessarily represents the interests of others, which amounts to the unauthorized practice of law.’ The court relied on Steele v. McDonald, 202 S.W.3d 926 in which the court held that a non-lawyer may not appear pro se in the capacity as an estate’s independent executor. MORAL: A trustee who is not an attorney may not appear in court pro se in the trustee’s representative capacity.” In other words, Professor Beyer says that a Trustee of a Trust MUST have an attorney when he goes into court. And if the Trustee “represents the interest of others” when HE tries to go into court pro se, then the Attorney who sits with the Trustee must represent “the interest of others” also. Hmmm….interesting.
But Who Does the Attorney Really Represent?
Tina N. Babel, an attorney with Carmody McDonald in St. Louis, licensed in California, Illinois and Missouri, specializes in civil and fiduciary litigation. She writes in the Illinois Bar Journal in October 2010 and answers the question: “Does Attorney-Client Privilege Belong to the Trustee or the Beneficiary?” This specialized Trust attorney states, “In a number of jurisdictions, courts have held that when a trustee retains an attorney on behalf of the trust, the attorney’s client is in fact the beneficiary. While acknowledging that a trustee might be discouraged by the loss of the attorney-client privilege from seeking counsel’s advice, these courts emphasize that the trustee or the attorney, or both, has a fiduciary duty to beneficiaries that requires him or her to reasonably report to the beneficiaries. This approach has been labeled the fiduciary-duty exception.”
She continues: “Riggs Natl Bank of Washington, DC v. Zimmer is often cited for this proposition. In Riggs, the trustees communicated certain facts to their attorneys to secure a legal opinion for the trustees’ petition for instructions and in anticipation of potential tax litigation for the trust, and the beneficiaries sought to compel production of the attorneys internal memorandum. The Delaware Chancery Court found that because the memorandum was prepared for the benefit of the beneficiaries and there was nothing in the record to suggest that the purpose of the memorandum was ‘defensive on the trustee’s part,’ the memorandum should be produced. A number of courts follow Riggs and the policies set forth therein: that the attorneys’ client is the beneficiary of the trust and, as a result, communications with the trustee are not privileged.”
“I May Be Ignorant, but I am Not Stupid.” – Ben Townsend
First, the churches over the last 28 years that the ELC has unincorporated have never needed an Officer of the Court (Attorney) for any reason whatsoever. Any why should they need an officer of the court if the court has no jurisdiction over a church of Jesus Christ? So, why would an attorney be promoting a church polity that would include a Trust? Well, if “he” is the only attorney who is an expert in church trusts, then I suppose it is logical that he has decided not to chase ambulances, but to set up Ambulance Papers (a Trust) in order to make himself useful to those churches who use his trust. Second, if this Ordinary Attorney does go into court to represent the Trustee, is he willing to concede that in some jurisdictions he is actually representing God (as Beneficiary) in court? So, does God need this kind of representation by an officer of the court? Third, am I being kind enough to keep giving Ordinary Attorneys plenty of questions to continue to answer in their books? I sure hope so. The most difficult procedure is holding off on blog posts so these particular Ordinary Attorneys are not bombarded by them.