A benefit for all

Issue March 2014 By Joshua D. Nadreau

How the benefit corporation could ensure access to justice for the underserved

On Jan. 30, 2014, more than 500 attorneys descended on the State House to lobby their elected representatives to push for increased funding for civil legal aid in the 2014 state budget. With a goal of $17 million, attorneys from throughout the commonwealth sought to highlight the importance of such aid, particularly in a climate that has withstood a 51 percent decrease in funding since 2008, despite a nearly 200,000 person growth of those eligible for free legal representation.

Although the continued support for civil legal aid is paramount, there exists an even larger segment of the population that, while ineligible for free legal aid, are incapable of affording legal representation and remain grossly underserved in their basic legal needs. For example, only individuals making less than $14,588, or just under $29,813 for a family of four, qualify for the free assistance offered by organizations such as Greater Boston Legal Services. This results in a significant gap between those who qualify and those who can afford "market" rates. What is needed is an increased effort to promote the availability of low cost legal services, in addition to the pro bono civil aid provided to those who qualify.

One way to help bridge this gap might come from an unlikely place - our tax code. Specifically, for-profit law firms and attorneys dedicated to serving underserved populations should receive preferential tax treatment, akin to the tax breaks afforded to others engaged in "charitable" pursuits.

Within the past decade, the Supreme Judicial Court (SJC) has taken a somewhat broader view of once strict charitable tax laws. In particular, the SJC's decisions in New Habitat, Inc. v. Tax Collector of Cambridge, 451 Mass. 729 (2008), and Bridgewater State University Foundation v. Board of Assessors of Bridgewater, 463 Mass. 154 (2012), have been viewed by many commentators as a liberalization of the commonwealth's treatment of tax-exempt charitable organizations. That the SJC is willing to revisit and modernize its application of charitable tax laws suggests that it is time to reconsider the tax status of what some consider "non-traditional" or "quasi-charitable" endeavors.

Indeed, significant inroads have already been made at the liberalization of once strict limitations on a charitable organization's operations. Although charitable entities remain prohibited from distributing their income to non-charitable uses, charities are already permitted to charge substantial fees for their services and pay significant salaries to their employees.

For example, in New Habitat, the charity charged an "entrance fee" of $150,000 in addition to $17,000 a month for the brain-injured residents of its long-term housing facility. Moreover, it has become commonplace for charities to spend significant amounts of money in salaries to their employees. According to the Attorney General's 2013 report, "Massachusetts Public Charities CEO Compensation Review," CEO compensation ranged from a "low" of $487,397 to a high of $8,827,494 for CEOs of the 25 largest public charities throughout the commonwealth from 2009-2011.

Given these staggering numbers, a solo-practitioner or law firm charging $40 or $50 an hour to a client, who does not qualify for free assistance or cannot afford representation, in exchange for a lower tax bill is certainly a "quasi-charitable" endeavor. If bona fide charitable organizations are permitted to make their directors and CEOs millionaires while avoiding taxation, then it is certainly time to consider expanding the umbrella for charitable organizations to those engaging in much needed, low-cost legal services, even if they make a modest profit.

Such an expansion is unlikely to come through judicial decisions alone. Fortunately, however, an appropriate framework and enforcement mechanism largely exists already for the legislature to follow: the benefit corporation. Statutorily, benefit corporations are for-profit entities with a purpose of creating a positive impact on society. Enacted in 2012, the Massachusetts Benefit Corporation Act added Massachusetts to the 19 states and the District of Columbia that also recognize the socially conscious corporate entity.

Benefit corporations differ from traditional corporations in three significant ways. First, benefit corporation fiduciaries are permitted to prioritize social responsibility and its impacts over the corporation's bottom line without incurring the risk of shareholder litigation. Second, benefit corporations are subject to heightened oversight within the organization by virtue of the statutorily mandated "benefit director." The benefit director oversees and reports on the corporation's public benefit goals, must be independent, and may not serve in any other role within the corporation. Finally, benefit corporations are required to issue an annual benefit report, which evaluates the corporation against an independent third party metric. Consequently, benefit corporations are subject to increased accountability and oversight by both third parties and their shareholders.

Building on this concept, I propose the establishment of a new corporate entity, the "legal benefit organization" (LBO), by the legislature. Essentially, an LBO would serve clients with income higher than the eligibility guidelines for existing civil legal aid programs, but not nearly high enough to afford market-priced legal services. In exchange for reduced taxation, attorneys would be required to charge sub-market rates relative to the client's income. Such rates could be set by the Board of Bar Overseers or  he SJC and enforced by the Attorney General's Office.

Further restrictions could require legal benefit corporations to engage in a set amount of pro bono work annually. In addition to being the first mandated pro bono service in the commonwealth, it would also have the beneficial effect of reducing the tremendous burden on civil legal aid programs - programs that have seen more than $14 million cut from their annual funding since 2008.

While it may be challenging to find the right mix of tax breaks needed to incentivize a significant number of attorneys to take on this work, it is well worth the effort. Without question, the legal needs of low-income Massachusetts residents often go unmet. This is particularly true with respect to residents who earn too much to qualify for traditional civil legal aid, but not nearly enough to pay an attorney $200 or more an hour. It is also no secret that traditional legal employment opportunities are scarce. The lack of affordable legal services coupled with the annual increase in new attorneys has resulted in a paradoxical situation where there is both an over-supply and an unmet demand. The legal benefit corporation could serve to mitigate both problems concurrently. By incentivizing for-profit work on behalf of low-income individuals through reduced taxation, many attorneys would be encouraged to engage in such work, knowing that their own financial stability would not be compromised.

As U.S. former Supreme Court Justice Louis Brandeis stated in New State Ice Co. v. Liebmann, a "state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." With the evolving liberalization of the charitable tax treatment, the SJC's decision in New Habitat, and minor adjustments to the existing benefit corporation framework, Massachusetts has a chance to serve as one of Brandeis' "laboratories." Providing reduced taxation in exchange for sub-market hourly rates, be it through a legal benefit corporation or some other mechanism, would affirm that Massachusetts is serious about the plight of its underserved population and could position itself as a leader in the struggle to provide all of its residents with affordable access to justice.