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Choice of Entity for Practicing Law in California

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Choice of Entity for Practicing Law in California CHOICE OF ENTITY FOR PRACTICING LAW IN CALIFORNIA William C. Staley, Attorney www.staleylaw.com 818 936-3490 Business Law Section SAN FERNANDO VALLEY BAR ASSOCIATION December 9, 2015 48395.DOC 121715:1041 William C. Staley CHOICE OF ENTITY FOR PRACTICING LAW IN CALIFORNIA TABLE OF CONTENTS Page 1. The Bottom Line ................................................................. 1 2. Types of Entities .................................................................. 2 3. Is a Business Entity Needed? ................................................... 2 4. Liability Analysis ................................................................. 4 5. C Corporations .................................................................... 6 6. Minimize the Double Tax on Corporate Profits with an S Corporation Election ......................................................... 10 7. Professional Corporations ...................................................... 15 8. Avoid the Double Tax on Corporate Profits with a general partnership ........................................................................ 17 9. Avoid Unlimited Liability for the Partnership Obligations with a Registered Limited Liability Partnership (an “LLP”) ..................... 20 10. Achieving Limited Liability ................................................... 27 Addenda Amended and Restated Bylaws of ABC, A Law Corporation (excerpt) A Few Troublesome Provisions of General Partnership Agreements Copyright © 2015 All rights reserved WILLIAM C. STALEY 818 936-3490 This outline should be viewed only as a summary of the law and not as a substi- tute for tax or legal consultation in a particular case. Your comments and ques- tions are always welcome. 48395.DOC 121715:1056 William C. Staley CHOICE OF ENTITY FOR PRACTICING LAW IN CALIFORNIA William C. Staley, Attorney www.staleylaw.com 818 936-3490 1. THE BOTTOM LINE An LLC cannot render legal services in California.1 A sole practitioner should not incorporate unless concerns about wrongful ac- tions by employees push the sole practitioner into a professional corporation. In that case, the new professional corporation should be an S corporation for tax purposes. A sole practitioner who joins an LLP and wants to contribute to the LLP receivables and other assets of the professional corporation will probably need to participate in the LLP through the professional corporation. It will rarely make sense to convert a professional corporation from a C corporation to an S corporation. Only in extremely rare circumstances should a professional corporation convert to an LLP. Two or more attorneys practicing together should use an LLP and not a pro- fessional corporation or a general partnership. If they are using a general partnership now, they should convert to an LLP. If they are using a profes- sional corporation with more than one shareholder, they should consider bringing new partners into an LLP of which the professional corporation is one of the partners. 1 Cal. Corp. Code § 17701.04(b). The Business & Professions Code does not au- thorize an LLC to render legal services. 48395.DOC 121715:1041 -1- William C. Staley 818-936-3490 2. TYPES OF ENTITIES In California, the alternatives for the private practice of law are: a sole proprietorship, a general partnership, a registered limited liability partnership (an “LLP,” only for accountants, architects, lawyers, land surveyors and civil, electrical and mechanical engi- neers) a professional corporation (taxed as a C corporation or an S corporation, rarely as a QSub). In other states limited liability companies (“LLCs”) can render legal services, but not in California.2 3. IS A BUSINESS ENTITY NEEDED? 3.1 A corporation or LLP is useful when liability can be imposed on a owner of the law practice without wrongful action by that owner. 3.1(a) Employees, like anyone else, are liable for their own wrongful acts. Employers are also liable for wrongful acts that employees commit in the course of their employment, even if the employee is violating company policy or specific instructions when the wrongful act occurs. The Latin name for this rule is “respondeat superior.” 3 2 Cal. Corp. Code § 17701.04(b), (e). 3 B. Witkin, Summary of California Law, IV Agency and Employment, § 165 (10th Ed. 2012). 48395.DOC 121715:1041 -2- William C. Staley 818-936-3490 3.1(b) All general partners are liable for all other general partners’ promises and contracts involving the partnership business and for the wrongful acts of all partners and employees of the partnership in the course of the partnership business.4 3.2 Changes in federal and California tax laws in the 1980s greatly reduced the tax benefits of incorporating. 3.2(a) Although federal tax rates have changed over the years, for most attorneys saving taxes is not an important reason to incor- porate. 3.2(b) However, in choosing a business entity it is important to mini- mize the risk of high tax rates and a possible double tax on operating profits. 3.3 Generally, the primary reason to incorporate or to use an LLP is the desire for limited liability: to protect the owner’s personal assets and/or the assets of other businesses from creditors of the practice. This is important: An attorney cannot limit his liability for his own negli- gence or his other wrongful acts. Again: An attorney cannot limit his liability for his own negligence or his other wrongful acts. But an attorney can limit her liability for no-fault liabili- ties, including the wrongful acts of his partners and employ- ees. She can also consider the ease with which her creditors can take her assets after there is a judgment against her. 4 Cal. Corp. Code §§ 16305, 16306. 48395.DOC 121715:1041 -3- William C. Staley 818-936-3490 3.4 Other factors to consider include the availability and sufficiency of E&O and EPL liability insurance and the fact that the personal guar- antees of the shareholders/partners generally will be required by les- sors, lending institutions and, possibly, others. 3.5 Other non-tax reasons to incorporate or to use an LLC in certain sit- uations include the availability of (a) continuity of the practice in the event of the death of the attorney, and (b) centralized management of the firm. Also, forming a business entity with another attorney can smooth the transition when an attorney dies or is incapacitated, preserving the val- ue of the practice for the attorney’s family.5 4. LIABILITY ANALYSIS 4.1 In considering whether to use an entity, the first question is: “What are the liabilities that could result from the operation of this business?” An attorney in private practice will need errors and omissions (E&O) liability insurance. Usually as much coverage as the at- torney can get. That’s a given. 4.2 Professionals and their staffs sometimes embezzle from the firm or cli- ents, harass and discriminate against each other and against people out- side the firm. Attorneys and their firms sometimes imperfectly follow California and federal labor and ERISA laws. 4.2(a) Employment practices liability (“EPL”) coverage is available and should be seriously considered. It is expensive because the risks are high. 5 Bus. & Prof. Code §§ 6180 et seq. and 6190 et seq. (court procedures to rescue a practice from an attorney who dies or for any other reason cannot attend to it); Cal. Prob. Code § 9764 (appointment of a “practice administrator” to wind down or sell the practice; note that a sole practitioner can and should nominate a practice administrator). 48395.DOC 121715:1041 -4- William C. Staley 818-936-3490 4.2(b) If all of the activities which may generate liabilities will be conducted by the sole practitioner, there is no protection to be gained from incorporating and the practice should be conduct- ed as a sole proprietorship (“Keep it simple.”), whether or not adequate insurance is available. 4.2(c) If liability may be imposed on the sole practitioner without wrongful action on his or her part, the business should be con- ducted in a professional corporation if insurance is not availa- ble to cover all of the risks that concern the attorney. An LLP can’t be used by a sole practitioner.6 4.3 General partners have unlimited liability for the actions of the other partners within the scope of the partnership business, as well unlimited liability for other claims against the partnership, for example, as an employer.7 4.3(a) Because these “vicarious” liabilities can be limited by using an LLP, it almost always makes sense to use an LLP rather than a general partnership. 4.3(b) In theory, a professional corporation with multiple sharehold- ers is an alternative to the general partnership. However, the corporate structure is somewhat rigid for a professional prac- tice. Also, several tax concerns arise with a corporation that are just not issues with an entity taxed as a partnership (which includes LLPs). 6 Cal. Corp. Code §§ 16301(8)(A), (9), 16953(a). 7 Cal. Corp. Code §§ 16305, 16306. 48395.DOC 121715:1041 -5- William C. Staley 818-936-3490 5. C CORPORATIONS 5.1 Corporations provide the most time-tested protection for a shareholder from claims that arise in the corporation’s business through no fault of that shareholder. 5.2 Corporations have their own income and their own expenses. The ex- cess of income over deductible expenses is taxable income.8 5.2(a) A corporation that is a C corporation pays its own taxes on this taxable income.9 The taxable income of a C corporation does not flow through to its shareholders and they do not pay tax on the C corporation’s taxable income. 5.2(b) In contrast, the tax items of an S corporation flow through to the shareholders and they pay tax on those items on the share- holders’ personal tax returns.10 5.3 For most C corporations, low federal income tax rates currently apply to the first $75,000 of taxable income of a C corporation.11 5.3(a) Personal service corporations (“PSC”) cannot use these lower rates.
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