The question of whether rendering professional services is permitted through a Foreign Corporation, meaning a corporation or S-Corp formed in a state other than California, is a matter of legal interpretation. This article aims to dissect the legal framework governing the use of Foreign Corporations, such as Delaware Corporations, Nevada S-Corps, or Wyoming S-Corps for attorneys rendering legal services in California.

In California, the structure and organization of businesses that attorneys may use to provide legal services are subject to specific legal and regulatory considerations. Attorneys must contemplate the most suitable corporate form for tax liability by minimizing both income and self-employment taxes as well as personal liability and personal asset protection concerns such as separating personal and corporate assets and practicing in a business entity that provides limited liability protection to protect personal assets. To undertake their legal practice without losing sight of the legally permissible forms of business structures, attorneys should seek the advice and counsel of both experienced corporate attorneys and their tax advisors when choosing a business structure for their legal practice.

Given the stringent regulations on the provision of legal services in California, understanding the nuances and requirements is crucial for attorneys seeking to incorporate their California-based attorneys practices in Foreign Corporations. This article endeavors to provide a clear, informative, and practical answer for attorneys considering the use of a Foreign Corporation for their legal practice and to inform attorneys who might currently be practicing law in California in a Foreign Corporation of their options to get into compliance with the California Corporations Code, the California Business and Professions Code, and the rules and regulations of the State Bar of California and other governmental agencies.

Executive Summary: Putting the Conclusion First for Busy Attorneys

California licensed attorneys may not practice law in California using a Foreign Corporation, and instead must opt for a California Professional Law Corporation. This prohibition excludes Foreign Professional Corporations, which under specific circumstances may be used to practice law in California, but similar to the restrictions on the use of a limited liability company for practicing law, which precludes the use of both California LLCs as well as foreign LLCs and PLLCs and requires conversion from the California LLC or foreign LLC or PLLC into a California Professional Corporation.

What is a Foreign Corporation?

A Foreign Corporation is a corporation organized and existing under the laws of a state other than California. A Foreign Corporation may be easily identified by reading the Purpose Statement of the Articles of Incorporation or Certificate of Incorporation. The Purpose Statement of a California Corporation will indicate that the corporation is organized under California law. The Purpose Statement or other language of a Foreign Corporation formed in a state other than California will indicate that the corporation was organized under the laws of a state other than California.

What are the Options for Professionals Who Render Professional Services in California with a Foreign Corporation?

Attorneys rendering professional services in California within a Foreign Corporation should immediately seek informed legal guidance to either form a new California Professional Law Corporation or convert the Foreign Corporation into a California Professional Law Corporation to ensure compliance with the nuanced requirements set by the California Corporations Code, the California Business and Professions Code, and the rules and regulations of the State Bar of California or any other regulating governmental agency before continuing to render professional services in California.

Contact the experienced attorneys at San Diego Corporate Law today for personalized legal solutions tailored to the unique needs of your legal practice. Our team of corporate attorneys is dedicated to helping you seamlessly transition into a compliant corporate structure, safeguarding the future of your legal practice and protecting the legal license you studied and worked hard to obtain.

What are Foreign Corporations?

In the context of rendering professional services in California, Foreign Corporations are out of state corporations formed under the laws of a state other than California. While similar in many respects to California Corporations and California S-Corps, Foreign Corporations differ with respect to their ability to be used for a legal practice by a California licensed attorney in California. Understanding the nuances between these corporate structures is essential for attorneys intending to establish or continue their legal practices within the legal frameworks of California or any other state. This section will discuss the attributes of both Foreign Corporations and California Professional Law Corporations.

While a Foreign Corporation may generally apply for authority to transact business in California (sometimes referred to as California foreign qualification or registration), this only applies to general business activities and does not extend to professional practices, such as legal practices, in California. After completing foreign qualification, a Foreign Corporation may be recognized broadly across various states, allowing for a degree of uniformity in both interstate and intrastate business operations.

What is a California Professional Law Corporation?

California Professional Law Corporations are specialized entities formed pursuant to the Moscone-Knox Professional Corporation Act specifically for rendering legal services pursuant to a legal license in California. While not all professions in California that require a state license may be formed as a California Professional Corporation, licensed attorneys have California Professional Corporations and must use a California Professional Law Corporation to practice law in California in a corporate structure. This differentiation ensures that attorneys are able to comply with specific legal stipulations governing their legal practice, including liability and practice requirements, thereby protecting both the attorneys and the public they serve.

Comparison of Foreign Corporations versus California Professional Law Corporations

The key differences between a Foreign Corporation and a California Professional Law Corporation are as follows:

• A Foreign Corporation is formed in a state other than California, while a California Professional Law Corporation is formed under the laws of the State of California, specifically the Moscone-Knox Professional Corporation Act and the California Corporations Code.

• Foreign Corporations may only transact general business activities in California after applying for authority to transact business in California (California foreign qualification or registration), whereas California Professional Law Corporations are specifically designated for rendering legal services in California.

• Foreign Corporations, even after applying for authority to transact business (California foreign qualification or registration) in California to transact general business activities in California still may not be used for practicing law.

How to Identify Foreign Corporations and California Professional Law Corporations?

Since Foreign Corporations cannot be used to render legal services in California and California Professional Law Corporations must be used to practice law in corporate form, it is important for every attorney to identify whether they are practicing law as a Foreign Corporation or a California Professional Law Corporation.

The corporate documents of a Foreign Corporation such as the Articles of Incorporation, Bylaws, and Stock Certificates, should contain language specific to the jurisdiction in which the Foreign Corporation was registered. Similarly, the Articles of Incorporation, Bylaws, and Stock Certificates of a California Professional Law Corporation should contain language specific to the formation of the California Professional Law Corporation under California law and also include language specifying the practice of law under the California Professional Law Corporation.

Purpose Statement of a Foreign Corporation

A Foreign Corporation may be easily identified by reading the Purpose Statement in the Articles of Incorporation or Certificate of Incorporation. The Purpose Statement of a Foreign Corporation will include language indicating the state laws under which the corporation was formed, and this will be a state other than California, although the specific wording will vary from state to state.

Purpose Statement of a California Professional Law Corporation

A California Professional Law Corporation may be easily identified by reading the Purpose Statement in the Articles of Incorporation. The Purpose Statement of a California Professional Law Corporation will read as follows:

“The purpose of the corporation is to engage in the profession of law and any other lawful activities (other than the banking or trust company business) not prohibited to a corporation engaging in such profession by applicable laws and regulations. This corporation is a professional corporation within the meaning of California Corporations Code section 13400 et. seq.”

If the Purpose Statement indicates formation of the corporation under California law, but does not specify the profession of law, those Articles of Incorporation are likely for a California General Stock Corporation, such as a California Corporation or California S-Corp, which may not be used to render professional services in California and should either be converted to or replaced with a California Professional Law Corporation for rendering legal services in California.

What to Do if Practicing Law in a Foreign Corporation?

Attorneys practicing law in California using a Foreign Corporation should contact the experienced attorneys at San Diego Corporate Law today for personalized legal solutions tailored to the unique needs of their legal practice. Our team of corporate attorneys is dedicated to helping attorneys seamlessly transition into compliant corporate structures, safeguarding the future of their legal practice and protecting the legal license they studied and worked hard to obtain.

What are the Options for Attorneys Rendering Legal Services in a Foreign Corporation?

In California, attorneys who discover they are not incompliance with the California Corporation Code, the California Business and Professions Code, and the rules and regulations of the State Bar of California or other regulating governmental agency because they are practicing law as a Foreign Corporation should cease operating as a Foreign Corporation as soon as possible.

These attorneys are presented with two viable pathways to align their business structure with California laws and regulations: (1) forming a new California Professional Law Corporation and thereafter dissolving and winding up their Foreign Corporation (unless they will continue to render professional services with the Foreign Corporation outside of California); or (2) converting the existing Foreign Corporation into a California Professional Law Corporation. This section of the article will explore the considerations involved in each option, providing a clear roadmap for attorneys facing the need to navigate this transition.

Forming a New California Professional Law Corporation and Dissolving and Winding Up the Foreign Corporation (or Keeping the Foreign Corporation for Rendering Legal Services Outside of California)

Forming a new California Professional Law Corporation as a means to come into compliance with the California laws and regulations for corporate structures permitted to be used for legal practices is a viable option for attorneys operating their legal practice under a Foreign Corporation. This option entails the establishment of a California Professional Law Corporation that adheres to the specifics outlined in the Moscone-Knox Professional Corporations Act, the California Corporations Code, and California Business and Professions Code, thereby enabling the attorney to legally render legal services within the State of California.

Forming a California Professional Law Corporation

The initial step in forming a California Professional Law Corporation is drafting and filing Articles of Incorporation specific to the profession of law with the California Secretary of State, including the required filing fee. These Articles of Incorporation should include the required Purpose Statement for a California Professional Law Corporation and should also comply with all pertinent codes and regulations specific to the profession of law. Subsequently, it is essential to adopt corporate Bylaws that govern the internal operations of the California Professional Law Corporation. All of the required language that must be included in the corporate documents of a California Professional Law Corporation should be included in the Articles of Incorporation and the corporate Bylaws. A California Statement of Information, Internal Revenue Service EIN, S Corporation election, California Limited Offering Exemption Notice, and FinCEN Beneficial Ownership Information Report should be filed for the new California Professional Law Corporation, and all other corporate documents should be drafted and adopted.

Dissolving and Winding Up a Foreign Corporation

Upon the successful formation of the California Professional Law Corporation, attention must then turn to the dissolution and winding up of the Foreign Corporation. This process involves settling debts and obligations, distributing any remaining assets, and filing the necessary documentation with the state in which the Foreign Corporation is registered to officially terminate the corporate existence of the Foreign Corporation. An attorney licensed to practice in the state where the Foreign Corporation is registered should assist with the dissolution and winding up of the Foreign Corporation.

Of course, the Foreign Corporation may continue its existence and operations if it will continue to be useful to its owner(s) after the legal practice in California is transferred to the newly formed California Professional Law Corporation.

Converting the Existing Foreign Corporation into a California Professional Law Corporation

Not all states allow the conversion of business structures registered in their state to other states. However, if permitted, the process of converting a Foreign Corporation registered in a state other than California into a California Professional Law Corporation would allow a professional rendering legal services in California with a Foreign Corporation to come into compliance with California law.

If permitted by the laws of the state in which the Foreign Corporation was formed and exists, the conversion of an existing Foreign Corporation into a California Professional Law Corporation is an alternative to forming a new California Professional Law Corporation. The conversion process, when permitted by the foreign jurisdiction, necessitates meticulous planning and strict adherence to California law. This route allows business entities to transition structure without the need to dissolve the original business entity and form a new business entity, thus retaining its existing operational history, relationships, contracts, and potentially Internal Revenue Service EIN if the taxation type of the Foreign Corporation converting is the same as the resulting California Professional Law Corporation it is converted into.

Converting a Foreign Corporation into a California Professional Law Corporation

The initial step in converting a Foreign Corporation into a California Professional Law Corporation is filing Articles of Incorporation Conversion specific to the profession of law with the California Secretary of State together with the required filing fee. These Articles of Incorporation Conversion should include the required Purpose Statement for a California Professional Law Corporation and should also comply with all pertinent codes and regulations specific to practicing as an attorney in California.

Subsequent to the filing of Articles of Incorporation Conversion, it is essential to adopt new corporate Bylaws that govern the internal operations of the California Professional Law Corporation, as these corporate Bylaws will differ significantly from the corporate Bylaws used by a Foreign Corporation. All of the required language that must be included in the corporate documents of a California Professional Law Corporation should be included in the Articles of Incorporation Conversion and the corporate Bylaws.

A California Statement of Information and FinCEN Beneficial Ownership Information Report should be filed after conversion of a Foreign Corporation into a California Professional Law Corporation, and all other corporate documents required should be drafted and adopted.

Deciding between Forming a New California Professional Law Corporation and Converting a Foreign Corporation

Deciding between forming a new California Professional Law Corporation and converting an existing Foreign Corporation into a California Professional Law Corporation ultimately depends on the specific circumstances and needs of the attorney. Both options have their advantages and disadvantages, and consulting with a legal professional is recommended to determine the best course of action. Factors such as the complexity of the current business structure, potential tax implications, and timeline for transition should be carefully considered before making a decision. However, the following presents some of the considerations that should be examined when choosing a path toward rendering legal services in California with a California Professional Law Corporation.

When is Forming a New California Professional Law Corporation and Dissolving and Winding Up a Foreign Corporation the Best Option?

Transitioning to a California Professional Law Corporation not only assures compliance with California law but also provided the limited liability status for professional shareholders, which is crucial for protecting personal assets from business liabilities. Additionally, it aligns the business structure not only with the norms and expectations of the legal practice within California, potentially enhancing its legitimacy and reputation among peers and clients, but also complies with the legal requirements for the legal practice in California.

Forming a new California Professional Law Corporation and dissolving and winding up the previously used Foreign Corporation is generally the less expensive of the two options, however, if the administrative burden of managing contracts with clients, vendors, business bank accounts, loss of operating history, or insurance coverage or panels would be less cumbersome with a conversion of the Foreign Corporation into a California Professional Law Corporation, the higher legal fees may justify using the conversion option as opposed to the formation of a new California Professional Law Corporation and the dissolution and winding up of the Foreign Corporation.

When is Converting a Foreign Corporation into a California Professional Law Corporation the Best Option?

Conversion of a Foreign Corporation into a California Professional Law Corporation presents a practical option for attorneys seeking to align their corporate structure with the legal regulatory requirements of California laws and regulations without disrupting the continuity of their business operations. While legal fees for conversion are generally higher than forming a new California Professional Law Corporation, conversion allows for a seamless transition without the need to dissolve and wind up the Foreign Corporation. Additionally, it also preserves existing contracts, relationships, and operational history of the business entity.

Converting a Foreign Corporation into a California Professional Law Corporation is ideal for attorneys who have already established a successful business presence in California but want to bring their corporate structure into compliance with California law.

Conclusion

Attorneys navigating the transition from practicing under a Foreign Corporation to practicing under a California Professional Law Corporation should consult with legal and financial advisors to ensure a seamless and compliant shift from the Foreign Corporation to the California Professional Law Corporation. Legal and financial advisories play a key role in navigating the new California Professional Law Corporation formation process or Foreign Corporation conversion process, ensuring that the transition not only complies with California laws and regulations, but also positions the legal practice for sustained success and growth within the legal framework of a California Professional Corporation.