Bar News - February 19, 2014
A Tool for New Hampshire LLC Lawyers
By: John M. Cunningham
By far the most common task of New Hampshire lawyers under the New Hampshire Revised Limited Liability Company Act is that of forming New Hampshire LLCs. To form LLCs competently, you need detailed knowledge of the Revised LLC Act. To acquire this knowledge, you must:
• Identify all potentially relevant provisions of the Revised Act and;
By my count, 310 provisions of the Revised Act are relevant to LLC formation practice. Obviously, the Revised Act provisions governing foreign LLCs and many New Hampshire Secretary of State “housekeeping” provisions are not relevant to this practice. However, most of the other provisions in the Revised Act are highly relevant to it.
• Categorize each of the provisions correctly into one of the act’s five statutory categories –namely, definitional, default, mandatory, non-self-enabling permissive and self-enabling permissive. The category of each provision may critically affect its impact in an LLC deal.
Of those 310 provisions, 33 are definitional, 114 are default, 95 are mandatory, 35 are non-self-enabling permissive, and 33 are self-enabling permissive. I’ve listed all of these provisions in a single 84-page Word document that contains a master table and five subtables. You can access and download this document online. The tables are also posted on my website about the Revised Act at johncunninghamonnhllcs.com.
Whenever you plan, negotiate or draft an operating agreement for a New Hampshire LLC, you should make sure that each of the provisions in it properly addresses the impact of each provision in the above master table in light of its specific statutory category and the specific facts in the deal in question. Failure to do so could cause significant injury to your client and, in extreme cases, could result in ethical or malpractice claims against you. In a future article, I will explain the specific impact of each of the above five statutory categories.
I hope the tables under the above link will be useful to you in your New Hampshire LLC formation practice. However, I obviously can’t guarantee their accuracy. If, in using them, you discover any error, please let me know. I’ll fix the error right away and post the corrected tables on the website.
John Cunningham is the principal of the Law Offices of John M. Cunningham and is of counsel to the McLane firm. He chaired the NH Business and Industry Association committee that drafted the New Hampshire Revised LLC Act and is the principal author of Drafting Limited Liability Company Operating Agreements, the leading US LLC formbook and practice manual.