LLC Articles of Organization

I've noticed occasional confusion between two LLC forms: (a) Articles of Organization and (b) the Operating Agreement. Here are two sample LLC articles of organization from the states of California and Florida. The articles of organization is the document filed with the state (usually in the office of the secretary of state) that initiates the legal existence of your LLC (usually the same day the articles are filed). Almost every state has a pre-printed form for articles of organization. They ask for rather basic information: LLC name, registered agent, location of headquarters, location of business, the LLC managers, and some ask for the LLC members. For links to articles of organization forms for all 50 states (that have forms), click on your state from this page. In two or three states (Arizona being the most notable), those who form an LLC are required to publish this fact in a newspaper in general circulation in the state shortly after the LLC is formed. In other states, the filing of the articles of organization is all that is legally required to legally bring an LLC into being.

Then what is the purpose of the operating agreement? This is the contract between members recording agreement upon such issues as ownership, voting, admission of new members, division of profits and losses, et alia. It is analogous to a partnership agreement. In single members LLCs, it is not uncommon for there to be no operating agreement. Why have an operating agreement in a single member LLC? In most states, a list of members is only filed with the state annually. An LLC operating agreement definitely sets out who are the members and who has the authority to act on behalf of the LLC. It is standard procedure for banks and other lenders / suppliers doing new business with an LLC to ask for a copy of the operating agreement regardless of the number of members.

Professional Services LLCs

Every state except California allows licensed professionals to run their professional services practice through an LLC. The two main differences between a professional services LLC and a standard LLC is that only professionals licensed by the state may be members of a professional services LLC and, in many states, there is not complete personal liability protection to professional from the LLC (as is the case with professional services corporations). An example of state law on personal liability for a professional rendering services through an LLC is found in Arizona's LLC Act:

§ 29-846. Professional relationship and responsibility.
This chapter shall not alter any law applicable to the relationship between a person performing professional services and a person receiving those services, including liability arising out of those professional services. Each member, manager or employee performing professional services shall remain personally liable for any results of the negligent or wrongful acts, omissions or misconduct committed by him or by any person under his direct supervision and control while performing professional services on behalf of the limited liability company. * * *

Another strange quirk of the LLC laws of the various states regards use of the "PLLC" versus "LLC" to designate professional services LLCs. In the 49 states and District of Columbia that allow licensed professionals to practice their profession in the LLC form, some mandate use of PLLC in the name, some mandate use of LLC (or LC) while still other allow either PLLC or LLC. Go figure.

Another common issue with professional service LLCs is exactly what professions are covered by the law. Most states, if their statutes distinguish between professionals service and regular LLCs, do not give a specific list of those professions included within the definition of "professional services". Florida is one of the fews states whose LLC statute does give us a list of covered professions.

§ 621.03 Definitions.--As used in this act the following words shall have the meaning indicated:
(1) The term "professional service" means any type of personal service to the public which requires as a condition precedent to the rendering of such service the obtaining of a license or other legal authorization. By way of example and without limiting the generality thereof, the personal services which come within the provisions of this act are the personal services rendered by certified public accountants, public accountants, chiropractic physicians, dentists, osteopathic physicians, physicians and surgeons, doctors of medicine, doctors of dentistry, podiatric physicians, chiropodists, architects, veterinarians, attorneys at law, and life insurance agents.

This list is not exhaustive but give one an idea of the breadth of the covered professions.

Operating agreements for PLLCs are generally more difficult to draft than for standard LLCs. PLLCs, by their nature, rely heavily upon the delivery of services for generating revenue and less on capital invested by its members. Thus, compensation formulas are the norm in PLLC operating agreements. Here is a link to a PLLC operating agreement template from my commercial web site.

List of Secretary of States, Corporate Divisions

In the United States, LLCs are formed by filing a form document usually called articles of organization with a state office. This office is most often the secretary of state, corporate division. I thought it would be handy for myself and the public to have links to the web sites for the secretary of state, corporate division (or equivalent office) of all 50 US states and the District of Columbia. Without further adieu, here is the list:

• Alabama
  
• Alaska
  
• Arizona
  
• Arkansas
  
• California
  
• Colorado
  
• Connecticut
  
• Deleware
  
• District of Columbia
  
• Florida
  
• Georgia
  
• Hawaii
  
• Idaho
  
• Illinois
  
• Indiana
  
• Iowa
  
• Kansas
  
• Kentucky
  
• Louisiana
  
• Maine
  
• Maryland
  
• Massachusetts
  
• Michigan
  
• Minnesota
  
• Mississippi
  
• Missouri
  
• Montana
  
• Nebraska
  
• Nevada
  
• New Hampshire
  
• New Jersey
  
• New Mexico
  
• New York
  
• North Carolina
  
• North Dakota
  
• Ohio
  
• Oklahoma
  
• Oregon
  
• Pennsylvania
  
• Rhode Island
  
• South Carolina
  
• South Dakota
  
• Tennessee
  
• Texas
  
• Utah
  
• Vermont
  
• Virginia
  
• Washington
  
• West Virginia
  
• Wisconsin
  
• Wyoming
  

As of the date of publication of this post, all the above links are good. However, I have found the secretary of state offices for the various states change around their URLs over time for whatever reason. If you find a bad link, please post a comment and I'll correct the link.

What Happens When An LLC Member Dies?

Got an email today from an individual who is a member of an LLC with two members and no operating agreement. The LLC operates a bar / restaurant and the other member died suddenly. Guess what? Without an operating agreement, the deceased member's LLC interest goes into his estate and, most likely, the spouse of the deceased member ends up as your new partner. Not all written operating agreements deal with the death or withdrawal of a member. They are somewhat complicated for one unsophisticated in business to plan for but, should the worst come to pass, you end up so much farther ahead and avoid mucho aggravation if the situation is properly planned for on the front end. The LLC operating agreement should contain a buy-sell agreement covering the death of a member.

Article VII of this sample operating agreement contains a buy-sell agreement with transfer restrictions. Section 7.3 specifically deals with the death of a member.