Do I have to form a PLLC or an LLC for my medical practice in New York?

Full Question:

I am a clinical Social worker. I know I don't need to incorporate to practice independently; however, I want to incorporate. My question if I choose to incorporate my practice is it required in New York State to incorporate as a PLLC or can I incorporate as a LLC legally and provide my professional services?
03/24/2009   |   Category: Corporations ยป Professional...   |   State: New York   |   #15746

Answer:

You may choose the entity that best suits your circumstances. In a professional corporation, ownership is restricted to members of a certain profession. A professional corporation is typically formed by licensed professionals, such as public accountants, chiropractors, dentists, optometrists, veterinarians, osteopaths, physicians and surgeons, doctors, dentists, podiatrists, chiropodists, architects, professional engineers, land surveyors, and attorneys,etc.. In a professional corporation a shareholder is not shielded from liability for his or her own malpractice in a professional corporation, but the shareholder is not liable for the malpractice of any other employee of the corporation. Professional corporations are managed in a manner similar to general corporations, though all directors and officers of a professional corporation, other than the secretary, must be qualified persons with respect to the underlying profession of the entity. The shares of a professional corporation may only be owned by similarly qualified persons, or by partnerships, other professional corporations or limited liability companies that are wholly owned by other licensed individuals.

A Limited Liability Company (LLC) provides the liability protection of a corporation and the federal tax benefits of a partnership. Just as shareholders of a corporation are protected from corporate liabilities, the owners or “members” of a limited liability company are generally not personally liable for the debts of the business, and a member’s financial risk is limited to the amount of his or her investment. Unlike a corporation, however, the income and losses of a limited liability company are not attributed to the company, but instead flow through to the members, avoiding the double-taxation encountered by corporations.

The following are NY statutes:

§ 201. Purpose.

A limited liability company may be formed under this
chapter for any lawful business purpose or purposes except to do in this
state any business for which another statute specifically requires some
other business entity or natural person to be formed or used for such
business.

§ 1204. Rendering of professional service
.
(a) No professional service
limited liability company may render a professional service except
through individuals authorized by law to render such professional
service, as individuals, provided, that nothing in this chapter shall
authorize a professional service limited liability company to render a
professional service in this state except through individuals authorized
by law to render such professional service as individuals in this state.

(b) Each final plan and report made or issued by a professional
service limited liability company practicing professional engineering,
architecture, landscape architecture or land surveying shall bear the
name and seal of one or more professional engineers, architects,
landscape architects or land surveyors, respectively, who are in
responsible charge of such plan or report.

(c) Each report, diagnosis, prognosis and prescription made or issued
by a professional service limited liability company practicing medicine,
dentistry, podiatry, optometry, ophthalmic dispensing, veterinary
medicine, pharmacy, nursing, psychology, physical therapy or
chiropractic shall bear the signature of one or more physicians,
dentists, podiatrists, optometrists, ophthalmic dispensers,
veterinarians, pharmacists, nurses, licensed psychologists, physical
therapists or chiropractors, respectively, who are in responsible charge
of such report, diagnosis, prognosis or prescription.

(d) Each record, transcript, report and hearing report prepared by a
professional service limited liability company practicing certified
shorthand reporting shall bear the signature of one or more certified
shorthand reporters who are in responsible charge of such record,
transcript, report or hearing report.

(e) Each professional service limited liability company practicing
public accounting or certified public accounting shall maintain records
indicating the identity of each public accountant or certified public
accountant, respectively, who was responsible for each report or
statement that is issued, prepared or examined by such limited liability
company.

(f) Each opinion prepared by a professional service limited liability
company practicing law shall bear the signature of one or more attorneys
and counselors-at-law who are in responsible charge of such opinion.

(g) In addition to the requirements pursuant to subdivisions (b)
through (f) of this section, each document prepared by a professional
service limited liability company that under the rules, regulations,
laws or customs of the applicable profession is required to bear the
signature of an individual in responsible charge of such document, shall
be signed by one or more such individuals.

§ 1203. Formation.

(a) Notwithstanding the education law or any other
provision of law, one or more professionals each of whom is authorized
by law to render a professional service within the state, or one or more
professionals, at least one of whom is authorized by law to render a
professional service within the state, may form, or cause to be formed,
a professional service limited liability company for pecuniary profit
under this article for the purpose of rendering the professional service
or services as such professionals are authorized to practice. With
respect to a professional service limited liability company formed to
provide medical services as such services are defined in article 131 of
the education law, each member of such limited liability company must be
licensed pursuant to article 131 of the education law to practice
medicine in this state. With respect to a professional service limited
liability company formed to provide dental services as such services are
defined in article 133 of the education law, each member of such limited
liability company must be licensed pursuant to article 133 of the
education law to practice dentistry in this state. With respect to a
professional service limited liability company formed to provide
veterinary services as such services are defined in article 135 of the
education law, each member of such limited liability company must be
licensed pursuant to article 135 of the education law to practice
veterinary medicine in this state. With respect to a professional
service limited liability company formed to provide professional
engineering, land surveying, architectural and/or landscape
architectural services as such services are defined in article 145,
article 147 and article 148 of the education law, each member of such
limited liability company must be licensed pursuant to article 145,
article 147 and/or article 148 of the education law to practice one or
more of such professions in this state. With respect to a professional
service limited liability company formed to provide licensed clinical
social work services as such services are defined in article 154 of the
education law, each member of such limited liability company shall be
licensed pursuant to article 154 of the education law to practice
licensed clinical social work in this state. With respect to a
professional service limited liability company formed to provide
creative arts therapy services as such services are defined in article
163 of the education law, each member of such limited liability company
must be licensed pursuant to article 163 of the education law to
practice creative arts therapy in this state. With respect to a
professional service limited liability company formed to provide
marriage and family therapy services as such services are defined in
article 163 of the education law, each member of such limited liability
company must be licensed pursuant to article 163 of the education law to
practice marriage and family therapy in this state. With respect to a
professional service limited liability company formed to provide mental
health counseling services as such services are defined in article 163
of the education law, each member of such limited liability company must
be licensed pursuant to article 163 of the education law to practice
mental health counseling in this state. With respect to a professional
service limited liability company formed to provide psychoanalysis
services as such services are defined in article 163 of the education
law, each member of such limited liability company must be licensed
pursuant to article 163 of the education law to practice psychoanalysis
in this state. In addition to engaging in such profession or
professions, a professional service limited liability company may engage
in any other business or activities as to which a limited liability
company may be formed under section two hundred one of this chapter.
Notwithstanding any other provision of this section, a professional
service limited liability company (i) authorized to practice law may
only engage in another profession or business or activities or (ii)
which is engaged in a profession or other business or activities other
than law may only engage in the practice of law, to the extent not
prohibited by any other law of this state or any rule adopted by the
appropriate appellate division of the supreme court or the court of
appeals.

(b) The articles of organization of a professional service limited
liability company shall meet the requirements of this chapter and (i)
shall state the profession or professions to be practiced by such
limited liability company and (A) the names and residence addresses of
all individuals who are to be the original members and the original
managers, if any, of such limited liability company, and (B) the names
and residence addresses or, if none, the business address of all
shareholders, directors, officers, members, managers and partners of all
professional service corporations, foreign professional service
corporations, professional service limited liability companies, foreign
professional service limited liability companies, registered limited
liability partnerships, foreign limited liability partnerships, and
professional partnerships who are to be the original members or
managers, if any, who are individuals of such limited liability company,
(ii) shall have attached thereto a certificate or certificates issued by
the licensing authority or by the comparable authority of another state
certifying that each of the proposed members and managers, if any, who
are individuals is authorized by law to practice a profession that such
limited liability company is being formed to practice and, if
applicable, that one or more of such individuals are authorized to
practice within the state each profession that such limited liability
company will be authorized to practice, and (iii) if such proposed
member or manager, if any, is a professional service corporation,
foreign professional service corporation, professional service limited
liability company, foreign professional service limited liability
company, registered limited liability partnership, foreign limited
liability partnership or professional partnership, (A) such certificate
or certificates issued by the licensing authority or by the comparable
authority of another state shall certify either (1) that each proposed
member or manager is authorized by law to practice a profession that
such limited liability company is being formed to practice and, if
applicable, that each shareholder, member or partner of such proposed
member or manager is authorized by law to render a professional service
within the state or (2) that one or more of such proposed members and
one or more of such proposed managers, are authorized to practice within
the state each profession that such limited liability company will be
authorized to practice and that one or more of the shareholders, members
or partners of such proposed members or managers are authorized to
practice within the state each profession that such limited liability
company will be authorized to practice within the state and (B) there
shall be attached to the articles of organization of the professional
service limited liability company a certificate by an authorized officer
of the jurisdiction of its formation that the professional service
corporation, foreign professional service corporation, professional
service limited liability company, foreign professional service limited
liability company, registered limited liability partnership or foreign
limited liability partnership is validly existing and, in the case of a
foreign professional service corporation, foreign professional service
limited liability company or foreign limited liability partnership, a
certificate from the secretary of state that such foreign professional
service corporation, foreign professional service limited liability
company or foreign limited liability partnership is authorized to do
business under article fifteen-A of the business corporation law, under
article thirteen of this chapter or under article eight-B of the
partnership law, as the case may be.

(c) (1) A certified copy of the articles of organization and of each
amendment thereto and restatement thereof shall be filed by the
professional service limited liability company with the licensing
authority within thirty days after the filing of such certificate or
amendment with the department of state.

(2) (A) Within one hundred twenty days after the filing of the
articles of organization, a copy of the same or a notice containing the
substance thereof shall be published once in each week for six
successive weeks, in two newspapers of the county in which the office of
the professional service limited liability company is located, one
newspaper to be printed weekly and one newspaper to be printed daily, to
be designated by the county clerk. When such county is located within a
city with a population of one million or more, such designation shall be
as though the copy or notice were a notice or advertisement of judicial
proceedings. Proof of the publication required by this subparagraph,
consisting of the certificate of publication of the professional service
limited liability company with the affidavits of publication of such
newspapers annexed thereto, be filed with the department of state.
Notwithstanding any other provision of law, if the office of the
professional service limited liability company is located in a county
wherein a weekly or daily newspaper of the county, or both, has not been
so designated by the county clerk, then the publication herein required
shall be made in a weekly or daily newspaper of any county, or both, as
the case may be, which is contiguous to, such county, provided that any
such newspaper meets all the other requirements of this subparagraph. A
copy or notice published in a newspaper other than the newspaper or
newspapers designated by the county clerk shall not be deemed to be one
of the publications required by this subparagraph. The notice shall
include:


(i) the name of the professional service limited liability
company;


(ii) the date of filing of the articles of organization with
the department of state;


(iii) the county within this state, in which
the office of the professional service limited liability company is
located;


(iii-a) the street address of the principal business location,
if any;


(iv) a statement that the secretary of state has been designated
as agent of the professional service limited liability company upon whom
process against it may be served and the post office address within or
without this state to which the secretary of state shall mail a copy of
any process against it served upon him or her;


(v) if the professional
service limited liability company is to have a registered agent, his or
her name and address within this state and a statement that the
registered agent is to be the agent of the professional service limited
liability company upon whom process against it may be served;


(vi) if the professional service limited liability company is to have a specific
date of dissolution in addition to the events of dissolution set forth
in section seven hundred one of this chapter, the latest date upon which
the professional service limited liability company is to dissolve; and


(vii) the character or purpose of the business of such professional
service limited liability company. Where, at any time after completion
of the first of the six weekly publications required by this
subparagraph and prior to the completion of the sixth such weekly
publication, there is a change in any of the information contained in
the copy or notice as published, the professional service limited
liability company may complete the remaining publications of the
original copy or notice, and the professional service limited liability
company shall not be required to publish any further or amended copy or
notice. Where, at any time after completion of the six weekly
publications required by this subparagraph, there is a change to any of
the information contained in the copy or notice as published, no further
or amended publication or republication shall be required to be made. If
within one hundred twenty days after its formation, proof of such
publication, consisting of the certificate of publication of the
professional service limited liability company with the affidavits of
publication of the newspapers annexed thereto has not been filed with
the department of state, the authority of such professional service
limited liability company to carry on, conduct or transact any business
in this state shall be suspended, effective as of the expiration of such
one hundred twenty day period. The failure of a professional service
limited liability company to cause such copy or notice to be published
and such certificate of publication and affidavits of publication to be
filed with the department of state within such one hundred twenty day
period or the suspension of such professional service limited liability
company's authority to carry on, conduct or transact business in this
state pursuant to this subparagraph shall not limit or impair the
validity of any contract or act of such professional service limited
liability company, or any right or remedy of any other party under or by
virtue of any contract, act or omission of such professional service
limited liability company, or the right of any other party to maintain
any action or special proceeding on any such contract, act or omission,
or right of such professional service limited liability company to
defend any action or special proceeding in this state, or result in any
member, manager or agent of such professional service limited liability
company becoming liable for the contractual obligations or other
liabilities of the professional service limited liability company. If,
at any time following the suspension of a professional service limited
liability company's authority to carry on, conduct or transact business
in this state pursuant to this subparagraph, such professional service
limited liability company shall cause proof of publication in
substantial compliance with the provisions (other than the one hundred
twenty day period) of this subparagraph, consisting of the certificate
of publication of the professional service limited liability company
with the affidavits of publication of the newspapers annexed thereto, to
be filed with the department of state, such suspension of such
professional service limited liability company's authority to carry on,
conduct or transact business shall be annulled.


(B)(i) A professional service limited liability company which was
formed prior to the effective date of this subparagraph and which
complied with the publication and filing requirements of this paragraph
as in effect prior to such effective date shall not be required to make
any publication or republication or any filing under subparagraph (A) of
this paragraph, and shall not be subject to suspension pursuant to this
paragraph.


(ii) Within twelve months after the effective date of this
subparagraph, a professional service limited liability company which was
formed prior to such effective date and which did not comply with the
publication and filing requirements of this paragraph as in effect prior
to such effective date shall publish a copy of its articles of
organization or a notice containing the substance thereof in the manner
required (other than the one hundred twenty day period) by this
paragraph as in effect prior to such effective date and file proof of
such publication, consisting of the certificate of publication of the
professional service limited liability company with the affidavits of
publication of the newspapers annexed thereto, with the department of
state.


(iii) If a professional service limited liability company that is
subject to the provisions of clause (ii) of this subparagraph fails to
file the required proof of publication with the department of state
within twelve months after the effective date of this subparagraph, its
authority to carry on, conduct or transact any business in this state
shall be suspended, effective as of the expiration of such twelve month
period.


(iv) The failure of a professional service limited liability company
that is subject to the provisions of clause (ii) of this subparagraph to
fully comply with the provisions of said clause (ii) or the suspension
of such professional service limited liability company's authority to
carry on, conduct or transact any business in this state pursuant to
clause (iii) of this subparagraph shall not impair or limit the validity
of any contract or act of such professional service limited liability
company, or any right or remedy of any other party under or by virtue of
any contract, act or omission of such professional service limited
liability company, or the right of any other party to maintain any
action or special proceeding on any such contract, act or omission, or
right of such professional service limited liability company to defend
any action or special proceeding in this state, or result in any member,
manager or agent of such professional service limited liability company
becoming liable for the contractual obligations or other liabilities of
the professional service limited liability company.


(v) If, at any time following the suspension of a professional service
limited liability company's authority to carry on, conduct or transact
business in this state, pursuant to clause (iii) of this subparagraph,
such professional service limited liability company shall cause proof of
publication in substantial compliance with the provisions (other than
the one hundred twenty day period) of subparagraph (A) of this
paragraph, consisting of the certificate of publication of the
professional service limited liability company with the affidavits of
publication of the newspapers annexed thereto, to be filed with the
department of state, such suspension of such professional service
limited liability company's authority to carry on, conduct or transact
business shall be annulled.


(vi) For the purposes of this subparagraph, a professional service
limited liability company which was formed prior to the effective date
of this subparagraph shall be deemed to have complied with the
publication and filing requirements of this paragraph as in effect prior
to such effective date if (i) the professional service limited liability
company was formed on or after January first, nineteen hundred
ninety-nine and prior to such effective date and the professional
service limited liability company filed at least one affidavit of the
printer or publisher of a newspaper with the department of state at any
time prior to such effective date, or (ii) the professional service
limited liability company was formed prior to January first, nineteen
hundred ninety-nine, without regard to whether the professional service
limited liability company did or did not file any affidavit of the
printer or publisher of a newspaper with the secretary of state.


(C) The information in a notice published pursuant to this paragraph
shall be presumed to be in compliance with and satisfaction of the
requirements of this paragraph.


(d) A professional service limited liability company, other than a
professional service limited liability company authorized to practice
law, shall be under the supervision of the regents of the university of
the state of New York and be subject to disciplinary proceedings and
penalties, and its articles of organization shall be subject to
suspension, revocation or annulment for cause, in the same manner and to
the same extent as is provided with respect to individuals and their
licenses, certificates and registrations in title eight of the education
law relating to the applicable profession. Notwithstanding the
provisions of this subdivision, a professional service limited liability
company authorized to practice medicine shall be subject to the
pre-hearing procedures and hearing procedures as are provided with
respect to individual physicians and their licenses in Title II-A of
article two of the public health law.


(e) A professional service limited liability company authorized to
practice law shall be subject to the regulation and control of, and its
articles of organization shall be subject to suspension, revocation or
annulment for cause by, the appellate division of the supreme court and
the court of appeals in the same manner and to the same extent provided
in the judiciary law with respect to individual attorneys and
counselors-at-law. Such limited liability company need not qualify for
any certification under section four hundred sixty-four of the judiciary
law, take an oath of office under section four hundred sixty-six of the
judiciary law or register under section four hundred sixty-seven of the
judiciary law.


(f) The order of suspension, revocation or annulment of the articles
of organization of a professional service limited liability company
pursuant to subdivisions (d) and (e) of this section shall be effective
upon the filing of such order with the department of state.