Hiring a good lawyer is crucial to any successful business. Here’s everything you need to know about finding, interviewing and hiring the very best.
There are two professionals every business will need early on: an accountant and a lawyer. The reasons for hiring an accountant are pretty obvious–you need someone to help you set up your “chart of accounts,” review your numbers periodically, and prepare all of your necessary federal, state and local tax returns. The reason for hiring a business attorney may not, however, be so apparent. A good business attorney will provide vital assistance in almost every aspect of your business, from basic zoning compliance and copyright and trademark advice to formal business incorporation and lawsuits and liability.
First, some general rules about dealing with lawyers: If you are being sued, it’s too late.
Most small businesses put off hiring a lawyer until the sheriff is standing at the door serving them with a summons. Bad mistake. The time to hook up with a good business lawyer is before you are sued. Once you have been served with a summons and complaint, it’s too late–the problem has already occurred, and it’s just a question of how much you will have to pay (in court costs, attorneys’ fees, settlements and other expenses) to get the problem resolved.
America’s judicial system is a lot like a Roach Motel–it’s easy to get into court, but very difficult to get out once you’ve been “trapped.” Most lawyers agree that while nobody likes to pay attorneys’ fees for anything (heck, let’s let our hair down–nobody likes paying or dealing with lawyers, period), but the fee a lawyer will charge to keep you out of trouble is only a small fraction of the fee a lawyer will charge to get you out of trouble once it’s happened.
Big firm or small firm?
Generally speaking, the larger the law firm, the greater the overhead, therefore the higher the hourly rates you will be expected to pay. Still, larger firms have a number of advantages over smaller ones. Over the past 20 years, lawyers have become incredibly specialized. If you use a solo practitioner or small firm as your lawyer(s), it’s likely that they will not have all the skills you may need to grow your business. I don’t know of any solo practitioner, and very few small firms (under 10 lawyers) that could handle your lawsuits, negotiate your lease of office or retail space, file a patent or trademark, draft a software license agreement, advise you on terminating a disruptive employee, and oversee your corporate annual meeting. Sooner or later, these “generalists” will have to refer you out to specialists, and you will find yourself dealing with two or three (or even more) attorneys. While larger firms are more expensive to deal with, they have two significant advantages:
1) They usually have all the legal skills you need “under one roof.
2) They have a lot of clout in the local, regional and (perhaps) national legal community. A nasty letter from a “powerhouse” law firm with offices in 30 states is a lot more intimidating than a nasty letter from a solo practitioner who is not admitted to practice in the defendant’s state. Also, being connected with a large, well-established law firm may have intangible benefits–they may be willing to introduce you to financing sources or use their name as a reference when seeking partnership arrangements. Certainly if you run a fast-growing entrepreneurial company that plans to go public (or sell out to a big company) some day, you would need to work with lawyers whose names are recognized in the investment banking and venture capital communities.
Types of Attorneys
Like doctors, lawyers are becoming increasingly specialized. Someone who does mostly wills, house closings and other “non-business” matters is probably not a good fit for your business. At the very least, you will need the following sets of skills. The more skills reside in the same human being, the better!
1.Contracts: You will need a lawyer who can understand your business quickly; prepare the standard form contracts you will need with customers, clients and suppliers; and help you respond to contracts that other people will want you to sign.
2.Business organizations; You will need a lawyer who can help you decide whether a corporation or limited liability company (LLC) is the better way to organize your business, and prepare the necessary paperwork.
3.Real estate: Leases of commercial space–such as offices and retail stores–are highly complex and are always drafted to benefit the landlord. Because they tend to be “printed form” documents, you may be tempted to think they are not negotiable. Not so. Your attorney should have a standard “tenant’s addendum,” containing provisions that benefit you, that can be added to the printed form lease document.
4.Taxes and licenses: Although your accountant will prepare and file your business tax returns each year, your lawyer should know how to register your business for federal and state tax identification numbers, and understand the tax consequences of the more basic business transactions in which your business will engage.
5.Intellectual property: If you are in a media, design or other creative-type business, it is certainly a “plus” if your lawyer can help you register your products and services for federal trademark and copyright protection. Generally, though, these tasks are performed by specialists who do nothing but “intellectual property” legal work. If your lawyer says he or she “specializes in small businesses,” then he or she should have a close working relationship with one or more intellectual property specialist.
Most lawyers will charge a flat one-time fee for routine matters, such as forming a corporation or LLC, but will not volunteer a flat fee unless you ask for it. Be sure to ask if the flat fee includes disbursements (the lawyer’s out-of-pocket expenses, such as filing fees and overnight courier charges), and when the flat fee is expected to be paid. Many attorneys require payment of a flat fee upfront, so that they can cover their out-of-pocket expenses. You should always ask to “hold back” 10 to 20 percent of a flat fee, though, in the event the lawyer doesn’t do the job well.
Lawyers will be reluctant to quote flat fees if the matter involves litigation or negotiations with third parties. The reason for this is bluntly stated by a lawyer friend of mine: “Even though it’s a transaction I’ve done dozens of times, if the other side’s lawyer turns out to be a blithering idiot who wants to fight over every comma and semicolon in the contracts, then I can’t control the amount of time I will be putting into the matter, and will end up losing money if I quote a flat fee.” In such situations, you will have to pay the lawyer’s hourly rate. You should always ask for a written estimate of the amount of time involved, and advance notice if circumstances occur that will cause the lawyer to exceed his or her estimate.
If a lawyer asks you for a retainer or deposit against future fees, make sure the money will be used and not held indefinitely in escrow, and that the lawyer commits to return any unused portion of the retainer if the deal fails to close for any reason. You should be suspicious of any lawyer who offers to take an ownership interest in your business in lieu of a fee.
by Sam Leccima & Shani Leccima