A Business Owner's Guide to Preventive Law
Do-it-yourself works for a lot of things, but the legal part of your business isn't usually one of them. Consider these two scenarios:
- A company answers an ad for low-cost do-it-yourself incorporation. After filling out forms and filing with the state, the business believes it is a corporation. A couple years later, the company is involved in litigation. The opposing party proves the company failed to follow corporate formalities and holds the owners personally liable for the final judgment.
- Looking to save on legal fees, two business owners draft a contract themselves for the sale of goods. The description of the goods is vague and when they arrive the owners insist that the goods are not what was ordered.
Preventive legal care can prevent hellish situations like these. Like preventive medicine, it promises that in return for following some legal basics, companies can achieve better legal health, including fewer problems and lower costs over the long term.
Large companies know this and maintain in-house legal staff or ongoing relationships with outside law firms. Small businesses, though, often are slower to utilize available services. The reasons for the hesitancy are familiar: distrust of attorneys in general, high cost, and no perceived need. But the effects of not getting regular legal advice often are not apparent until years later, when there is litigation, and the financial ramifications can be disastrous. Properly used, early legal advice can result in cost savings, reduced tax liability, and less litigation altogether.
Areas that should be reviewed in a legal checkup:
Choice of business entity. S-corp., C-corp., other; regardless of where a company is located, there are a number of choices of entity available. An attorney should review your current form to make sure it is properly formed and the best choice for your business. The attorney should also recommend whether any additional structural work is warranted. Example: If you are a closely-held U.S. corporation, you should have a shareholder's agreement.
Current and potential contracts. Do your contracts have an attorney's fees provision? An arbitration provision? Should you have either or both? Both provisions can result in significant savings if you do end up in litigation, but there are risks associated with each. Make sure you understand them.
Also, do your contracts cover areas of liability? Could they be redrafted so costs are shifted to the other party? Example: Manufacturers can add a bold-print clause requiring that the customer pay for shipping of returns after 30 days. Given adequate notice and a reasonable time restriction, customers usually don't complain, and your costs can be reduced.
Relationships in which there is no written contract. Businesses should be aware of whether words and actions have resulted in an oral contract binding a business to terms that may prove burdensome if circumstances change. Example: A manufacturer uses a particular independent distributor. At meetings, the manufacturer talks glowingly of their future together. A few months later, the manufacturer finds a better distributor and makes the switch. The first distributor sues, alleging that it had an oral contract for a continuing relationship. A written contract making it clear that termination was allowed at any time would have minimized the likelihood of legal action.
Employee relations. Do you have a contract with your employees? Have you done or said something that would create a contract? Are you in violation of any laws of your jurisdiction? A legal audit should walk you through these questions and answers.
Both the Civil Rights Act of 1991 and the Americans with Disabilities Act encourage employers to use alternative dispute resolution rather than take disagreements between management and employees to court. Companies are increasingly turning to such alternative techniques instead of legal action to save the money and the heartburn involved in court battles.
Any civil dispute can be handled with arbitration, but it works best when the two parties must continue working together. Two booklets, A Guide to Mediation and A Guide to Arbitration, explain the advantages of nonbinding mediation and legally binding arbitration and the types of disputes they can resolve, and then outline each process. They also include a list of American Arbitration Association (AAA) offices nationwide. Both booklets are free from the AAA (212-484-4000).
--Phaedra Hise, from the April 1994 issue of Inc.
How to select an attorney:
You should select an attorney with the same effort and care that you would select any other professional or employee. Do not hire the first attorney who agrees to represent you. It is important to find one you trust and who can handle your needs.
Look at several attorneys and law firms. The first step is to gather a list of names. Ask business colleagues for referrals, making sure to find out how they know the lawyer. Someone who has handled transactions for them would be preferable over a golf buddy. Many law firms now have Web sites that enable you to research their qualifications.
Do not limit yourself. A sole practitioner may be perfect for you. Over time, sole practitioners can become very familiar with your business, and usually their rates are lower than those of a partner in a larger firm with the same amount of expertise and experience. A larger firm, on the other hand, can give you more lawyers to work with, which may be necessary if you have varied legal needs.
Interview prospective counsel. Ask the same questions that you would ask a potential employee. Find out the lawyers' backgrounds and whether they have handled clients or matters similar to yours. Ask what they think they can do for you. If you're speaking with a larger firm, find out which people will be working on your matters and what their experiences and expertise are. Ask about items that are important to you. Example: If you want to be able to talk to your lawyers at 7 a.m., make sure they will be available at that hour. Ask for and check references.
Discuss fees and billing arrangements up front. Find out hourly fees, minimum charges, and whether there are any discounts for early payment. Ask for an estimate of the initial work and whether a flat fee or an hourly fee is more appropriate. Flat fees prevent surprises but have to take into account the worst-case scenarios and may, in fact, cost more than hourly fees.
Manny Miyar, president of American Logistics Services, a $1.5-million distribution company in Northlake, Ill., ran into a legal nightmare. "A landlord misrepresented a building we leased," recalls Miyar. His $250-an-hour lawyers told him to drop the case.
Instead, Miyar switched representation, to Small Business Advocate, a Chicago law firm that offers a new twist on controlling legal costs. "We charge companies an annual premium, similar to a medical-insurance premium," explains vice-president Erika Smith Dreger. "For a start-up or a company with no history of protracted legal problems, that's $575. Then we discount our hourly billing rate of $135." For most legal services, participants pay 20%, or $27 an hour; on more complicated matters, such as Miyar's case, clients pay $67.50 hourly. There are no limits on annual usage.
Miyar eventually won a $75,000 settlement from his landlord--and intends to stay with Small Business Advocate. "Since my legal fees are discounted, I now ask questions in advance."
--Jill Andresky Fraser, from the November 1995 issue of Inc.
How to realize the savings of preventive law:
Continue to discuss fees throughout the relationship. Many business owners diligently ask questions at the initial meeting about what anticipated work will cost, but never bring up money again. Each project should be approached with the same care used in that initial meeting.
Keep in touch. Your attorney is not a mind reader. He or she doesn't know that you've just gotten a call from Hong Kong with an offer too good to refuse and a contract coming in over the fax machine. A call to your legal advisor may at least alert you to the risks and issues of taking on a Hong Kong partnership.
Do some of the work yourself--with guidance. Do-it-yourself kits can be risky, but you can take on much of the work for your company under your attorney's guidance. Most business owners can negotiate a deal without their attorney sitting in the room, and many can draft the letter of intent and send it on to the attorney for final review. An attorney, though, should draft final contracts.
Even litigation work can be done by a business owner. Examples: Owners can and should organize documents and develop the factual background of a case. A friend rather than a process server can serve an initial summons and complaint.
Ask your attorney what you can do to keep legal costs down. Some clients want an attorney who handles even the smallest details. For instance, I would never say to a client, "Why are you asking me to do this?" However, I might suggest more cost-effective means. Your attorney may know cheaper ways of handling certain actions. You do, however, have to ask.
Justene M. Adamec is a litigation partner at Pumilia & Adamec in Pasadena, Calif. The firm specializes in representing small- and medium-size businesses. E-mail her at email@example.com or visit the firm's Web site at http://png.org/pa.