As a small business owner, you’re walking a legal gauntlet. Your lawyer and CPA are here to protect your sweet buttocks by predicting future problems, and either steering you away from these situations or putting the necessary documents in place to protect you going forward.
Since I’m not a lawyer, I find myself saying, “I didn’t know an lawyer can do that!” This article was a collaboration with Anitha Cadambi, a small business lawyer in California. Together we came up with typical lawyer tasks for small businesses. This article is geared toward service-based businesses with 1 to 20 employees.
Most partners forget that a simple handshake doesn’t cut it. At some point, you want to transfer everything that was scribbled down on that napkin into a more formal agreement. It could be called a Partnership Agreement, Founders’ Agreement, or Operating Agreement (where you organize as a LLC). Whatever you want to call it or however you decide to organize, just know that having an agreement that reflects everyone’s rights and obligations is a must. Of course, you also want to plan ahead for when a co-founder leaves. Typically, your small business lawyer will include a break up provision in the Founders’ Agreement detailing the necessary asset or ownership split.
This is probably the one thing you will profusely thank your legal counsel for because keeping track of documents and annual fees is definitely painful. Your legal counsel can also act as your organization’s registered agent on file, and in the event that anything comes up (legal complaints or summons, letters from the franchise board, etc.) that needs attention, you know that by having your lawyer on file, he or she will address the situation immediately.
Oh, and in the event that you are still figuring out how your small business is going to operate, your lawyer will advise you on which form of legal organization is best for your business based on your size, location, ownership, liability, tax, and financial concerns.
Since we had an entire article dedicated to service contract jargon, you should know by now that contracts are pretty damn important. But it’s a good thing you thought about hiring an attorney, because he or she is there to help you with any contract that might come up. Initially, this will include basic employment or freelancer contracts, as well as intellectual property agreements (see below).
Another annoying issue that comes up is being able to distinguish between employees and independent contractors and unpaid versus paid interns. Each type of person brings a set of legal issues that can screw you over and consulting your lawyer about this early on is important. Read more about W2 vs 1099
This is probably the only time you will really want your lawyer to be a jerk! It’s because they know how to handle (read: get rid of) disgruntled customers. Whether you are at fault or not, you probably want to avoid litigation at all costs and your lawyer will help with that. He or she will also advise you on whether settling with a customer is a good idea or not, and perhaps even be able to convince the customer to drop the lawsuit.
Yup, these are the guys that will set up your Cayman Islands’ account! Fine, they won’t, but most small business lawyers will always consider tax advantages when advising you on any business move you plan to make. This could mean a great deal of potential savings.
At issue is the fact that business owners typically forget how important it is to protect their intellectual property early on. This could be a trademark for a cool new product, the copyright for software code, or the patent for a specific technology…like the eye-pad 6! As soon as you start talking shop (whether it’s with your co-founder, a potential investor, or even your best friend), have the security of knowing that your idea or product has been protected and will continue to be protected. A small business lawyer can help you fill out the paperwork for any form of IP protection you are seeking. What’s important to remember here is that a majority of applications are thrown out because they weren’t properly filed. That’s application fees of $200 to $500 lost. And we haven’t even factored in waiting time. Your lawyer will help you get it right the first time.
When you decide to license or share your intellectual property with other people, your lawyer will draft the licensing agreement for you. They will also ensure that employees know (via contract) that any work they do for the business becomes business property and they have no IP rights to such work.
Sometimes trade secrets or confidential information gets out and you may no longer have a business. That’s when a business lawyer steps in and uses legal tools (aka the nasty letter) or something called an injunction to stop any further misuse. More importantly, in order to avoid confidential information getting out in the first place, your attorney will help draft a confidentiality agreement that will specifically prohibit misuse of confidential information.
If your website allows for other users to post content to it, you want to make sure that copyrighted information isn’t being posted and that you have a proper takedown policy. If you use social media for marketing and you host contests and raffles, you have to understand the different rules that apply to contests and raffles before hosting one. Giving out a free iPad may generate interest but it could also lead to legal issues if you don’t include proper instructions, which differ in every state. And when you have a blog that regularly gives out advice or sends out newsletters, it’s advised that you understand how to use personal email information correctly and follow the necessary privacy laws that may apply. You also might want to consider having a disclaimer on your website that clearly establishes that you are simply providing information that might be helpful, but isn’t necessarily the sure shot way of getting something done. You definitely don’t want to be held accountable because your advice backfired. Your attorney will help you with all of the above concerns.
Another issue with social media comes up when an employee posts false statements about a competitor or colleague during office hours. If this proves to be defamatory, an employer (yup, that’s right, an employer) can actually be held liable for defamation. To avoid this, a clear social media policy needs to be in place and a lawyer can help with this.
You might be an expert when it comes to numbers but often the legal implications to those numbers are misunderstood. Your lawyer can help you hash out the details when it comes to borrowing or raising money for your business.
Lawyers can help you during conferences or other marketing events that require media release waivers, liability waivers, contests, etc. Remember the four waivers you signed before attending LessConf? Yeah, a fancy lawyer wrote those!
Do you need general liability insurance? An attorney will know.
One last thing –The minute you start doing business in other states, you need to consult that state’s laws and attorneys. For all you know, your guy might have another guy in that specific state that you can consult with.
You may not have the budget to keep a small business lawyer on retainer to consult every time you need to make a decision, but we often forget to consider the legal implications of our decisions. Were you ever in a unique situation where an attorney helped you?