As I talk to various groups, I discuss many topics that relate to creative business and entrepreneurship—contracts, copyrights, trademarks, licensing, e-commerce, patents, employment issues, taxes, and minimizing risk and liability. Sometime last week it occurred to me that as I was speaking to various clients, they had all made a choice to allow me to serve them. That led me down a thought path of how did they come to that decision which leads me to write this post. If you are in business, at some point, you are going to need or want legal counsel. My mantra is “being proactive heightens creative protection.” I like to say that it’s the price of doing business. Now, will you need an attorney at every turn of your business? Likely, you will not. However, too many business owners avoid or ignore the need to engage in learning about legal issues, and often times they are put on the defensive, digging out of a situation rather than handling it quickly and moving on.
That being the case, here are four categories of factors that you can use to vet the legal expert you ask to be part of your creative dream team. Obviously, the more factors your attorney has the more you will have who you need to help you succeed in your business endeavors.
When you go to the doctor, you don’t go to the podiatrist if you have a heart problem, and you don’t go to the cardiologist when you have a foot problem. Similarly, you should be looking for an attorney that specializes in the area in which you seek assistance. For all you creatives out there, here is a list of the common issues that many of you will face. You may not deal with all of these issues, however I would venture to say all of you will deal with at least 3 of the 5 listed below.
Contracts. Someone who understands your business at the outset is what you will need- not only your business model, but the industry in which you operate. This will allow the attorney to prepare the standard contracts for your customers, clients and suppliers. It will also be necessary, at times, for the attorney to review contracts that are submitted by others for you to sign.
Business organization. Deciding how to organize your business—whether to incorporate, if so then what type of business entity will be most beneficial to you—will be knowledge that you will want your attorney to have. These decisions on how your business not only is organized, but also how it will be taxed. More on that in a minute.
Real estate. Lease for commercial properties like retail spaces or office can be complicated. What’s more, they are almost always drafted to benefit the landlord. Often because they are form contracts, many think, mistakenly, that these are not negotiable. That is wrong. An attorney experienced in this area can help walk through that negotiation regardless of whether you are the landlord or tenant.
Taxes. Filing your taxes is your accountant’s area of expertise, however your attorney should be able to help you register your business for state and federal tax identification numbers(EIN). Furthermore, the attorney should be able to advise you on some of the basic tax implications and consequences of transactions that you will be a part of on a regular basis.
Intellectual property. If you create, then it is extremely important that you find someone who specialized in intellectual property. After all that is the lifeblood of your business. At any given time, creative may be dealing with copyrights, trademarks, licenses, and sometimes patents and trade secrets. This area of the law is very tricky so say the least, so do not leave it to someone who does not specialize in this area.
Experience. This seems kind of obvious, but make sure that the attorney has experience handling the type of situation in which you are seeking guidance. Also find out how long the attorney has been practicing law. A lawyer who just passed the bar a few years ago is not the same as one who has been practicing for 20 years. Although both will be competent in their practice of law, the one who has practice longer will most likely have more experience in your industry handling legal matters. Are the attorneys in “good standing” with the bar where they are admitted to practice? This means that they have not had any disciplinary action taken against them because they were acting unethically. Many state bar websites have a place that this information can be looked up.
Clients. The attorney you choose should be familiar with the legal environment in which you operate. That means they should understand the issues that you will be facing and be able to point those out. A quick and easy way to get an idea of whether the attorney is keeping up with your industry is to ask what business or professional publications they read. What conferences do they attend? Look at their social media. Who do they “like” or “follow?” This is not dispositive, but it will give you a glimpse into whether they are tuned into your world.
A Teacher. Does your attorney take the time to teach you and educate you on the issues you are facing? The attorney should tell you what law applies and explain how this is relevant to your situation. These explanations should be in human terms not legalese.
A Worker. Is the attorney that you are dealing with the one who will actually be handling your case? It is important to know who that person is. Obviously, if you are dealing with a solo practitioner then they better be handling your case. However, in larger firms, the attorney that you have the relationship with is not always the one who handles your matter. Make sure you are clear on that.
Communication. Communication with clients is one of the BIGGEST, if not the biggest complaints that clients have with attorneys. There are lots of reasons for this. You should make sure that the attorney’s communication is consistent and clear. If you do not understand something, don’t hesitate to ask. The attorney should be able to communicate the idea a different way until you understand.
Likeability. This is an intangible quality and a little hard to quantify. But here goes…There should be a rapport between you and you attorney. You are going to be dealing with them throughout the life of your business, which hopefully is a long one. So it’s important that you like them. Not liking someone leads to avoiding or not wanting to talk to that person. A sentiment of dread is not one you want to have when dealing with your attorney.
Trustworthiness. Along the same lines as likeability is trustworthiness. Do you trust this person? Do your trust their ethics? Do you trust their expertise? These should be yes answers before you hire the attorney.
Let’s face it. Most people avoid hiring an attorney because they just do not want to spend the money. And I get it. It’s not just a few dollars, typically. Here are a few of the ways attorneys will bill their clients.
Hourly. Pretty easy to understand. The attorney keeps track of the time they spend on your case and then you get a bill. The problem with this is if you do not understand that every phone call, email, communication, document
drafted…everything may be counted, and then you get a bill at the end of the month.
Flat fee. Many attorneys use this method (including myself). This is just what its name says. If you want a certain task done you pay a specified amount. This is used situations like contract review, filing intellectual property applications, real estate closings and filing incorporation documents, just to name some of the more common matters.
Monthly retainer. This can be a monthly fee for legal matters that you anticipate will come up regularly each month.
Contingent fee. This is reserved for litigation matters. The lawyers fee is contingent on a successful outcome in the case. If the attorney is successful, then their fee could be 25% to 40% of the client’s proceeds. If unsuccessful, then the attorney will only bill, out of pocket expenses.
Partial contingency. Some attorneys bill at a higher rate if the attorney successfully negotiates a deal or settlement that save the client more money.
Phew! I know this was a little longer than usual, but hopefully, this information will equip you to make the best choice about seeking legal advice in the future. Remember, when meeting with your attorney, be prepared. Have all the necessary paperwork in front of you, documents, photos, you name it. If the attorney has asked you to send over certain documents before your meeting do so at soon as you can, so the attorney can prepare. Lastly, communicate with your attorney on a regular basis. This can ensure that you are on top of all your current legal matters and anticipating anything that may be coming down the road.
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