23/2/2017 0 Comments
Too often these days entrepreneurs go into business with the wrong idea about how an attorney can help them and when to call them. It’s understandable why they make the mistake, you don’t call a plumber unless you have a pipe problem, nor do you call a fireman unless there is a fire. However, one shouldn’t think about their business attorney in such a fashion.
This is especially true for new business owners. Sure, it’s easy for all the other things you need to do to get a successful enterprise off the ground to seem like they are a much larger priority, but in reality, you need your attorney right from the get go. The key is that you need to plan ahead to avoid possible legal entanglements that may arise once your business has some real value going for it. This is why experienced business owners always seek the advice of an attorney before there is an issue, rather than after one. Let’s run down just a few of the key areas of business planning in which an attorney can help a new business owner succeed:
Though it’s not the first thing on a young business owner’s mind, the intangible assets of the business are vulnerable to theft and need to be protected before someone has reason to want to steal thm, i.e. when the business is just getting setup. This includes the logo, name, brand, distinctive products, services, etc. All of these can and should be protected by appropriate copyright laws. What’s more, proprietary systems and software, chips, and hull designs (just to name a few) should also be trademarked. What’s more, if you have a process, you may want to patent it – something an attorney can help you determine and apply for if you decide it’s something your business needs. With the right protection, you can ensure you keep your competitive advantage.
If your business is or intends to be a corporation, there is more to the game than just applying for and securing corporation status. To keep the liability protection the corporation provides, your business must follow strict guidelines. For example, there need to be regular meetings for shareholders, directors, and partners with elections, minutes, and more. If your business does not follow these guidelines (and they do change as new laws are passed), you may find you lose your status as a corporation and the protection that provides. Hiring an experienced business attorney who understand corporate governance and changing laws and can help you stay a step ahead of any issues that could possibly disqualify your corporate status is the best option.
In many cases, one of the largest assets a company has is the knowledge of its employees. In such a situation, it would be fool hardy to proceed without the proper employee agreements in place, including non-disclosure and non-compete agreements. Just think of what may arise if a relationship with an employ sours and such agreements are not in place. Clearly the risk is too large to take. Consulting a business attorney right now, or before you hire any employees can help protect you against this. Your business attorney can help build employee contracts that include these and other important protections for your business.
One of the biggest things that business owners fail to plan for when they are just starting out is their exit strategy. However, this is a big mistake. What if you are in a partnership or corporation when a principal or major shareholder leaves the company? What happens then? If you don’t know, this is an essential area to prepare for when everyone is getting along and there are no issues on the horizon. This is definitely one you don’t want to wait on or you risk legal entanglements as well as unnecessary financial burdens.
STILL HAVE QUESTIONS?
Beyond what I covered here, an experienced business attorney may have many other areas they can help you out with depending on your industry and specific nature of your business. Yoel Molina has spent years serving as small business attorney to countless small and medium sized businesses in Florida. If you own a business or are in the process of setting one up, the Law Offices of Yoel Molina are here to serve you as your business attorney team. Don’t hesitate, but call our offices today!
16/2/2017 0 Comments
If you are a business owner, it has happened or is going to happen to you. It’s just a fact of life, people in business occasionally have disputes with those they work and do business with. What’s more, if the dispute has any legal merit, you could find yourself on the wrong side of a lawsuit or spending countless hours and dollars arguing your case in the public eye, creating bad press for your business. What if there was an easier way to settle legal disputes in a binding way? There is, mediation.
Mediation is just one of many alternative dispute resolution services that a qualified and experienced small business attorney can offer.
THE NEED FOR MEDIATION
There can be all kinds of issues that arise that call for mediation. It could be a dispute with a former or current employee, a property issue with a neighboring business, an issue with your equipment or suppliers. Whatever it is, if you’ve tried to talk it out and it’s clear an agreement cannot be made, mediation is a safe, inexpensive, and private way to reach a legally binding settlement on the dispute.
So no matter if the dispute is with the city government, a vendor, or even between joint-owners, mediation is a viable option with a lot of benefits. Keep in mind that even if you think you have a sure-win case, there is no telling how much litigation will cost. What’s more, your personal reputation is at stake. Most small to medium sized businesses rely on their reputations within the relatively smaller communities they serve. Is it really worth exposing your good name to ensure you win the dispute? In most cases, the answer for small and medium business owners is no.
HOW MEDIATION WORKS
Mediation is one of the least formal types of legal dispute resolution. In it, both parties meet with a neutral third party (often a judge or attorney) mediates a negotiation. The goal of the meeting is to come to some form of an agreement that both parties accept. Both sides are allowed to give their view and offer input into the settlement the mediator will offer the parties. If successful, this mediation can prevent further litigation not just on the issue at hand but on perhaps issues on down the line by setting a strong precedent for being able to resolve disputes outside the court of law.
THE COST OF MEDIATION
In general, hiring an attorney or qualified legal representative to mediate will cost far less than hiring one to fight a litigation in a court of law. What’s more, even if the mediation session gets expensive because it drags on a long time, you can split the fee with the other party – something you both can benefit from to save costs. But in reality, a mediation process only lasts a fraction of the hundreds of courtroom hours that a true litigation can end up taking.
LOCATING A QUALIFIED MEDIATOR
As soon as you are in a business dispute that you can tell will not be able to be talked out without legal intervention, it’s time to suggest mediation. This is always a better step for both parties than going straight to litigation. Many county and city bar associations keep lists of those who actively offer mediation services, as does the internet.
One important note: if your business belongs to a local business organization like the Chamber of Commerce, check with them first for resources on mediation. What’s key is to find a mediator who understand small business needs as opposed to larger business who have different priorities.
THE END RESULT OF MEDIATION
If successful, the goal of mediation is to get a written agreement that both parties sign. That way it’s binding. Additionally, your mediation may end with a memorandum of the agreement. It’s important to keep in mind that although mediation is binding, you will not always be able to have it officially enforced through a court of law.
If the mediation doesn’t close successfully, you’ll still have shared and learned much about the core issues you and your opponent have in the conflict. What’s more, a failed mediation doesn’t prevent further litigation, so there is no risk in agreeing to meet.
So for small business owners looking for a quick, inexpensive, or private way to settle a legal dispute with a business partner, employee, customer, neighbor, vendor, etc., mediation remains a valuable tool.
STILL HAVE QUESTIONS?
If you are a small or medium sized business owner current involved in a dispute and you think you could benefit from mediation with a qualified and compassionate yet neutral third party, call the Law Offices of Yoel Molina today.
As anyone who owns a business knows – contracts are an indispensable tool to get things done and protect your business interests. However, if you don’t know anything about the laws that govern contracts, you may be doing more harm than good when you put pen to paper. Let’s talk through some of the basics of contracts and the law to make sure you have a good understanding of what’s at stake.
What Is a Contract?
This is basically a legally-enforceable agreement between parties (two or more) that obligates both parties to fulfill particular things as specified within the contract. By party, this can mean a person, country, company, corporation, etc. What you want to keep in mind is that two things are always implied when the word contract is used:
That there is an agreement made (something for something)
The agreement is legally enforceable
What Laws Pertain to Contracts?
One thing about contracts is that the laws that govern them are determined by the state where the agreement between the parties was made. There may actually be a couple of types of state laws that govern the contract as well – depending on what type it is (e.g. property lease, sale of goods). These two types of law are:
The Uniform Commercial Code or UCC: These laws govern contracts used for the sale of goods. The UCC is a standardized set of guidelines that oversee commercial transactions. While the code is not law itself, most states have adopted all or part of the code as law.
The Common Law: On all other business contracts, common law is what governs them. This includes all contracts like employment contracts, leases, etc. Each state has their own common law made from court decisions within the state over the years.
How is a Contract Created?
Any time an offer is made and accepted after a sufficient amount of “consideration,” a contract is legally valid. Let’s examine what these terms mean in the context of contracts:
An Offer: the terms of this offer must be clear and certain, and the party to whom such an offer is made must reasonably expect the offering party capable of the offer.
Acceptance: This is a clear expression from the party receiving the offer that they accept its terms and agree to it.
Consideration: There must be some gained and something obligated for all parties involved for the contract to hold. There must be an exchange of some kind of value.
What Happens when a Contract is “Breached?”
Anytime a dispute arises over a contract, one party may feel another party is failing to adhere to the terms of the contract they are obligated to adhere to. This is considered a breach and can result in legal action by the non-breaching party in an attempt to remedy the situation, which can happen in a number of different ways depending on the type of contract and breach.
How Are Contracts Enforceable Under the Law?
In the event that there is a breach of contract, the most common way to attempt to remedy the situation is to use a lawsuit through the court system. On breaches that result in losses under $7,500, this can be done in small claims court. However, there are other options for dispute resolution before turning to out and out litigation. These alternatives are mediation and arbitration.
Still Have Questions?
There’s a lot to keep in mind with contracts and your state’s common law. If you have any questions not covered here, be sure to give the Law Offices of Yoel Molina a call. We’re standing by and ready to help with the knowledge, experience, and dedication your small business deserves!
All over the country and state businesses start and fail every day. Small business owners have a lot on their mind, what with overhead, startup costs, retaining customers, ordering inventory, etc. It’s easy to understand why the prospect of hiring a business attorney sounds like a needless and unwarranted expense if your business is small, or new, or both. The problem with this is that most business owners are experts in their chosen trade, not in business law. So when a crisis arises, such businesses often go under because they haven’t prepared in such a way as to protect their business legally the way only experts in the law can.
THE BUSINESS ATTORNEY’S ROLE
A business attorney is simply an attorney who specializes in and understands the law and other issues surrounding the owning and operating of a business. Such attorney’s generally have experience in a variety of business needs such as trademarks, copyrights, tax issues, employment contracts, etc. Your specific business or industry may require even more from a business attorney depending on the risk involved with and scope of your enterprise.
The bottom line with your business attorney is they provide that ounce of prevention that is proverbially worth a pound of cure. They help you protect yourself from and avoid what could be devastating issues for your business and team. However, as money doesn’t grow on trees, I thought we’d talk about a few issues you might be able to handle on your own before getting your business attorney involved. A good business attorney for small business owners is one who understands the constraints of your budget and caters their services accordingly. You don’t want one who is constantly busy with larger corporate clients as they likely won’t have as much time to dedicate and are not focused on the needs and issues small business owners face.
WHAT YOU CAN TAKE CARE OF WITHOUT HAVING TO CALL YOUR ATTORNEY
Now, depending on your business and industry, some of these things you may need to trust to your attorney, but when cutting costs, consider some of the following as issues you could handle yourself. A good compromise is putting these together and having your attorney review them rather than hiring them to draft them for you:
Creating your business plan. Why not at least do the first draft on your own?
You can save some cash by filing for trademarks and copyrights online yourself. It’s far cheaper to simply consult with the attorney about your filing than have them take care of the whole process for you.
Take care of domain names on your own.
Find a template for your LLC or other operating agreement. Fill it out as much as you can before getting your attorney involved.
Consider applying for your Employer Identification Number on your own, also consider applying for any other trade-specific licenses and permits.
File your taxes on your own. You can have your attorney prepare them for you as a compromise.
Document your LLC meetings on your own.
Use templates for contracts and buy-sell agreements from a reputable online resource
As you can see, if you are willing to spend a little time, you can cutout part of the work for your attorney to reduce the amount of time for which you need to hire them. Clearly this list is not exhaustive, but it still gives several ideas to help you understand the best way to utilize your attorney on a small business budget.
ISSUES WHERE YOU ABSOLUTELY MUST RELY ON YOUR SMALL BUSINESS ATTORNEY
Now, unlike the issues we already discussed, there are going to come times when you absolutely want your attorney involved and should not proceed without them. This is typically the case in any situation where the issues are just overly complex, or where it would take too much of your own time, or where the liability is too high. The higher the risk, cost, or amount of time an issue is likely to incur, the greater the chance you should trust your attorney with it.
Anytime an employee (former or current) may sue your business for a case of discrimination or an issue with a hostile work environment.
Anytime you want to make special arrangements with your LLC (to ensure you stay compliant)
If you receive any sort of complaint from an official government agency or notification of a pending investigation against your business.
Anytime you enter into negotiations to buyout a competitor or sell your business.
Any issue involving the environment and your business. Even if you are only indirectly involved and were completely unaware of the impact.
Again, this list is just a sampling and cannot be considered complete. The key is to notice the complexity, heightened liability, and heavy demand on your time addressing these issues requires.
PREVENTION IS ALWAYS THE BEST MEDICINE
The bottom line is that the costs of hiring a business attorney will always be far, far, far less than the costs of having needed one and not hiring them. So yes, you must retain an attorney as a small business, and you should utilize their aide to identify and prevent possible catastrophes. At the end of the day, protecting the investment of your time and money is too important to try to save a few dollars.
Just consider how much more you’ll spend on an attorney defending you in a discrimination suit for asking a question you shouldn’t have in an interview – even if you settle out of court – than you would have spent on one to consult about such issues and learn not to ask that question in the first place.
STILL HAVE QUESTIONS?
Every business and business owner is different, but they all need protection. If you own a business or are starting one up and you have questions about how to best protect your business or need the aid of a qualified, experienced, and dedicated small business attorney, call The Law Offices of Yoel Molina today. Yoel has years of experiences helping countless business owners on all kinds of legal issues. He has the know-how, skill, and business acumen to help you protect your business.