The answer, (a) or (b), depends on who you ask. In Shakespeare's Henry VI, Part 2, a conspirator - imagining a utopian future once his faction comes to power - suggests, "The first thing we do, let's kill all the lawyers." The line was a winner with Elizabethan audiences.
If you ask Ellen Rozen writing in The New York Times Business Section, the answer is (a). Rozen's article makes a succinct case for putting the retention of counsel at the top of a new business owner's to-do list:
Step 1 in Starting a Small Business: Hire a Lawyer
When do you really need a lawyer? Despite the proliferation of both self-help books and Internet advice, when starting a business even the most sophisticated of businesspeople find ... that they need an individual lawyer to guide them through the most basic of decisions as well as the more complicated ones, like financing and property issues.
....
[T]he founders should consider the structure of the business — corporation or partnership. The structure chosen may depend on whether the entrepreneur expects to have outside investors in addition to friends and family members, and whether the client needs to limit liability while having the tax benefits of the gains and losses from the business, Mr. Gersz said.
Additionally, an entrepreneur should also consider whether there are key contracts needed to conduct business. Those ... can range from an agreement with a co-owner, a sales representative or an outsider, like a vendor or important client.
The business owner also should think about any intellectual property assets that will be used by the new company. At a minimum, product or company names should be researched online first, even though a lawyer should ultimately perform a trademark search. The owner must also think about how to protect other assets — designs or processes, for example — when starting up. While it may be simpler to contribute the assets to the business, Mr. Walsh said that licensing them to the business could be a better option, because “you can maintain some control over use of the invention.”
Two other related issues that most entrepreneurs overlook are exit strategies and succession.
My answer is a little different from Ms. Rozen's. Over the years I have found that new business owners' most immediate and costly mistakes arise from inadequate accounting and financial controls, so for a first priority I vote for retaining an accountant and bookkeeper to set up and manage your accounting system. Once that's done, or as your accounting is being organized, then hire (not kill) the lawyer, for all the reasons Ms. Rozen suggests.
by Tom Makeig, a lawyer who serves entrepreneurs
About this blog
- Tom Makeig
- Thomas H. Makeig, with offices in Fairfield, Iowa, is a 1981 alumnus of New York University School of Law and is admitted to the practice of law in Iowa and New York. www.makeiglaw.com. This blog does not offer legal advice, which requires confidential personal communication with a lawyer. NOTICE TO THE PUBLIC: The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Showing posts with label general counsel. Show all posts
Showing posts with label general counsel. Show all posts
Wednesday, October 7, 2009
Thursday, August 27, 2009
Appoint a general counsel
Even the smallest business is well advised to appoint a general counsel. Don't employ him or her in-house: overkill! Just form a relationship with a business lawyer, whom you keep informed about the plans and developments in your business. If a specialist is needed - e.g., tax, patents, government contracting - get your lawyer's input about whom to use or inform your lawyer whom you have appointed to give you that advice. This way, your business lawyer can coordinate their efforts to maximize effectiveness and minimize expense.
A good business lawyer knows how to (1) spot an issue important to your business that requires specialist advice, (2) frame the right input to and questions for the specialist using effective lawyer shorthand and (3) interpret the specialist's advice in the context of a thorough knowledge of your business and objectives. In this way the business lawyer, functioning as your general counsel, can achieve best results and maximum protection for you at minimum expense. By all means participate in conversations and be copied on correspondence between your business lawyer and the specialist: it's educational for you and it can save you money, because in the end, no one knows your business better than you.
Labels:
general counsel,
legal specialist,
patent,
patent lawyer,
tax,
tax advisor,
tax lawyer
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