The Lawyer’s Role in Advising Businesses and Entrepreneurs
The Lawyer’s Role in Advising Businesses and Entrepreneurs.
We represent businesses and entrepreneurs in a multitude of different matters, including corporate setups and formations, contract negotiations and drafting, joint venture and business mergers and transactions, avoiding and defending overtime and wage claims, and a variety of other matters. We also act as affordable in-house counsel for smaller companies that don’t need full time services but do need the ability to get priority attention.
In all of these roles, our clients are surprised that our approach is different from many other lawyers. A business that invests in evaluating and assessing risks before taking action is in a far better position to anticipate and respond to contingencies down the road. A “look before you leap” approach saves business resources and money down the road. An ounce of prevention is worth a pound of cure, and advising businesses is no exception.
Businesses seek to avoid risk. We hear from our clients that lawyers are nay-sayers and want to be decision makers in the client’s business. They feel this over-steps the boundaries business clients want from their attorneys. We believe that our role as lawyers is, instead, to identify and assess levels of risk for our clients. How much risk a business or entrepreneur is willing to accept in moving forward is a business decision, not a legal decision.
We look for ways to accomplish the goals and objectives of our business clients, while assessing varying risks and contingencies for each possible path that can be taken forward. In knowing what may lie ahead, and where pitfalls are, businesses can make good, informed decisions. They can plan for contingencies before they arise, and in this way, be prepared to work to eliminate them quickly and with far less resources than would be required for unexpected liabilities.
Risk cannot be eliminated completely. Business leaders and entrepreneurs frequently tell us they want to move forward with a project and want to eliminate all risk. For example, let’s say one of our clients is creating a new position within the company, and wants this person to be an independent contractor. The client wants an independent contractor agreement to ensure there are no wage/overtime claims down the road. Legally, whether the person in this position will qualify as employee or independent contractor status is subject to a multitude of factors under the Federal Fair Labors Standards Act (FLSA), and other laws, none of which are by themselves dispositive.
An independent contractor agreement, by itself, may not provide the client with an acceptable level of risk in moving forward with making the new hire an independent contractor. If the client desires to know what else can be done to enhance the likelihood this person would qualify for independent contractor status, we may suggest the client could refine or enhance the position’s responsibilities and its job description to better accomplish the client’s goals. We would work with the client so the client is in a position to understand the factors that go into evaluation of independent contractor status. The client would understand which factors are met by the current position, and whether the position’s duties should be refined. Ultimately the client will be in a position to decide how it wants to proceed, understanding risks and options available.
Or, a client may present us with a proposed lease for some new space the client is looking to acquire. The client wants to know if the lease is acceptable to sign. Every lease agreement is different, and places obligations and duties upon both the landlord and the tenant. Whether it is acceptable is a business decision the client makes once it understands the risks and contingencies the lease contains. It may be acceptable to the client as is, or it may need some negotiation of the terms. Whether to accept the lease, or negotiate the lease, is the client’s decision once it understands the obligations and duties the current lease imposes.
Lawyers serve and assist business leaders and entrepreneurs. Decisions are left to the client, and lawyers that know their role and understand their client’s needs can be valuable assets, saving the business substantial resources and funds over the long term. Business clients generally tend not look to lawyers to be decision makers, business partners, or business advisers. They look to lawyers to assess and advise regarding risk and possible paths to accomplish the business’ goals.
I often tell my business clients that I am not the President, only the general. I present the client with possibilities and options to accomplish the client’s goals, and the risks and benefits of each. The client is the President and makes the executive decisions. We are honored to serve.
Search Our Free Legal Tips
What We’re Talking About (click on any topic for more tips)
Do you have questions about this topic or about other legal issues? We’d be happy to help. Schedule your consultation online now, and we'll talk with you about your concerns. You can also check out our business law pages and our family law pages for more information about the firm’s services.
Patric McCallum is a principal attorney with Drew & McCallum. He focuses his practice on family and business law, helping business leaders and Texas families with their legal challenges and needs. He brings a wealth of trial experience and industry knowledge to every matter he handles.