As a new business owner, you know you need legal help. From your corporate entity to contracts to employment matters, there are a lot of things going on.
But we want to help take some of the stress out of things. That’s why we are putting together this guide to working with a business lawyer for the first time. And point out where Springboard Legal is different from other business attorneys out there.
What’s the Difference between an Attorney and Lawyer?
In the United States, none. In fact, we use the terms attorney and lawyer interchangeably.
Sometimes we use attorney, sometimes we use lawyer. All depends on what sounds right to use. Like “lawyers” and “law firms” go together so you’ll probably see us talk about lawyers being part of a law firm more than attorneys being part of a law firm. But it’s just a weird nuance thing.
In some other jurisdictions, like say England, there is a much clearer divide between “solicitors” and “barristers.” But here, lawyers = attorneys = lawyers.
We are all licensed to practice law in at least one jurisdiction. We can advise clients on transactional matters out of court, and we can represent clients in court, at least in the jurisdictions where we are licensed.
Every once in awhile, there will be a social media debate on the differences. There are none. If you want legal advice that is protected by the attorney-client privilege, you want someone that is a licensed to practice law. Literally, that’s it.
What Does the Attorney-Client Privilege Mean?
You hear the phrase “Attorney-Client Privilege” or “That’s Privileged” thrown about a lot. Especially in movies and other popular media.
In a nutshell (and way oversimplified), a conversation is “privileged” if it is between two or more parties that have a special relationship where the courts and public policy have said that it does not need to be disclosed if someone else asks about it.
In the context of working with an attorney, your conversations are privileged. That means that your attorney will not be forced to disclose what you tell them absent some really strong reasons – like you threaten to harm yourself or others or your plans of future criminal conduct. (Kimberly says she doesn’t look good in orange and she’s not going to jail for you, so please do not involve her in future criminal conduct.)
But if you are being sued or suing someone else or even seeking legal advice on a transactional matter, it means that you can freely tell your attorney information and they won’t disclose it without your permission. So you can tell them the good things and the bad things.
You won’t be able to hide the facts themselves from disclosure. But your attorney won’t be forced to testify about them. And your emails to your attorney discussing them won’t be used either.
Other common privileges include spousal privilege, limited doctor-patient privilege, clergy privilege, and sometimes even a reporter’s privilege not to disclose sources. These may not be as broad as the attorney-client privilege or other limitations, so still wise to be careful what you tell people.
What’s the Work-Product Doctrine?
Similar to the attorney-client privilege which generally protects discussions, your attorney is going to have files for your cases or matters. In those files, we will include things like memos or case strategy.
We may also do some investigations on our own, write down mental impressions of potential witnesses, and even produce drafts of legal pleadings that never get used.
Under the attorney work-product doctrine, this information is protected. So similarly to the conversations you have with your attorney, the work-product doctrine makes sure that the subsequent work the builds your case or defense is protected from disclosure, even if these materials were never made available to you as a client.
Now, this protection is not quite as strong as the attorney-client privilege. There are some situations where say an attorney interviews a witness where that work-product must be turned over to the other side. But those are limited and the courts really hate ordering this.
When Does the Attorney-Client Privilege Start?
Generally, the attorney-client privilege starts when the client seeks legal advice. This is not for general business advice.
So here at Springboard Legal, where we provide a variety of services, attorney-client privilege would only apply to those clients or potential clients seeking legal advice, not our Fractional CFO, coaching, or other services.
It does apply to those seeking legal advice, even if you don’t end up hiring the lawyer. For example, let’s say you are interviewing lawyers that you want to hire – but remember that they are also interviewing you as a potential client. Either one of us may decide that this isn’t the right fit. Maybe it’s a type of case we don’t handle or it is outside our jurisdiction. You decide you don’t like our style or our rates.
Regardless of the reason, those conversations that you had with us during that interview process are still protected by the attorney-client privilege. Any work we do to decide whether to take you on as a client or not are still protected by the work-product doctrine.
What Does It Mean for an Attorney to Be Conflicted Out?
Lawyers cannot represent both sides in a matter. Let’s take a business partnership — in a conflict between partners, a lawyer can only represent one party in the dispute. Because we owe a duty of loyalty to our client and we cannot split the baby and be loyal to both sides.
In some cases, there may be a mutual interest where one lawyer or firm can represent multiple parties. Let’s say that a company and the owner are being sued in the same lawsuit on the same facts. In that situation, the company and the owner have the same interests and one lawyer can be loyal to both parties at the same time and represent both.
But perhaps in the situation of a non-compete, where the employee and the company are both being sued for breaching the employee’s non-compete with a prior employer, there could be a divergence. In these situations, the parties can waive the potential conflict. It’s not unusual in these cases that in later stages a second attorney will get involved.
But if two of our clients get in a dispute with each other, where we have privileged information about both sides that we cannot use against the other, we would be “conflicted out” of representing both parties.
What about Industry Competitors? Are you conflicted out?
At Springboard Legal, like many other law firms, we have developed a deep specialty in certain industries or types of companies. As a result, we get a lot of clients that are actually competitors of each other.
It’s probably part of the reason you are hiring us, because we know your industry and the problems and solutions you face.
We are honest with you from the jump that it is likely that we will or have represented your competitors. This isn’t a conflict unless they are in a direct dispute with you. And we will never use your privileged information against you.
What should I tell you at the beginning?
Whether you reach out to us through the website contact form or through phone or email, you should be cautious in what you tell us. We may already be representing another party and you seeking counsel won’t conflict us out of that.
You should give us a rough idea of what kind of dispute you have and maybe an idea of who the other party is. But don’t tell us the details until we ask for them.
A Note on Security
Remember that the website and email are less secure methods of communication than others.
While we have gone through steps to protect our website and email, there are still risks. If you have extremely sensitive information, definitely don’t send us anything through these methods.
Once you are setup as a client, we can provide secure portals for you to use to transmit sensitive data and documents. Plus, it’ll save our email systems since we all pay by the gigabyte. We can also use your services if you have preferred document sharing systems that have already been vetted by your IT department.
What are the Different Billing Models Attorneys Use?
There are four main billing models that attorneys use. Not all attorneys use all of them, but they are likely to use at least one. And there’s even a hybrid situation where we combine several to create another billing model.
Hourly Billing
This is what you’ve probably heard the most about. Lawyers that bill by the hour. Your bill is straight forward – the sum of all the number of hours times the rate that the lawyer bills during the time period.
Hourly billing is common in the industry. But we also know that it is scary for a lot of clients – you never know how much your bill is going to be each month since it all depends on how much time your lawyer spends on the matter. It makes it hard to budget, and you are worried about making payroll too.
On the law firm side, we tend to like this because we don’t know how long your case will take. The other party may be petty and throw a lot of unnecessary BS at us. Or there are hidden issues within your case that you didn’t disclose at the beginning.
Also, when it comes to a lot of our dealings with courts when we try to get the other side to pay our fees for you, they default to the billable hour. They will argue about the rate itself or how much time things took. If we are charging you a different way, it makes it more difficult to get the other side to pay for their bad behavior and BS.
Flat Fee
You are seeing more and more flat fee billing models in the practice of law today. This is really useful in things that both sides can predict how long or the value that you will receive.
Think about drafting an LLC operating agreement — we do a lot of those and generally know what it takes for us to cover our costs. Even when you have multiple partners that may argue over certain sections or particulars.
Or certain contracts, whether drafting a new one or reviewing an existing one.
With a flat fee arrangement, we will quote you an amount at the beginning of the project. And that’s what you’ll pay. No matter how long it takes. This provides certainty for both of us when it comes to budgeting. And no one is concerned about entering time, so this lawyer is happy.
Are you a law firm trying to figure out flat fee or subscription billing? Check out our Law Firm Fractional CFO services where we can help you establish a flat fee or subscription billing practice.
Subscription Fees
Lawyer subscription fees are similar to flat fees, but for longer ongoing commitments. You have a set amount your pay for your package every single month. That covers certain legal services, but not potentially everything.
Sometimes there will be legal services outside the subscription package. For example, if you decide to purchase another company – that is typically not going to be included in your package since it is not something in the ordinary course of business (unless your a PE firm, then it might be included but we will specifically negotiate your package).
This is how we like to bill our Fractional General Counsel services. We like to also setup automatic payment through ACH or credit cards, depending on the size of your package so that neither one of us have to worry about the billing processes and can focus on doing business.
Contingency Fee Arrangements
Some lawyers may work on contingency, meaning they get paid at the end of the case, only if they win. This is common among personal injury attorneys.
But it is also possible with certain business attorneys. As an example, I’ve seen business attorneys that enforce copyright claims be paid on contingency based on what they collect from copyright infringers.
Success Fees
A discussion on attorney billing fees, particularly for business attorneys, cannot leave out success fees. These are often a combination of flat or hourly billing and a contingency fee.
In this scenario, the attorney is paid a certain amount, but if they win, they get a “success fee.” You may see this in something like a merger and acquisition, where legal counsel will get a bonus if the deal is completed. You may remember hearing about Elon Musk complaining about the success fee paid to the seller’s law firm when he bought Twitter.
Or in a situation where you have major litigation against another party. You may see these in patent infringement lawsuits on both sides – where the winning lawyers will get a bonus.
Springboard Legal Lawyer Billing Arrangements
Our preference is to build long-term relationships with our business clients. Thus, we love the subscription billing model.
But for short-term projects where you are not yet ready to hire us on as a Fractional General Counsel, we may offer you a flat fee or hourly engagement. But we really prefer to not have to keep time as that is unnecessary administrative overhead.
No matter which billing arrangement you choose, it will be included in our engagement letter. Once the engagement letter is signed, then you can tell someone that they should “talk to my attorney.”
What is an Engagement Letter?
Wait, what is an engagement letter that you just spoke of? That is our official agreement between you as the client and us as the attorney that says “yes, I’ll be your attorney for this matter and price.” It has all the details about how our relationship is to work – and what it covers.
It is essential that you read this agreement. It is a legally binding agreement like any other one. In fact, you may even get a second opinion on it and are encouraged to do so. At the point where we are negotiating the engagement letter, we are technically on opposite sides of the table, so you should protect your own interests.
Are you looking at hiring another attorney? We will review those agreements for you too. In fact, as part of our Fractional General Counsel services, we often hire other attorneys for our clients in specialized fields, like patent, bankruptcy, or litigation.
What is a Fractional General Counsel?
Business attorneys come in many flavors. Fractional General Counsel is one of them.
Traditional law firms offer up legal services on discrete matters – you need an operating agreement, so they help you with that. Or you have a dispute over a contract that is in litigation, so they help you with that. Or here’s some employment law issues, so they help you with that.
But those law firms are often sending to you various lawyers all over the place. They never get to know you. So they then offer up Outside General Counsel. This is their way of offering a quasi-similar offering to what an in-house lawyer does. But still, you are often bouncing among different lawyers.
A Fractional General Counsel is even closer to what your full-time in-house lawyer offers. It is someone dedicated to your company, without the bouncing around.
We focus a lot more on strategy. Not just “can you advise on the terms of this contract?” but also “does this contract make sense for our future business strategy?” We want to make sure that the contract (or employment issue, or privacy policy) fits within your greater business strategy.
As a Fractional General Counsel, we also are generalists. Throw literally any business law issue at us and we will work on it to provide you a solution. If it is something outside of our wheelhouse, we will find specialized legal counsel to help you and even manage them.
This is great for startups and growing companies that don’t need a full-time lawyer on staff but want that higher level strategy and experience to help set you up for success at the next level. We consider it a success when you have to hire someone to be your full-time in-house general counsel.
What Kind of Questions Should I ask my Business Lawyer?
As a Fractional General Counsel for businesses, I cover a lot of different topics – from employment terminations to commercial contracts and can we get out of this contract? We work with your landlords (or tenants if you are the landlord) on leases. We handle questions like “is this trademarked?” or someone is saying we infringed on their copyright.
Really, there is no question you shouldn’t ask us. And prevention is so much cheaper than the cure. We’d rather you ask ahead of time, before you do something, so that we can guide you through the process of doing it right the first time.
It’s one of the reasons that I love the subscription models because you have us on call. You shouldn’t be afraid to ask questions because you aren’t running up a bill.
And the earlier we are made aware of a situation the more options we have to find a successful solution or outcome. Please, don’t DIY your legal issues because you may be closing off options that you don’t even know about (ChatGPT doesn’t know all, believe you me).
If it isn’t something that I know right off the top of my head, I can do some research and find you the answer. Or I’ll find you another attorney that can give you guidance.
What’s the Best Way to Contact Kimberly?
While there are tons of ways to contact Kimberly, the best way is through email or the website contact form. But don’t use these methods to send anything that is sensitive or protected by attorney-client privilege unless Kimberly instructs you to.
Once you have the engagement letter signed by both sides, you’ll also be given a link to schedule calls on Kimberly’s calendar. Current clients get the first priority on the calendar with the most availability. We do ask that when you schedule a call, you give us as many details ahead of time to prepare for the call – copies of contracts or other pertinent documents, a topic of discussion, etc.
Ask More Questions
What other questions do you have? We love to help you out, so we can work better together.
In the words of Jerry Maguire, help me, help you.