Wednesday, October 6, 2010

We are a small business, and need a good attorney. How do we find one?

If you are a small business, you should concentrate on small business attorneys, ideally with experience in your specific business, as each business shall have its own set of legal and regulatory circumstances.

Hopefully, you will know one or more trustworthy small business persons in California in similar circumstances who can refer you to an attorney. If not, you must do some homework. On the Internet, you can Google search for an attorney in your area of interest in your area of concern in California , or you can use lawyer searching websites, such as

Then, check at (California State Bar) to determine the disciplinary status and other information for each attorney candidate. Once you have at least 3 qualified candidates, call each of them and explain your situation and listen to their feedback. Your instincts should determine the right attorney candidate from these calls. In close calls, ask to physically interview each without cost.

During your calls to attorney candidates, ask them if they have personal business experience in the area of your business. Ask them if they are a "general counsel" or a litigator, as litigators are many times unavailable, and usually have a different mindset, as discussed more fully below. If they are unfamiliar with the "general counsel" term, they are probably not a good candidate.

General counsel do not usually litigate and are there to advise and service you, when you need it. General counsel aim to keep you out of court. If you are unfortunate enough to need or defend litigation, your general counsel will refer you to the most appropriate litigation attorney or firm and thereafter monitor and manage the costs of litigation, which could otherwise spiral out of control.

Ideally, your general counsel will have sufficient prior litigation experience in order to do the foregoing effectively. Also, he or she will be able to draft contracts with an eye towards staying out of litigation or litigating in a friendly venue. For example, the existence (or lack thereof) of a contact clause providing for a prevailing party’s right to attorney fees can mean the difference between having (or not having) litigation.

In addition, a general counsel, rather than a litigator, is more likely to give you all the advice you want or need and then get out of the way so as not to frustrate your business goals. Business risk is your decision, not a lawyer’s. Once a transaction’s basic terms and conditions have been negotiated, a good general counsel will rapidly draft an industry standard agreement reasonably slanted to protect you in sensitive areas, as simply stated as safely possible, customized to your particular circumstances and risk tolerance levels, oftentimes for a fixed fee.

As Dan Harper, an acknowledged corporate counsel, so ably states, “It is very easy to just say ‘no’ when a controversial issue arises, this is easy because we can’t get into too much trouble by taking the ultra conservative approach. However, after so many ‘nos’, the company will soon go out of business because it won’t be able to sell anything."

"As in-house [general] counsel, we must always remember that we are here to serve the client, it exists to sell goods or services and to make money. It does not exist to provide gainful employment for attorneys. Hence, we must do what we can to further that mission, balance the risks against the benefits, including the mission of the company – making money and thereby keeping all of us employed.” Do Law Firm Lawyers Really Know What It's Like to Be an In-House Lawyer? Dan Harper, Corporate Counsel, 9/10/2010.

Armed with the foregoing, I hope you find the ideal attorney for your business in California.

Important Proviso: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney.

Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided through my firm’s website located at

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