lawyers – Segal Coaching LLC

Lawyers’ Fees Be Damned. Why Can’t I Just Use LegalZoom?

At some point, just about every lawyer is asked this question by a client or friend. Why do I need to pay lawyers’ fees to create my LLC, file my trademark, draft my will, etc.? I like to keep things simple. Why can’t I just use LegalZoom or another self-service documentation provider?

[Note: This post was written while I was a practicing attorney running a diverse solo law practice, and it is one of a small number of “legacy posts” that I have retained on the site. When published, this was one of my most popular posts. Since April 2015, I have been working as an executive coach and writer, and I am not currently available for legal engagements.]

Well, the short answer is – you can. You can get a short, generic form agreement or filing from a service provider (with or without minimal “attorney review”), which may look and feel like a helpful, valid and comprehensive document until some dispute arises. You can also put your own roof on your house with the advice of a book or YouTube video, or from a kit, which may look and feel just fine until water starts to leak in….

Take a multi-member LLC agreement, for example. What are some of the things that can go wrong with a sparsely-drafted, generic agreement? I recently checked out the standard form of operating agreement from one of these services (not LegalZoom in this case, but a competitor with similar services). It allowed me to create a PDF copy (not Word, so I could not make additional changes) of a multi-member LLC agreement, with the help of prompts included as part of the program. Here are only some of the problems I observed in the program and language of the document, aside from what else could be added or improved:

1) Initial capital contributions are included but there is no language about what happens if (a) a member fails to contribute or (b) additional contributions are required or desired over time. These contributions may be needed to keep the company solvent, pay debts or ensure adequate capitalization (so limited liability is respected by the courts), or desired to expand the business, but under the agreement there is no mechanism to encourage or require them.

2) The agreement provides for profit allocations four times a year, with no discretion by the manager or a vote of the members. What if the proposed distribution would render the company insolvent? Should the members ignore or amend the LLC agreement at that point or call their lawyers to sort it out?

3) The agreement also provides that the members will receive enough funds to cover their income taxes when profits are allocated. Like the above, it sounds good, but what if there is not enough cash to do it (e.g., in the case of a large property distribution)? Should there be, for example, an exception in some cases? The program not only does not allow the option, it fails to clarify or even present the issues.

4) The agreement provides that “members … keep accurate books and records”. Have you ever heard of proper accounting by multiple individuals, none of whom has ultimate responsibility for it? Same for the tax filings. Have fun with that one.

5) The program automatically grants all members authority to sign checks from the LLC’s account. Does that sound like a good idea? Well, it depends, but in many cases it is better to have only one or two people handling the company purse.

6) Any member can withdraw at any time. The program did not offer an option that would require the member to provide any notice of withdrawal (so that, for example, the others could get funds together to buy him/her out).

7) The program also plugged in (without verification or options) that the members agree to hire an outside firm to assess the value of a withdrawing member’s shares. How would you, if you were trying to administer this agreement, find the right person to do that? How much would it cost? Is one opinion enough and what qualifications must the firm have? Again, if you are not working with a lawyer, you may not know if there are other valuation options and/or how to craft careful language to avoid disputes.

8) The agreement also provides that if the withdrawing member is not bought out by the others (collectively or individually) within 60 days, the LLC will be dissolved. A smart and devious LLC member could use this provision to force the hand of the other members, especially if the others are cash-poor, with threat of dissolution simply by threatening to withdraw.

9) There are no options – only standard language – regarding what happens a member dies or becomes incompetent. In that case, the interest goes to the heir who would have “all of the rights of an assignee of the member’s interest”. (It did not state “and all of the obligations”, which is a critical flaw.) This means that if a child, spouse, parent or other individual is an heir, the other members are stuck with him or her. Even if the new member has no idea how to run the business, is a pain in the neck, etc. Of course, the members could dissolve the LLC by majority vote and create a new one (with additional cost, heartburn, potential tax consequences, loss of goodwill in the name, potential breach of leases and other long-term contracts, etc.) Or they could kick out or buy out the new assignee/heir if the agreement included provisions to do so, which this one did not.

10) Under the standard language – which could not be changed in this program – all amendments to the agreement require unanimous written consent of the members. Depending on the number of members and their commonality or diversity of interests, this may or may not be recommended. Also, if unanimous consent is needed for every single change, one member can always stalemate or simply not participate in the amendment, holding the others hostage.

11) The so-called “required mediation” language is very poorly drafted and will likely be misunderstood or the source of bitter disagreements, if ever invoked. For example, the agreement says that “all members agree to enter into mediation before filing suit” yet also provides that “if any member doesn’t attend the mediation, the members are free to file suit”. Changing the language to read “the members (other than the member who did not attend the mediation) are free to file suit” would be just a start at improving the provision.

12) Did I fail to mention that, upon initially selecting an LLC agreement, you are not given a warning or alert from the program that you should check with your accountant or otherwise to determine whether an LLC is even appropriate and most efficient in the first place? If it is not, how much money and time have you saved?

If you are starting a multi-member LLC in any jurisdiction, I strongly urge you to consult with a business attorney and have a properly drafted LLC operating agreement to clearly spell out the rights and obligations of the parties. (I would offer a similar recommendation for other important legal documents.) Any money and time you spend on the “front end” getting it right will likely be money and time you save on the “back end” if the relationship between you and your fellow LLC members sours or if there are disagreements about what a poorly-worded contract actually means. (Oh, and at that point, can you imagine who will want to pay the legal fees to resolve your differences?) As is often said colloquially, marriage and business relationships are often much easier to get into than to live with or get out of. Don’t be the one caught holding the bag.

None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation.

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The Effectiveness of a Non-Compete that is “Subject” to an Employment Agreement: Why Legalese Isn’t Always a Waste of Time

Imagine, as I was asked recently, that you were an ex-employee of a company and attempting to determine whether you would prevail in a certain lawsuit. The situation involves a non-competition agreement (non-compete) you signed with a company, and you do not believe you should be bound by it. The company is suing you to enforce it. The non-compete says it is “subject to an employment agreement to be completed within 30 days.” The employment agreement, in fact, was never signed.

Is the non-compete binding? In other words, is the enforceability of the non-compete subject to the existence of an executed employment agreement or are the provisions simply subject to contrary language in an employment agreement, if completed and signed within the 30-day period? Obviously, these are two conflicting interpretations of the same language, and either could be valid. A separate question would arise if an employment agreement was in fact executed, but it was done so more than 30 days after the employment agreement.

At the outset, there are many preliminary questions to ask before considering the potential outcome of the case, including the following:

– In which jurisdiction was the agreement signed, and are non-competition agreements binding in the jurisdiction?

– Was there sufficient consideration to create an enforceable agreement?

– Is the agreement otherwise enforceable as drafted?

– Does any other language in the agreement itself contradict the language above? For example, is there an “integration” clause that says the agreement contains the entire understanding of the parties with respect to the subject matter of the agreement?

– What interest is the company trying to protect (e.g., confidential information, competing employment, customer lists or another restriction)

– In what circumstance did this arise, i.e., were you fired or did you leave voluntarily?

– Have other cases been decided in the relevant court(s) that deal with the same or a similar point?

– Do we know anything else about the intent of the parties (you and the company) when the non-compete was signed?

– Do other employees have non-competes with the company and are these generally enforced if violated? Do you know (or can you find out) if they contain similar language?

The questions above and others would help determine your likelihood of prevailing in the lawsuit. Assuming the plain language of the agreement and the limited facts above, I believe you would have a strong argument that your non-compete is not an enforceable agreement, because the formation of the contract was subject to a condition that was never fulfilled, i.e., the execution of an employment agreement within 30 days. The company would counter that you were employed nonetheless, and that “subject to” language is therefore superfluous.

If this case were actually at trial, you would need to consult further with a competent attorney to determine what goals the company had in bringing the lawsuit against you and what strategy should be employed to attempt to diffuse, fight or settle the suit.

Of course, there is another crucial lesson to take away from the above scenario. When you draft a contract, you have to get the language right, and you have to do what you say you’ll do. In other words, good drafting and attentive follow-up, by you and/or your lawyer, are essential.

Lawyers often get a bad rap for focusing on “legalese” and “fine points”. However, thousands and sometimes millions of dollars are spent trying to interpret what people meant when they wrote something, and which party has the better argument that its interpretation of a clause is the correct one. While lawyers cannot foresee every situation that may arise and how to draft a “bulletproof” agreement that will withstand any dispute, experienced ones can steer you out of circumstances in which off-the-shelf or borrowed contract language turns out to be penny wise and pound foolish. Don’t assume that language you found on the Internet or that “worked” for (or was never tested by) your brother-in-law’s business in another state five years ago will work for you today. Even language recommended by your attorney to use with a previous employer may not fit your current employment arrangement, since the circumstances may be different

Finally, if your lawyer was paying careful attention when the above (hypothetical) non-compete was drafted, you would not be in this scenario. The non-compete would have specified whether a signed employment agreement was a condition precedent to an enforceable non-compete or simply governed in the case of conflicting provisions. In addition, the employment agreement referenced would have been signed and kept on file, or the non-compete would have been amended to delete or change the reference if the employment agreement was not signed in the requisite time period.

None of the information posted on this site constitutes legal advice or forms an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

Tag: lawyers

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Lawyers’ Fees Be Damned. Why Can’t I Just Use LegalZoom?

The Effectiveness of a Non-Compete that is “Subject” to an Employment Agreement: Why Legalese Isn’t Always a Waste of Time

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