Wednesday, August 2, 2017

The Brooklyn Made Show

The podcast interview that I did went live yesterday and it's always interesting to hear what you sound like when it is played back for you. The Brooklyn Made Show focuses on issues affecting real estate in New York and the host, Nate Pfaff, has already interviewed a variety of professionals to talk about various aspects of the market. A fellow law school alumni, Daniel Gershburg, was interviewed on an earlier podcast.

Nate and I had a good discussion about Brooklyn real estate and some of the other great things that make Brooklyn a great place to start a business.

Rather than attempt to summarize a recording, you can just as easily go to this link and listen for yourself:

Monday, July 24, 2017

Do I Need a Non-Compete Agreement for my Employees

When helping clients grow their business, one of the questions that always seems to come up is whether the business needs to have a "non-compete" provision in their employment agreements with the employees. If you read the news, the common stories these days are of employees suing their old companies to invalidate the non-compete agreements. 

Employees who have left the company will often argue that the non-compete provisions are too broad and that their new employment does not compete with their old employer. The facts of each case are different, but if you end up in front of a judge, it will be a factual analysis to see if the employee's new position is in competition with your business. 

The enforceability of a non-compete agreement is usually created by state law, but there are a variety of strategies that seem to apply across the board when drafting a non-compete:
  • Examine the employment agreement generally to ensure that it is enforceable - a court likely will not enforce a non-compete that is contained in a generally unenforceable agreement.
  • Make sure the non-compete is not too "broad" and is limited in time, geographic and activity scope.
As a general rule, courts tend to disfavor non-compete agreements that are poorly drafted and would inhibit the employee from finding gainful employment elsewhere. So if you truly need to protect your business' intellectual property, it would be wise to consult with an attorney to ensure that any non-compete provisions in your contracts are properly drafted and would be enforceable in the state that governs your contract.

Friday, July 21, 2017

How Can A Lawyer Help Me Start My Business

The summer is a good time to start thinking about starting your own business, although unless it is a seasonal business, any time is a good time to start your own business. July has brought a variety of entrepreneurs to my office to assist them with starting up their companies. Usually they are referred by their friends or other small business owners who they know are represented by me. The first question is almost always:

How can a lawyer help me start my business?

That's a general question that could be answered over hours of discussion. But I try to summarize it best for the folks who come to see me:
  • Incorporation: Most people have heard all the commercials on tv and the radio and understand the need to incorporate their business. A lawyer can help you put the proper paperwork together and get it filed with the appropriate state.
  • Corporate Form: Depending on what state you will be incorporating in, your lawyer can help you choose what corporate form (i.e. an LLC, a Partnership, a Sole Proprietorship) would be best for your business. It's also important to talk to your accountant (or find an accountant to talk to) to work in conjunction with your lawyer to ensure that you are utilizing the best corporate form for your tax purposes.
  • Operating Agreement: Especially if you are going to be opening a business with a partner or partners, you'll want to make sure you have some type of agreement in place to detail out your working arrangements and how to deal with conflicts in making decisions. This is probably the most important document that a lawyer can prepare for you when starting a business.
  • Copyright/Trademark Searches and Registration: When selecting the name and preparing promotional materials for your new business, you'll need to make sure you aren't infringing on anyone else's trademarks or copyrights. And if you aren't, then make sure you get your intellectual property copyrighted and trademarked as appropriate.
  • Employment Agreements: If you are going to be hiring employees, you'll want to make sure that your employment agreements comply with the law and are going to be upheld in case there is a dispute between you and an employee down the road.
  • Vendor/Customer Agreements: If you are going to be selling goods or services to clients where agreements are necessary for terms of delivery and payment, your lawyer should be involved to make sure that you have the appropriate language to make sure you are getting paid and are protected in the case of any dispute.
These are just a few of the ways that a lawyer can help you when you start your business. In addition, my clients also value that I have started my own business and understand the stresses and responsibilities of what it takes and we can all take as entrepreneurs about ideas for how to grow their businesses.

When selecting an attorney to assist you with starting your business, as with any other matter, the most important factor in my opinion is to ensure that you have a strong working relationship with a lawyer you respect and trust.

Monday, July 17, 2017

Preparing a Separation Agreement in Personal Matters

When it comes to the people I represent in personal matters, one of the most important documents that we draft is a settlement agreement of the issues. Sometimes it is a family law matter, other times it's a simple dispute between friends and sometimes it's even a dispute amongst family members (it can be as trivial as the proper dividing up of their childhood baseball card collection).

Preparing these documents can be a very time consuming process. Clients will often come to my office envisioning a 2 page document, a "simple" contract for _____, and end up leaving with a 15+ page fully executed and notarized agreement covering all of the issues that exist between the parties.

To most people, the simple agreement sounds good in principle, but falls apart in practice when you realize the variety of issues that are truly present. You can have issues of:
  • Tax - what are the tax implications if money or assets are being transferred?
  • Agency - who has the power to actually sign the agreement?
  • Privacy - what information in the agreement can even ben disclosed to someone else?
  • Mediation - if there is a dispute, do the parties sue each other or go to mediation?
  • Jurisdiction - what law governs if there is a dispute over the agreement?
These five items are by no means exhaustive, and they can change depending on what your agreement covers. But in all agreements, it is a good idea to take your time and think about what you are agreeing to and what you are signing.

Last week, a nice gentleman stopped by my Brooklyn office for a short chat and to review with him an agreement that he was given and told to sign within 24 hours, or there would be no agreement at all. He was a little concerned at the short timing of the agreement and when we looked at it, there was good reason to be worried. There were many issues that were being "settled" against him and when they were all considered, it wasn't a good deal at all. Of course, the other party, being very upset that he had taken the agreement to an attorney, told the gentleman that they no longer had a deal (but they didn't have a deal in the first place!) and he would be hearing from his lawyer.

One week later and we still haven't heard from that lawyer...

The moral of the story is that if someone tries to shove an agreement in front of you and have you sign it without time to read and consider it, it might not be a good agreement for you to sign.

Friday, July 14, 2017

Frustrating Airline Customer Service (A Non-Estate Planning Post for Once)

The airport (JFK in this instance) is a strange place in the middle of the night. There is almost a total disconnect with all of the planes preparing to depart while the vendors in the gate areas are all closing down for the night. Earlier in the evening, there was more bustle around the whole area, with everyone eagerly anticipating their flights. But at some point, the vibe in the terminal changes over because the late night flights are either
  • Flights that should have left hours ago (mine...)
  • Flights that are scheduled to leave in the middle of the night
For those in the second group, they knew they were leaving in the middle of the night and clearly planned their trip and were ready for a late evening at the airport.

For those in the first group like me, we've spent the last 6 hours at the airport just hoping to get on our plane and get up in the air. In a strange way, it feels like we're in a television commercial where the subjects are put through this waiting game with the promise of a smiling family at home when they arrive after a long journey.

As Murphy's Law would have it, mere minutes after getting through the security checkpoint, while settling in with my book (Give and Take), I checked my phone and realized that my 9:00 flight was actually scheduled to depart at 12:10. Not the best way to begin the trip. I could have stayed back for a while longer and done some more fun things. Oh well.

What shocked me even more was the lack of information at the airport. The departure screens took nearly an hour before they updated those in the terminal of the delay. In the interim, they announced a gate change, without mentioning that when you got to the new gate, you'd be waiting an additional 5 hours.

I can't imagine approaching your business in this manner, at least if you were in any other industry than the airline industry. Sadly, the state of air travel just seems to be that you can expect some kind of problem and it's easier to just approach your flight with the mentality of get on the plane, keep your head down, get off plane and hope nothing happens to you.

At this late hour, I can't think of any other industry where you can treat your customers in this manner, but I'm sure there is one out there. But as a business owner and counselor to small businesses, this is a lesson in the importance of customer relations.

Wednesday, July 12, 2017

Why Do I Need An Estate Plan?

Sensing a theme this week? It seems that around the Fourth of July holiday, a bunch of people suddenly realized that they may want to get their affairs in order and I have been dealing with a variety of estate planning needs for my clients. The meetings all seem to start the same way, with the nice person across the table being convinced,

I just need a simple will. Maybe I should just use LegalZoom?

But then the real discussion starts. You can use an online form tool, but if you make a mistake or choose the wrong form, there is no one there to explain to you the folly of your ways. So our discussion continues about the need for an estate plan.

If you don't have an estate plan, the government (usually the state where you live) will decide what to do with your assets after you are gone.

That doesn't necessarily sound bad, right? To plenty of folks across the table, letting the government sort it out for them sounds about right (although these days, in this political climate, do you really trust the current government to get it right?). But what about the kids? And now our discussion gets a little more intense.

While some people don't really care if the government disperses their assets after they are gone, 

No one has ever sat across the table from me and been comfortable letting their local government decide who will take care of their children after they are gone.

Especially if the children are little and will need a guardian, and will need money for that guardian to take care of them and send them to school and other expenses, now the lightbulb in the head goes off that an estate plan is a helpful thing to have done correctly. Beyond money for the children, who will be appointed as their guardian to take care of them? What if you don't really like your brother-in-law who would be the favored appointee by the state? 

It usually takes about 15 - 20 minutes, but pretty quickly people can figure out that that "simple will" that they filled out on the internet is worth about as much as you pay for it. And of course, if you don't sign that "simple will" correctly, you've created a whole new level of complications for those who are left behind...

Still not sure why you need an estate plan? Feel free to contact me and we can discuss it further...

Monday, July 10, 2017

When Do I Need An Estate Plan?

One of the most common questions I get is when should someone create an estate plan. This normally seems to come up as we are wrapping up another legal matter and my client remembers that we had discussed their need for an estate plan a while ago (or when I meet young parents at an event and they ask what I do for a living). Since we are fast approaching the middle of summer, the answer is simply:

Right Now

The middle of summer is a quiet time for most people and is a good time to think about your estate plan and get things in motion to get it wrapped up. While it may not be the top priority, summer time is a perfect time to get things in order:
  • You have time to meet with an attorney
  • You have time to talk with your family
  • You have time to think about the details of your estate plan
  • You have time to sit down and sign your estate plan
Putting this in place, you can have your estate plan draft, signed and off your plate before the rush of "Back to School" hits in September.

Wednesday, May 24, 2017

Wedding Season is Upon Us, Do I Need a PreNup?

The weather's turned warmer, the Save the Date cards have gone out, the wedding planning is in high gear (if you need a good planner, I suggest Busy Bride Planning + Consulting) and you think you've got everything checked off your list to make this the best wedding.

But then you start reading the newspaper, checking your new feeds or watching the local news, all of whom suddenly have an interest in telling you that you need a prenuptial agreement before you get married. It's like all forms of media are conspiring to get this idea in front of you and into your head, whether you like it or not.

What's really happening is that the media knows that with all of the upcoming summer weddings, it's a great time to push all kinds of things in front of a nervous couple who can't wait to be married and are suffering from constant FOMO (Fear Of Missing Out).

But despite the media hysteria, preparing for your wedding is a good opportunity to get your affairs in order as you get ready to merge your life with someone else's. You've spent some time on your own, but now your life is shared with someone else (and possibly someone else's children, other relatives, a cat, maybe the upstairs neighbor who stops by on Fridays for some odd reason) and it's a good time to plan for that future.

This time of year brings many common issues to my office door. The two most prevalent being: 
  • Do I need a Prenup? I don't know, but it's worth sitting down with a financial advisor and an attorney to figure out if one would make sense for you and your family.
  • Do I need an Estate Plan? Probably. You're about to start a new life together with someone and it would be great to have an estate plan in place so you can start your life fresh with confidence that you have a plan in place.
Anything else to consider? You probably want to check your beneficiary designations on your accounts, making sure that Aunt Rosie isn't listed as the person who gets your money. You should also check any prior wills, legal agreements or other agreements that may impact your life with your new spouse.

It's an exciting time preparing for a wedding, but with that excitement, make sure to keep your future planning in line. It's designed to keep things from being exciting, which in the end, is what you're future spouse would prefer...


Monday, May 22, 2017

It's the End of the School Year, Time to Plan Ahead

No matter if you are just starting school, are in school, graduating, or haven't been in a classroom in decades, it always seems like the end of the school year impacts our lives in some way each year. 

For some of my clients, the end of the school year reminds them of the need to plan for the future, especially as their children are one year closer to starting (or graduating) college. So now is a good time to circle around with your financial advisor and see what plans you have put into place for savings for college (or other large upcoming expenditures like a wedding). It's also a good time to re-examine your estate plan and see that everything is up to date and see if you need to put some money aside in a trust or other mechanism if your children are still under the age of majority.

If you're running a small business, the end of the school year will often coincide with the end of a fiscal quarter, or even the fiscal year if you're working on a June 30th year. With the warmer days of summer approaching, it's also a good time to see how the first half of 2017 has gone and where you have opportunities for growth over the course of the summer and into the fall and winter.

While it may be the end of the school year, it's also a great opportunity to be the beginning of one of your best years yet! Don't let the opportunity bypass you to get some good planning under your belt before the warm summer weather becomes too distracting.

Wednesday, April 26, 2017

Upcoming Podcast Appearance?

My Wednesday morning started out a little different than normal. I was interviewed for an upcoming podcast about Brooklyn real estate (the podcast hasn't officially launched yet, so I don't have any links yet). It was interesting to talk to the host for a bit about Brooklyn and New York City and how some things have changed over the years. Our discussion brought me back to my earlier career as an attorney and even some memories of when I first moved to New York in the 1990's.

The changes in New York City over the past 20 years alone are astounding if you look back at old posts or articles about the New York of the 1990's. Throw in the aftermath of September 11, 2001, and the rise of smart phones and the apps that we all use to manage our day to day life, and life today would be almost unrecognizable to someone from 20 years ago.

I'm looking forward to listening to the final production and the feedback that comes from the listeners.

Friday, April 21, 2017

The I.R.S. Will Use Private Debt Collectors?

The New York Times has a story today about the I.R.S. beginning to use outside private debt collection companies to collect on overdue tax payments. This immediately raises significant concerns that the most vulnerable tax payers could be quickly targeted through this system.

For years I have worked with individuals who have been targeted by pay day loan companies and fake debt collectors who have purchased information from the pay day loan companies to use to try to scam individuals. Now, armed with the knowledge that private debt collectors are going to be used by the I.R.S., these scammers will have a whole new angle to prey upon people with their scams.

The optimists in Washington will hope that these private debt collectors will not violate any laws or rules and will be effective in collecting these debts, which the article estimates to be at $138 billion. It probably helps us all if the government is able to collect on money that it is properly owed, but this sort of system will create a whole new type of scam to prey upon people.

Going forward, it will be even more important for people to verify that the debt collector who is on the phone is really collecting an authentic debt...


Wednesday, April 19, 2017

All's Quiet on the Social Media Front?

It seems like things have been pretty quiet across the social media front for me recently, but that's more a result of all of the extra things that have been popping up with my new office that have been taking up a lot more of my time than I anticipated.

In the middle of all of this, I saw a great post from Seth Godin about Avoiding the good/great chasm. It's a short post, but it hits home about the importance of spending time on the things you really need to spend time on. His opening example about Twitter is a good example:

You can be good at Twitter in about five minutes a day. Spending ten minutes doesn't make you twice as good... in fact, there's probably little measurable improvement. To be great at Twitter might take five hours of daily effort.
All the time in between five minutes and five hours is wasted. You're in a chasm with no measurable benefits.

Often I find that my clients, and, admittedly, me as well, are spending a lot of extra time on things that don't really add a lot of value to what we are working on. To truly make that extra work pay off (i.e. getting to the "Great"), we would have to dedicate far more time than we have. So instead, we try to find ways to make things more productive and less time consuming. We don't always need to be the absolute best at everything, but can get much farther by being the best at our core businesses or products to really get ahead.
If you haven't signed up for Seth's email list, I suggest you go do it now. It's one of the emails I look forward to reading each morning.

Wednesday, April 5, 2017

Finally Settled Into my New Office

It seems like it has taken forever, but I'm finally situated in my new office. Three days of moving my files and things into the office have kept me busy, and I can now be found at:

6800 France Avenue South, Suite 190
Edina, Minnesota 55435

My phone number is still the same, (612) 294-6982, and of course my email is the same as it always has been.

Looking forward to seeing clients in my new office...

Friday, February 3, 2017

Saving a Family Business from Emotional Dysfunction


There are some pretty eye-opening stats, like

  • 2/3 of the businesses around the world are family-owned
  • It is estimated that 90% of U.S. businesses are family-owned
  • Only 3 out of 10 family businesses survive into a second generation and only 1 out of 10 survive into a third generation

As the article points out, one of the best ways to deal with these issues is to get the controlling family members to focus on the future and what the business will look like after that generation is gone from the business. 

The article also suggests the importance of "Fairness" in the dealings between family members, pointing to three possible practices to implement:

  • Give everyone voice, creating the perception that everybody in the family can make a difference
  • Provide clarity, offering timely and accurate information about family and business issues
  • Be consistent, applying the rules in the same manner to all members of the family

In addition to these practices, the article discusses the benefits of creating a "Constitution" for the company and the importance of having a strong Board of Directors.

The advice laid out is good food for thought, especially for many of the small businesses I have worked with over the years. A family-owned small business inherently has unique issues that need to be addressed so that it can thrive for generations, especially considering how many family-owned businesses there are in the world.

Wednesday, February 1, 2017

Nanny Tax Requirements (State by State Guide)

One of the big benefits of starting your own business is often the flexibility that being the boss allows when it comes to your children's schedules. But when you first start the company, you'll often be working longer hours than you ever anticipated. For some people who choose to go that route, hiring a nanny can be a good way to make sure your children are taken care of.

This week I came across a good site that allows you to see the tax and labor law for your state when you hire a nanny:


You can choose your state and it will give you a summary of how your state's laws treats your nanny, including their Worker Classification, Tax Responsibilities, Labor Law Requirements and Insurance. It also includes a Budget Calculator for you to examine the financial impact the nanny will have on your home budget.

If you are preparing to hire a nanny for the first time, or just want to make sure that your current situation is checking all the requirements, check out the website for some good answers.

Monday, January 30, 2017

We Got a Prenup, We Got Married, Now What?

After a busy holiday season of preparing prenuptial agreements for clients who were getting married in early 2017, the inquiries now start rolling in about what to do next. For many of my clients, the prenup holds a significant planning piece of their future, which allows them piece of mind as they walk down the aisle. But then once that is done, and they are married, and they have re-affirmed their prenup, what do they need to do next?

The often overlooked answer for most of my clients is their estate plan. After spending all that time working on the prenup and plan in the case that they get divorced, the next logical step is to then prepare an estate plan to address what happens is they die. Although it may seem like a rather morbid thought so soon after your wedding, it's actually the logical next step as you plan out your lives together.

Of course, I have some really over-achieving clients who do their prenup and estate plan at the same time, but that is not the norm. For most people, they enjoy that newlywed bliss and let their estate planning needs lay dormant for too long.

So, if you recently got married, whether or not you had a prenup, it's also a good time to get your estate planning needs taken care of too. It's just another good way to get things started on the right foot as you begin your married life together...

Wednesday, January 25, 2017

Announcing (Quietly) My New Minnesota Office

I have been admitted to practice law in the State of Minnesota and the local office will be located at: 

4940 West 77th Street, Edina, Minnesota 55435
Phone: (612) 294-6982
Fax: (612) 294-6988

Lots of things to do in the meantime and a more formal announcement will follow in the future. 

Thank you to all who helped me get to this next step in the growth of my firm!

Wednesday, January 18, 2017

Preparing for Some Upcoming Changes

Things have been a bit quiet with me as I prepare for some very big upcoming changes. Due to the nature of the changes, I am unable to announce the changes formally, but should be able to do so in the next 7 - 10 days...

In the meantime, one of my oldest cases finally settled and my client and I are able to move forward. This client has become one of my most used tales of caution to prospective and new clients about the importance of getting things in writing, especially when entering into a business deal. Because this client had nothing in writing, the case dragged on for nearly five years until finally, as the trial was about to commence, the parties finally came to a resolution.

Over the course of five years, we saw all kinds of delays, changes of attorneys for the other parties, changes of judges (3 over the course of the case) and many a morning waiting in Court or at my office when the other party just did not appear and we were left to wonder what was going on. Over 100 hours of legal work later, the case has finally settled.

From this case, I've learned a lot of lessons, including the importance of a small business to make sure to clean up their agreements (or draft agreements if they don't already have them) and make sure that all of the clients have signed off on the agreements. Without these agreements, or specific terms in an agreement that are necessary, businesses can be left exposed to allowing the Court to determine terms of the agreement (or lack thereof) and thus take it out of the hands of the parties who agreed.

Looking forward to announcing more news next week...

Friday, January 6, 2017

Welcome to 2017...

We’re finally delving into 2017 and as they tend to do, a lot of new year’s resolutions from people have fallen by the wayside about 5 days in. Where the gym was a madhouse on Monday, by Friday, things are a lot quieter as people get back to their grind and struggle to find the time to workout.

With the end of the holidays and the beginning of the new year, the mix of clients coming in the door has changed over. Where December brought in small businesses looking to finish up the 2016 hustle and get ready for 2017, once the year turned, things turned back to more personal transactions at both ends of the spectrum. Some folks experienced a terrible holiday and need to get a divorce, but the happier folks coming in the door got engaged and need to get their affairs in order and get a prenuptial agreement in place before their wedding.

Also on the business side, a small company that I’m excited to be working with has some really big plans for 2017 and it has been eye opening to work with them on the legal machinations that we can put into place to help them get to where they need to be. The founders have put together a good team on all fronts and as things continue to mesh well and move forward, it definitely feels like something big is on the horizon for them.