Shawn J. Roberts

I talk about this issue with clients regularly and it is one of the fundamental decisions that many small business owners are faced with when thinking about Oklahoma business law:

Do I operate my business as corporation or a limited liability company?

A few months ago I posted my Entity Explanation Table which provides an overview of the factors to consider in choosing between a corporation and a limited liability company.  To add to this discussion, take a look at this recent article To C or LLC, that is the question from Brad McCarty at The Next Web

The carries out the corporation vs. LLC discussion in a bit more detail.

In my last post I discussed the circumstances that led to the creation of Legal Zoom services and why its creation was a good thing for attorneys.  Today, I describe that downside of the commoditization of legal services.

Legal Zoom is less than good because it offers an incomplete solution.

For the low, low price of $$$, you can have a Will, form a corporation or secure a basic trademark.  You get the bare minimun:  existence as a corporation, a functioning Will or a simple trademark.  What is missing?  The counseling element, knowledge and experience that all good attorneys provide.  The question should not be “Can I get incorporated?”, the questions should be:  ”Do I need a corporation or limited liability company?”, “How should the entity be structured?”, “How do I develop a structure for recordkeeping and legal documents?”  

These are the questions that when answered properly help lay a solid foundation for any business or estate planning document.  The acts of incorporation, drafting and executing a Will or bringing a limited liability company into existence is a part of the process, not the whole process.  It is like fixing a leaky faucet with a do-it-yourself kit from Home Depot only to discover later when your kitchen floods that all your plumbing is bad.  

Legal Zoom and similar sites provide access to the system but do not completely equip users for flourishing within the system.  In “3 easy steps” a business has addressed all the necessary legal issues and built a solid foundation.  If you check all the boxes you have addressed all the issues.  Law is a commodity that can be bought and sold in bulk.  My experience teaches me that none of those statements are correct.

With the creation of your business or your Will you want a relationship with your attorney not a one-click stand.

What are your experiences with Legal Zoom and related products?

It is a loaded question: asking a practicing attorney what he thinks about a service which reduces the need for attorneys.  However, I want to weigh in and you might be surprised at some of my thoughts.  

Legal Zoom is one of several services that allows people to form corporations and make Wills for a very low price, all online.  As part of the work I do for people, I bring corporations into existence and assist people in setting up Wills.  

Legal Zoom is good because it forced attorneys to consider what we provide that has actual value.

There was a time when actually creating the documents that are Wills and that form corporations was closer to “magic.”  When word processing was limited to a chosen few individuals and businesses that could use computers.  When there were no websites that provided information, connected people and allowed online transactions.  When word processing and access to materials was at a premium, the market supported charging for those items.

Those days have passed and most people can process their own documents and access the Internet from the comfort of the couch.While the times changed, much of the legal profession did not.  We (or many of us) kept operating in an market that had long since been altered.  There was little value in actually typing the document – a million forms were available online.  There was almost no value in knowing a process that was open to everyone (such as filing documents with the secretary of state online).  We were left selling services 1975 style in the 2000s.  There was a response from the market:  Legal Zoom and similar companies.

What did Legal Zoom get right?  It charged the correct price for the technical act of completing form documents.  It guarantees the documents are legal and for the low, low price of $$$ you can have a Will or form a corporation while you are at Starbucks.  In the process, Legal Zoom and similar sites actually helped attorneys and consumers of legal services.

Tomorrow, I will discuss the downside of Legal Zoom and related services.

The phrase “buy-sell” is popular but often misunderstood.  A buy-sell agreement, or shareholder agreement as it is sometimes called, controls how ownership interests in a company are transferred.  A buy-sell agreement sets terms on how a business can sell her ownership interest if she leaves a company for any reason and protects the people who remain as owners.

It is particularly important for small companies to have written buy-sell agreements because often there is no independent way to value an ownership interest.  With a publicly traded company or actively traded privately-held company, there are some benchmarks, with a small company there is no standard.

1.  You should choose your business partners. You make plans to go into business with one or two other people.  You choose these people for many positive reasons.  What if one person leaves the company and sells her interest to a stranger who has money?  That stranger could become your business partner, for better or for worse.

2. The time when someone leaves a company is not the time to be hashing out value. Partings are rarely pleasant.  This holds true when one of a handful of business owners leaves the business.  Emotions may be running high and logic may be throttled.  Trying to determine a buy out strategy and value at this point is thorny and fraught with difficulty.  Don’t do it; set the strategy and mechanism for calculating the value while everything is peachy.

3. It protects your family. Death and disability are often reasons for needing to transfer a business interest.  The departing owner is often not capable of operating or negotiating at this point (obviously not capable in the case of a death).  The owner’s family both needs and deserves to be paid value for her interest.  If there is not a buy-sell agreement in place, my experience has been that the surviving owners are not overly eager to pay out compensation.  It’s not right, but far to often its reality.  You can prevent this by having a buy-sell agreement in place that dictates how a business compensates the family in case of death.

Take of advantage of the opportunity of good health and good relations to put a buy-sell agreement in place; this benefits all the owners.

Have you been the dissolution of a business or left ownership of a business?  What kind of experience did you have?