Communiqué Past Articles Communiqué - May 2007 | Communiqué - May 2007 |
|
Also featured in the latest edition:
Regular features in the printed edition include:
The Practice of Franchise LawBy Matthew J. Kreutzer with Brent C. Eckersley Look outside your office window. What do you see? Chances are that you are looking at a franchise. Franchises play a big role in our lives—from Alphagraphics to Jimmy Z's Pizza. After all, it is franchising that has made it possible for us to travel halfway around the globe and still be able to count on getting the same quality meal that we can buy on the way home from work. Franchising is big business. Although franchises themselves constitute less than ten percent of all of the businesses operating in the United States, their revenues exceed fifty percent of the country's total annual sales volume. Despite these impressive numbers, the total number of lawyers practicing franchise law is exceedingly small. Nowhere is this more evident than in Las Vegas, where, according to Martindale-Hubbell, only five lawyers (myself and Brent included) identify themselves as practicing "franchise law." I came to the world of franchising more than seven years ago, when I joined a small firm in Washington, D.C. that specialized in the representation of franchisees. After moving to Nevada, I joined Hale Lane as an associate in its litigation practice group. It was here at Hale Lane that I met Brent, one of the firm's transactional lawyers. With his transactional experience and my background in franchise litigation, we were able to play to one another's strengths as we began handling franchise matters. Brent and I saw the opportunity in this city for experienced practitioners that understand the ins and outs of the franchise relationship. With all of the people moving to Las Vegas every month, there is a constant flow of new businesses and concepts—some of which are successful, some not. The successful business owners start to think about growth, and some decide that franchising is the best way to achieve their goals. A company seeking to franchise its concept faces some challenges before it can go to market, one of which is compliance with the Federal Trade Commission's franchise rule. The FTC rule requires franchisors to provide prospective franchisees with a detailed disclosure document at their first personal meeting. This document—the Uniform Franchise Offering Circular, or UFOC—must disclose information in twenty-three different subject categories, ranging from the total initial investment required to the franchisor's past history of litigation. Because of the complexity of these documents, franchise companies rely on attorneys for their preparation. Although the primary focus of our practice is assisting franchisors needing UFOC and franchise contract preparation, Brent and I do handle other types of franchise matters as well, including franchise litigation. We also help prospective franchisees in reviewing and negotiating their franchise contracts before they "sign on the dotted line." The types of disputes that arise between franchisees and franchisors can involve many different areas of law, most of which have a unique application in the franchise context. For example, almost every franchise agreement contains a covenant not to compete that takes effect after the agreement either expires or is terminated. If litigation over the non-compete ensues, some courts will apply an employment standard in determining whether the covenant is reasonable in scope and duration. Other courts will apply a more stringent standard, reasoning that the franchise contract termination is more akin to the sale of a business. What has resulted is a hodgepodge of decisional case law with no one approach being used on a national level. Although our practice is challenging, it does have its rewards. We help business owners achieve their goals and expand their brands; we get to watch them develop. As our practice grows, brands that we have worked with grow, too. You know that franchise that you see outside of your office window? The company just might be one of our clients. Matthew J. Kreutzer is an associate in the law firm of Hale Lane, and practices primarily in the area of commercial litigation, with an emphasis in franchise and distribution law. He has represented clients in both state and federal courts throughout the country. Brent C. Eckersley is an associate in the law firm of Hale Lane, practicing primarily in the fields of corporate and franchise law, with an emphasis on entity selection, capitalization, mergers and acquisitions and related transactions. He is admitted to practice law in state and federal courts in Nevada and California, as well as before the United States Supreme Court. The Teeter-Totter: Balancing Motherhood and the Practice of LawBy Ann Lyter Thomas I have combined the practice of law and being a mom since 1995 when our first daughter was born, a hectic lifestyle that became even more hectic when our second daughter was born seventeen months later. I know many women who combine motherhood with the law and it always involves compromise, and too often guilt: Guilt for having to go to work for a meeting or to complete a brief even though a child has a school play or "Muffins with Mom" (and how does the school always know the one day in May when I have an early hearing?). Guilt because taking care of a sick child takes precedence over a client. Guilt because billable hours are suffering due to the competing demands of being a mother. Being a lawyer and a mom means I will not have the highest billable hours, but it also means that I will not be given the PTA's "Volunteer Mother of the Year" award. It is always a question of balance. Many people are amazed that to this delicate balancing act, my husband (also a lawyer) and I added another child. Surprisingly, the addition of the third actually brought about changes that made the entire balancing act easier. The impending arrival of our third necessitated a dramatic shift to telecommuting. In October of 2004, my doctor ordered bed rest. Since the baby was not due until January of 2005, this was extended bed rest. Technology to the RescueThrough a high-speed internet connection and a VPN (virtual private network), I was able to log into the office computer from home just as if I was in the office. With a secure wireless network and a laptop, I was able to set up a virtual office anywhere in my house. I had immediate access to my email and files. By scanning documents, almost everything in the office could be sent to me by email. When necessary, large boxes of documents were sent to me by runner. In this way, I was able to continue working on cases that were in various phases of discovery or motion practice. I drafted letters, memos and briefs at home and then emailed them into the office to be printed and mailed or filed. Through call forwarding, the fact that I was telecommuting was not readily apparent to clients or opposing parties (At least not until school let out and our older children could be heard in the background). Calls after 3:30 p.m. were admittedly difficult. By phone, I was able to attend conferences with clients and other counsel from home, made even easier with a speaker phone. Even the courts were accommodating and permitted me to attend several hearings telephonically. In this way, I was able to represent my clients fully and maintain a full-time practice, all while remaining on bed rest. What began as a medical necessity has continued as a means to balance a full-time law practice with raising three daughters. There have been some changes: the VPN has given way to remote access that is faster and more reliable, and I rarely attend hearings from home. Yet the ability to access all of my computer files and email from home gives me the flexibility to leave work early so I can attend our children's activities and then work in the evening after the children have gone to bed. Telecommuting also allows me to work on weekends without leaving home so I do not miss out on what my children are doing. Significantly, the ability to telecommute allows me to work and remain productive even when I have a child home sick, allowing me to take care of both my children and my clients. Although I no longer telecommute full-time, being able to do so allowed me to maintain my practice while we awaited the arrival of our third daughter. Now it helps me maintain the balance of work and family. And maybe this year, I will make it to Muffins with Mom. Ann Lyter Thomas is a shareholder of Kolesar & Leatham, Chtd. She practices primarily in the areas of Commercial Litigation and Employment Law. Unpopular Choices Can Lead to Niche Practice Areas: Follow Your Passion!By Tracy L. Singh As a Registered Nurse and Attorney, I, Tracy L. Singh have developed a niche area by following passion. I have dedicated my solo practice to helping healthcare providers learn how to avoid malpractice and protect their professional licenses. I offer lectures and seminars on specific ways to avoid malpractice and defend health care providers against board complaints. I also continue to provide case evaluations for attorneys and clients to determine whether or not their case involves medical malpractice. Many solo attorneys hang out their shingles as general practitioners and will accept any client who walks through the door. Initially, young lawyers may be reluctant to turn away any business for fear that more clients will not follow. A niche practice may not even be a consideration. However, trying to be a "jack of all trades" can be overwhelming and may not be ideal for your clients. Unlike working in a small town where attorneys may need to be available for all sorts of issues in order to stay in business, Southern Nevada has many clients in need of good legal services. Having a niche or non-traditional practice can actually be to your advantage in a larger city. As a sole practitioner, if you are not selective about what type of cases you want to handle, you may find yourself stretched too thin in a very short amount of time. My husband thought I was crazy when I told him that I turned away the very first client who came into my office for a consultation. However, the matter was not something I was interested in and it was clear that this client was just looking for a young lawyer to take advantage of. He had all of the "red flag" signs lawyers talk about and as difficult as it was, I knew I had to say, "Thanks but, no thanks!" In law school, a professor told me, "If you open your own office, your problem won't be getting enough business, it will be handling all of the business you will get." At first, that was hard to believe. But, looking back after being in business for almost two years without any real advertising, I have to say, she was absolutely right! Having a niche practice can also be good for business. It lets clients and other attorneys know what type of cases to refer to you. For example, if you are a general practitioner, and someone wants to send you a client who has a real estate issue, they may prefer to send that client to someone who deals with real estate matters on a regular basis instead. If you would like to develop a niche practice and you are not sure what area of law to choose for your niche, just ask yourself, "What am I passionate about?" If you are passionate about anything, you can fall into a niche area before you even realize it. My niche practice was the result of a natural progression. It was being a patient that inspired me to go to nursing school and as a nurse, I realized that I needed to follow my dream of becoming an attorney. Because I was a nurse before I became a lawyer, nearly everyone I met recommended that I specialize in medical malpractice cases. However, having been a patient and undergoing major back surgery before I became a nurse, my true passion was "avoiding malpractice." I just needed to figure out how to build my practice around my passion. My niche is not a traditional area of practice. Most attorneys practicing in this area either sue for malpractice or defend against malpractice claims. My mission is to avoid malpractice claims altogether and improve our healthcare delivery system throughout Nevada, not just file suits or defend against it. I built a classroom right into my office so I could provide seminars to doctors, nurses and patients on how to avoid malpractice before it occurs. I offer on-site inspections, evaluations, and recommendations to show healthcare professionals how they may improve their services, avoid malpractice claims and protect their licenses. I also teach patients how today's healthcare system works so they can avoid being a victim of medical malpractice. Before law school, I started by working as a Medical-Legal Nurse Consultant. Today, I continue to review cases for other attorneys and their clients to help them determine whether or not their case actually involves medical malpractice and what the strengths and weaknesses are in their case. As a nurse-attorney, my services are now protected as attorney work-product. Unlike experts who are paid to tell attorneys what they want to hear, I tell them what they may not want to hear but need to know in order to make informed decisions about their case. For my most conventional legal services, I have dedicated my practice to representing healthcare providers against regulatory board complaints to help protect their professional licenses. Board matters and licensure defense is a very specific area of practice, which is very different than the typical civil arena. While most attorneys either dread handling these matters, or think board matters are not worth their time, I absolutely love this type of work! Having worked in the medical field as a nurse, and as liaison for physicians, I have a much better understanding of what my clients' needs are and what the boards' concerns are. It is my passion that makes my services most effective. As a result of my passion and dedication to this area of practice, I receive thank you cards, e-mails and wonderful feedback from my clients on a regular basis, which enriches my experience as a lawyer even more. One of my mentors and former employers, John H. Cotton, Esq., once told me, "If you follow your passion, the money will come." John Cotton was the one attorney I had always dreamt of working for and as scary as it was to leave his firm, I knew I had to follow my dreams and stick to my decision to open my own practice. My friend, Donna Stidham, Esq. is another example of how your passions can lead to a niche practice. Donna was not even sure if she wanted to practice as an attorney after law school. However, Donna is particularly passionate about animals and now that she has dedicated her practice to "Estate planning for people and their pets," she loves being an attorney. Donna receives calls on a daily basis from potential clients who share her passion for animals and they are very grateful for the services she offers. If you pursue your passion, as unpopular as your choices might be, you simply cannot go wrong. Good luck to all of you in whatever area of law you decide to practice in and, many thanks to those of you who have helped me along the way. Live with passion! Tracy L. Singh, Esq. is the only Nurse-Attorney in the state of Nevada who has dedicated her practice to malpractice avoidance and license defense for healthcare providers. She is passionate about helping all healthcare providers learn how to avoid malpractice and protect their licenses while improving our healthcare delivery system to benefit patients throughout Nevada. For comments or questions, you may contact her directly at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or visit her Web site at www.tlsinghlaw.com. Finding Purpose and Passion on Your Chosen PathBy Stephanie Pedersen A few years ago, I was given valuable advice regarding how best to pursue community service and non-profit board membership opportunities. "Do only what you are passionate about. There's not enough time to do everything else, despite what you and others around you may believe." Though we were only speaking of community obligations at the time, this advice rings true for all personal and professional choices we make. Determine what you are passionate about and choosing to do it, however, is not as easy as it may sound. I am a licensed attorney; however, I'm not practicing. In fact, five years ago, I received my J.D., passed the bar exam and chose a career in client development and sales. More specifically, I became an Employee Benefits and Human Resources Risk Management Consultant. This path is not the same road traveled by many of my fellow law school classmates who left school to pursue judicial clerkships and law firm associate positions. I've even been asked on a number of occasions why I would spend the time, energy and expenses associated with a legal education and not pursue practicing. Simply put, the answer to this question is that, coming out of law school, I was no longer passionate about becoming a large firm associate. The idea of sitting behind a desk with my head buried in a book or computer for hours on end each day held no appeal for me. Instead, I wanted to pursue a career that gave me the quality of life I desired and allowed me to take on my own clients and become an integral part of their lives, providing solutions in their time of need. Perhaps it was the entrepreneur in me that was rearing its head, but I knew that proper investment in my career required a unique opportunity. My "ah-hah" moment came at the expense of a poor, unfortunate client's difficulties. I was working as a law clerk for a large, well-respected Midwest firm, conducting research on employee benefits compliance issues. The deeper I dug into the procedural aspects of the law, the more I realized how easily the client could have avoided their current predicament. "Why," I asked myself, "hadn't they taken the basic steps of documenting their actions?" The answer, as painful as it might be, was simply that they didn't know how easily they could have avoided all of their anxiety, frustration and legal expense. The idea began to form in my mind that proactive human resources coaching would not only be a beneficial service to similar companies (of which I was sure there were many), but that it might also be a very profitable business to enter into. As fate would have it, a local employee benefits firm had posted an ad with my law school's Career Services office. Something about the way the ad spoke of being a solutions provider to your clients and being monetarily rewarded based on your own efforts appealed to me. On a whim, I replied to the posting. At the time, I did not know that the firm had begun considering adding an HR consulting aspect to their business and were looking for someone who would help guide its launch. So, in 2002, having come from a long line of successful business owners, I was offered and accepted a position with this insurance brokerage firm and resolved myself to successfully establishing my own book of business with clients who valued me as a trusted advisor. In this position, I had the opportunity to work hand in hand with my clients as their trusted advisor, helping them attract and retain top talent to their business through the creation of competitive benefits programs and the implementation of consistent human resources policies and practices. The degree of satisfaction I felt in my job was immeasurable, knowing that I had been instrumental in the creation and success of a new service that closely examined my clients' areas of potential liability, that created solutions minimizing their future risk, and that profited both my company and myself. Upon relocation to Las Vegas in mid-2005, I branched out from my prior experience, taking on the Director of Client Relations role for a local recruiting agency. This role as an executive recruiter and business development specialist has allowed me to further enhance my HR repertoire by adding practical recruitment and employee management experience while still allowing me to develop strong client relationships. In a way, my role now is not that different in that I continue to work closely with my clients to develop strategies to attract and retain top talent so my clients can attain the business goals they've set forth. When I look back over the past five years, I cannot help but be amazed by the path my professional career has taken. Not long ago, an attorney I knew well told me that I was one of the few lawyers he knew who could sell. He quickly assured that this was meant as a compliment. In fact, I believe it was Shakespeare who once wrote, "We know what we are, yet know not what we may become." I never intended on the path I've chosen and have been frequently surprised by the twists and turns it has taken. Instead, I believe it comes down to simply possessing the awareness to see a business need, the creativity to devise a solution, and the guts and passion to take that risk and see your solution through. In the end, despite the small mistakes and successes you may experience along the way, when you do what you're passionate about you cannot help but excel. Stephanie Pedersen, J.D. is currently the Director of Client Relations for Manpower Professional, the professional recruiting division of Manpower Inc. of Southern Nevada. Prior to this role, she was an Employee Benefits and Human Resources Risk Management Consultant for Power Group Benefits in Overland Park, Kansas. Stephanie is a graduate of the University of Kansas School of Law. |
© Originally published in COMMUNIQUÉ (May, Vol. 28, No. 5), the official journal of the Clark County Bar Association. All rights reserved.