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Choosing the Right Startup Attorney in DC
When looking to hire a startup attorney for the first time, you may be overwhelmed by the choices available to you on the UpCounsel platform – there are some attorneys with extensive corporate backgrounds, some with unique industry connections, some with litigation experience, and others with a more focused practice offering. Choosing the right startup attorney can be particularly difficult if you have little or no experience working with attorneys in a previous professional capacity.
Though circumstances vary quite a bit, if you’re just starting out, you’ll likely benefit from your attorney meeting certain criteria.
Your first startup attorney should have a broad skillset, or should work with other attorneys who can be brought on for certain tasks as needed (though be sure to confirm whether this will incur additional costs). Having a broad skillset means that you attorney is well-equipped to advise on a variety of present and potential issues facing your startup, from intellectual property to employment law and third-party contract concerns. A more specialized attorney may not recognize certain broader legal issues. Failing to address potential legal difficulties early can lead to problems later down the road.
Attorneys often distance themselves from their clients, a strategy employed by many time-strapped attorneys so as to prevent overextension for needy clients. As you search for a startup attorney, try to assess an attorney’s willingness to engage with clients. You do not want to work with an attorney who will outright avoid your emails and calls, or use a secretary as a barrier to communication. Some matters are extremely time-sensitive, and it’s important that you be able to engage with your attorney and receive a response within a reasonable timeframe.
Avoid lazy attorneys. Too often, attorneys will draft contracts and other documentation using a standardized “form” outline. Though repeat provisions are to be expected, your attorney should properly assess your needs and customize your agreements as appropriate. Reliance on form contracts can lead to serious legal problems later on (i.e., if your contract is not sufficiently specific).
When drafting agreements, a good DC startup attorney will sit down with you and your team and discuss the various provisions (and the consequences of such provisions) to ensure that you have a full understanding. Don’t be afraid to ask plenty of questions!
Protect Your Brand
Intellectual property is often the most valuable thing that a budding startup owns – a brand, design, license, or process – and for such startups, protecting intellectual property is crucial to their success. Of course, not all intellectual property concerns are pre-emptive or defensive in nature. In some cases, your startup may have to pursue an infringement action against another business, and in other cases, your startup may have to license intellectual property from another business (i.e., music to play in an app).
Many startup attorneys spend part of their career practicing in intellectual property, so it’s common to find startup attorneys on the UpCounsel platform with intellectual property experience. Depending on how fundamental intellectual property is to your startup (and how complicated you expect the issues to be), it may be worth hiring a specialized intellectual property attorney or, at the very least, working with a startup attorney who has specialized colleagues or Of Counsel that will be brought in as needed.
Your attorney should advise you on the strength of your trademark, register your trademark in the federal register or the applicable state, and research conflicting trademarks. If trademark infringement issues crop up, your startup attorney should be capable of defending against or pursuing litigation (or should have the contacts necessary to bring in a skilled trademark litigation attorney).
The advising role of a startup attorney is absolutely crucial when it comes to trademarks. If your mark is not maintained – through advertisement, pursuing infringers, etc. – you risk losing trademark protection.
Startups often violate copyright law by failing to license copyrighted media for their purposes. The best startup attorneys are experienced in handling licensing from negotiation to completion. If your startup emphasizes media production, then you may also need your attorney to advise on a licensing strategy and to take action against infringers.
Patents law is even more specialized than trademark and copyright law. Though the business-side can be handled by a more general attorney (i.e., licensing), if you intend to apply for a patent, then you should work with an attorney who is a member of the Patent Bar and who has experience with filing, researching, and negotiating the complexities of a patent application.
Draft Sufficient and Explicit Documentation
Many startups initially look into hiring an attorney for document drafting needs. They may be interested in forming as a corporation, limited partnership, or under some other organizational structure – which not only requires registration with the relevant authorities, but also requires that various business formation documents be drafted (such as the Articles of Incorporation, Stock Agreements, Founders’ Agreements, and more). Others are looking to expand and would like quality employment contracts – alongside stock option agreements and confidentiality agreements – drawn up to ensure that everything is clear to incoming employees.
This can all be a bit overwhelming for the budding startup, but the key is not to move forward without the help of a qualified attorney. Setting up functional contracts and drafting correct documentation is well-beyond the expertise of a layperson.
Keep the following in mind.
Online Form Contracts are not a Substitute
There are many popular online services nowadays, such as Rocket Lawyer and LegalZoom, that offer cheap contract services. You can order business formation documents and other basic contracts through their services, with minor user-driven customization. The problem with these services is that the contracts are standardized, and an attorney does not advise on the provisions of the contract as they relate to your particular needs.
The value that a startup attorney brings is not only professional experience with regard to how to draft a contract correctly, but also the skill necessary to sit down with a client and understand their particular business needs and goals. Once an understanding has been reached, your attorney will work with you to ensure that the provisions are comprehensible and to your satisfaction. They will also advise you on the advantages and disadvantages of certain provisions, and how to draft around certain concerns.
Do Not Rely on Oral Contracts
Though oral contracts are generally enforceable in DC (and in most states) they are highly discouraged. The problem with oral contracts is two-fold: 1) the contracting parties may not have reached a “meeting of the minds” as to the applicable provisions; and 2) they can be difficult to enforce.
Oral contracts can lead to a great deal of confusion between the contracting parties, as nothing is written down and recorded explicitly. Suppose, for example, that you hire a freelance contractor according to an oral agreement. The freelancer was under the impression that he would be paid every two weeks. You were under the impression that the freelancer would be paid every month. Without a written contract, there is no resolution to the problem except by compromise.
In the event of a legal dispute, you’ll find that oral contracts are much more difficult to litigate. The facts of the contract are typically contested, and each party may have different memories pertaining to the agreement.
Rather than working with the uncertainty of an oral contract, it is recommended that you hire a startup attorney to draft written contracts.
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From primarily dealing with things like business formation, contracts, leases, equity financing, securities, and intellectual property protection, the Washington startup lawyers on UpCounsel can help you with a variety of specialized and general startup law related legal matters. No matter what type of startup law needs you have, you can easily hire an experienced Washington startup lawyer on UpCounsel to help you today.
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