Saved Money by Having Your Accountant or CPA Draft Corporate Legal Documents?

You wouldn’t go to your dentist for your taxes or your doctor to paint your house, right?  So why allow your accountant or CPA to draft critically important legal documents for your business?

Recently a number of clients seeking my help to fix problems and solve disputes have uttered the statement, “well, my accountant drafted that document for me”.  When non-lawyers try to prepare important legal documents for business, the business owner cannot go back to the accountant or CPA to fix the disaster because they lack the competence to do so.  It is actually a third-degree felony in Florida to practice law without a license, not to mention the fact that it upsets real lawyers because those people can cause a great deal of harm.  So, for those accountants and CPAs thinking you are doing someone a favor preparing contracts, bylaws, shareholder agreements, operating agreements, and the like . . . beware.

Accountants and CPAs have special training and experience in financial matters and taxes, not in business law.  Business lawyers do that and Florida Bar Board Certified business litigators are the only recognized experts in the field.  Florida’s business laws change and update in response to an ever changing commerical landscape.  It is a full time job for lawyers to keep on top of these laws.  Accountants and CPAs plainly are not qualified to prepare important legal documents under these laws.  For example, as of January 1, 2015, we have new limited liability company laws in Florida that apply to all LLCs regardless of how old they are.  Would an accountant or CPA know what changed and why?

Setting up or forming a business in Florida is relatively easy on sunbiz.org.  But, determining which corporate entity offered under Florida law is most appropriate is something to discuss with a business lawyer.  You also discuss the tax implications with your accountant or CPA, but the analysis is different.  By the way, there is no such thing as an “S Corp” as a corporate entity.  That is a tax election as compared to a “C Corp” or other choices, like sole proprietor and partnership, as to how you are treated for tax purposes.

The recognized corporate entities under Florida law are: (i) a corporation, regulated by Chapter 607 and identified by “Inc.”, (ii) a limited liability company, formerly governed by Chapter 608 and now by Chapter 605 and identified appropriately by “LLC” after the name, and (iii) a partnership, which is regulated by Chapter 617 and can have several identifiers depending on what kind of partnership it is.  For reasons your accountant or CPA can’t explain to you, the LLC is now the most common form of corporate entity used in Florida.

Depending on the circumstances of each business, it might need or be best served by having certain documents that govern its operations and internal structures.  These are commonly called “corporate governance documents”.  A corporation has bylaws and shareholder agreements.  LLCs have operating agreements, and partnerships, of course, have partnership agreements.  There are certain laws that apply to each and some of these can be bent and some can be changed.  However, an accountant or CPA that doesn’t have a license to practice law in Florida is not the right person to prepare those, just as the young person in the fast food drive-thru window probably isn’t the right person to prepare your taxes or give you tax advice, right?!

So what about contracts, non-competes, non-disclosures, and other important and useful business documents?  Yes, when not serving time for the felony, your accountant or CPA is the perfect person to prepare those for you and they can also run 60 mph and lift heavy objects as if they were a pen! Folks, don’t ask your accountant or CPA to break the law and prepare these legal business documents.  Get a good and experienced business lawyer and ask that person.  Florida has laws that impact all of these documents and lawyers, not accountants, CPAs, or anyone else, are responsible for knowing those laws and preparing documents that properly use those laws and don’t violate them.

What Are Your Document and Data Preservation Obligations?

Our world is becoming increasingly digital.  Businesses are keeping more and more information in electronic format, which highlights the question of what must a business operating in Florida keep and what can it delete in the context of a civil lawsuit.

The simple answer of keep everything may not be practical or efficient.  Sure, storage media is cheap, but storing everything also means someone at a law firm has to look through it, which can translate in enormous electronic discovery costs in litigation; we’ll get to that in a minute.

Not long ago, Florida adopted procedural rules in civil cases (contract suits, car accidents, divorces, etc.) that were modeled largely on existing Federal Rules.  Our Florida Rules require that parties perserve relevant data when served with a lawsuit or receive reasonable notice to keep data, whichever is earlier.  So, for example, if your business isn’t suing or being sued, you can freely clean out your hard drive, but you might want to consult with counsel first or archive data just to be sure.  You can still delete data if you are involved in a suit, just not data relevant to that dispute.  If you do, bad things can happen called sanctions for spoliation of evidence.

So then, what’s the easy solution? Have a data management plan and preservation policy and follow it.  If you do, you are in the safe harbor of the Florida Rules.  What do you put in that Plan?  That’s something a Board Certified expert in business litigation with experience with electronic discovery should craft for you.

Now, what is electronic discovery you asked? It is the process of obtaining and processing relevant data by and between parties in a civil lawsuit.  More simply, it’s getting your e-mails and stuff in a lawsuit.  It takes the old process lawyers used of gathering all the documents and exchanging them in a case and brings it into the 21st Century.  It recognizes that businesses and people have a lot of data and it makes efficient use of technology to process that data.  But, someone still has to look through a certain amount of that data and that’s what increases your costs.

In e-discovery as it is called, there are two large costs; the software and the lawyers who use it.  The software cost depends on the vendor and there are about a thousand of them.  Some charge for upload of data and for use.  So, the more data you have to upload and store, the more expensive it is and that’s why storing everything isn’t always the best answer.  The attorneys’ fees naturally depend on the billing arrangement with the law firm, but at the end of the day, someone has to look through some part of that data.  So, the less data there is, the less time it takes, and the less it costs.  Getting the picture?

So, in sum, storing all data for a business isn’t necessarily the best solution as doing so may inadvertently cause future e-discovery expenses to balloon in any lawsuit.  In Florida’s State Courts, businesses now have a legal obligation to preserve electronic data when demanded (with limits) or when sued, whichever comes first.  The intelligent reaction for any business or business owner is to have a proper data management plan and preservation policy for the business in place now to reduce e-discovery costs and exposure to liability later.  For that, look to one of the 240 Board Certified business litigation experts in Florida who can guide you through this developing area of e-discovery.

What you need to know about buying a business in Florida

This article addresses some of the more important issues you should know before investing in or buying a business in Florida.  While the author is a Florida-licensed attorney who is recognized by the Florida Bar as an expert in business litigation law, this article is not meant to provide legal advice or to form an attorney-client relationship.  It is meant only to provide general information about this topic.  Each situation is different so it is best to consult with an attorney as to your particular circumstances.

Any party contemplating investing in an existing Florida business or buying one should know that Florida law deems those who participate in business ventures to be sophisticated business people to a certain degree.  Therefore, is in incumbent upon that party to perform due diligence before closing on the transaction.  The level and amount of due diligence is highly specific to the transaction and to the degree that the investor or buyer believes appropriate and proper for the particular situation.

Such due diligence may include reviews of the internal financial operations and health of the business.  Such due diligence may also include, but is not limited to, investigations of the community in which the business operates and the demographics of its customer base.  Financial professionals, such as CPAs, along with business valuation experts and business brokers can provide assistance and guidance in determining the health of a business and the veracity of the seller’s representations in your due diligence.

Investing in a going concern may be seen as an alternative to traditional investments, such as the stock or real estate markets.  The investor should begin by requesting the opportunity to perform an examination of the corporate formation documents, as well as its books and records.  Florida law requires businesses to maintain certain books and records and these can illuminate the manner in which the business has been operated for the investor.

Where someone invests in a business, the investor will ultimately want to have his or her investment clearly documented in the corporate books and records.  Before making the decision to invest, however, it is prudent to seek the advice of attorneys that practice in the area of corporate and commercial law as to how best to structure and document the investment.  Consulting with such professionals will help the investor to understand the liabilities that the investor may potentially assume and how to craft the transaction in such a manner as to minimize or avoid such exposure if that is the investor’s goal.

With regard to buying an existing business, generally purchasers only buy some or all of the assets of a business to avoid any potential liabilities that may have attached to the business itself.  However, in some instances it may be beneficial to purchase the business entity, as well.  For example, it may be beneficial to include the business entity in the transaction where its years in existence have great weight in the community and the buyer will be able to build upon that aspect.  Also, the business entity may hold non-transferable licenses, rights, or other assets that will be of great importance and value in the future.  In either case, the importance of engaging experienced counsel and performing due diligence is similar to investing in a business and should not be overlooked.

While purchasers and investors both are entitled to rely on certain representations of the seller, Florida law has grown increasingly complex as to whether the reliance is justified and proper and to what degree it impacted or even obviated the investor’s obligation to verify the information.  Relying entirely on representations of the business without performing any independent verification may place the investor or buyer in a precarious position later and cause that party to incur substantial litigation expenses that it might otherwise have avoided.  Those who fail to conduct any pre-purchase investigation fall within the saying “those who fail to plan, plan to fail”.  Thus, the best initial approach after identifying either an investment or purchase opportunity is to engage the services of qualified experts to assist in the due diligence process and identify those representations on which the investor or buyer might want to focus.

As with most matters, one important action to undertake from the beginning of the transaction is to maintain clear records, particularly of any representations made by the seller to induce the investment or purchase.  What any investor or buyer should know is that Florida law distinguishes between certain representations that can be deemed opinions from those that are material and false or fraudulent.  In certain situations the buyer may not be able to uncover such deception through its due diligence as the true facts may be well disguised by the seller.  If it later becomes necessary to engage the seller in litigation over the representations, proper and thorough documentation from early in the process will greatly aid the buyer or investor in presenting a full and complete picture to the Judge or jury.  Experienced business attorneys can provide assistance and guidance on this documentation.

It is also equally important to clearly document the closing of the transaction.  By so doing, the parties can have a clear understanding of the scope of the transfer and make it easier to enforce their rights if need be, post-closing.  For example, closing on the purchase of business assets without properly defining them can cause confusion later and spark a dispute that was avoidable through clear documentation.  Seeking and obtaining proper counsel and advice from a Florida-licensed attorney with experience and expertise in business law early and throughout the process can increase the chances of having a trouble-free transaction.

The Florida Bar recognizes those attorneys who are experts in the business litigation field with Board Certification in Business Litigation Law.  To attain such recognition, attorneys must try a certain number of jury and non-jury trials, pass a comprehensive examination, and receive satisfactory reviews from their peers and Judges before whom they have practiced.  A complete listing of Board Certified attorneys in Business Litigation Law and other areas is available on the Florida Bar’s website at www.flabar.org

What Are Interrogatories, Requests to Produce, and Admissions?

What Are Interrogatories, Requests to Produce, and Admissions?

In civil lawsuits, the parties obtain and exchange information in a process called “discovery”.  This is very different from criminal cases where the police investigate and the prosecutor brings a case based on that evidence and has to disclose it to the defense.  In civil cases, the proponent of an allegation has the obligation to devleop the evidence to prove that allegation and obtains it through the process of discovery.

Discovery in civil disputes takes on two basic forms; what lawyers call “paper discovery”, and the “other stuff”.  Paper discovery actually isn’t paper anymore, but it is the series of requests provided for by our Florida procedural rules that includes interrogatories, requests to produce, and requests for admissions.  The “other stuff” is discovery aside from these requests, such as depositions and inspections of property or equipment.

Interrogatories

Interrogatories are only exchanged between the actual parties in a lawsuit, i.e. plaintiff and defendant.  They essentially are just written questions to the other.  They are limited in number, but Judges usually allow more if there is good reason.  A party’s lawyer will normally draft the answers with the party and they are sworn to under oath.

Requests to Produce

Requests to produce ask for documents or categories of documents, including electronic documents and data.  In addition to being directed at the other party in a suit, in a slightly different form, they can also be used to non-parties so they don’t have to appear at a deposition just to deliver documents.  Unlike interrogatories, these are not limited, but your lawyer will first assess whether there are objections to the requests and what should be produced.  Because these are regularly used in lawsuits, this is why parties can not now just delete data or throw away computers or devices when they are served with a lawsuit or litigation hold notice.

Requests for Admissions

Requests for admissions, like interrogatories, only go between the parties.  They ask a party to admit or deny some specific fact so it doesn’t have to be proven later.  Again, these are to be answered with your attorney as they have far-reaching implications in a case.  Admitting a fact admits it for all purposes, but wrongfully denying a fact carries consequences as well.  Therefore, the best person to assess these requests with you is obviously your attorney.

Timing of Discovery

Sometimes these discovery requests will come with the lawsuit.  In such scenario, you want to be sure to provide those to your attorney and let him or her know that you received those with the suit.  For certain requests, admissions for example, failure to timely respond can actually admit the requests so you don’t want to leave your attorney in the dark and think those requests don’t matter.

There is no right or wrong time to employ these discovery requests either.  Sometimes they are done at the beginning of the suit, sometimes toward the end, sometimes they are used several times in different phases of discovery and sometimes they are even coupled with other discovery mechanisms like depositions.

The Takeaway

The takeaway is that parties in a civil lawsuit use discovery to gather evidence to prove their case and the Florida Rules of Civil Procedure dictate what discovery mechanisms are available.  Therefore, someone who intimately knows those Rules should be in your corner drafting and responding to discovery requests.  Going it along is not a good idea and you know what they say about those who represent themselves. . .

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.thepalmbeachbusinesslawyer.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments and also teaches Judges, lawyers, and paralegals how to perform e-discovery.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at thepalmbeachbusinesslawyer.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905

What To Do If You Get A Litigation Hold Notice?

Run !  Kidding.  First thing you should do is contact counsel.  A litigation hold notice is something new in Florida.  It basically says, hey, I might sue you so don’t press that delete button on your computer.  The notice can’t say keep everything indefinitely; it has to be useful and as specific as is reasonably possible.  The purpose is to put people and businesses on notice that data, which is very easy to delete or destroy, might be needed in a dispute.  The downside to ignoring such notice can be very severe.

Litigation holds developed in the past decade or so in Federal practice as more businesses transitioned to electronic data from paper.  Because electronic data is capable of destruction or deletion, the legal industry developed a response that fairly placed parties on notice to keep certain data.  That, of course, doesn’t prevent the recipient of the notice from asking the provider to pay for the storage or to even be more specific in terms of what is to be kept.

By their nature, lawsuits are adversarial processes, but in the world of electronic discovery or “e-discovery” as it has come to be known, professional cooperation among lawyers is mandatory.  Thus, responding to a notice and implimenting and managing a litigation hold is best left to qualified and experienced counsel who can navigate your business through the hazards on the road of e-discovery.

But, what happens if you disregard a litigation hold notice or don’t properly impliment a hold?  The other side screams spoliation as it is called and the Judge has to hold a hearing or even series of hearings to evaluate whether spoliation actually occurred, the impact of it, and an appropriate sanction as a response.  Sanctions for intentional spoliation are naturally more severe that those for inadvertent destruction.  Sanctions are not limited and can range from adverse instructions to a jury telling them at the beginning of the case what one party did, to monetary punishment, to making the wrongdoer pay for recovery of the data, to restricting the wrongdoer’s ability to argue and put on evidence, to defaulting the offending party in certain circumstances.  Basically, failure to act on a litigation hold can result in lots of costs and fees and some form of punishment that can all be avoided by speaking to counsel early in the process to assess the notice and define responsive actions.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery in CLE courses.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com     Tel: (561) 316-7905.