General Practice, Solo & Small Firm DivisionBest of ABA Sections

Franchising

Make Way for Ducklings—Solo and Small Firm Practices in Franchise Law

These papers are designed to address the challenges of a franchise-related practice for solo and small firm practitioners. The papers reflect the individuality and personal perspectives of four authors who focused on:

Developing and Maintaining a Quality Franchise Practice.

This paper highlights the properties of a franchise practice philosophy, the methods behind development of a rewarding client base, and practice tips for ensuring client dedication.

Structuring a Small Practice for Success.

Managing and operating a small practice brings into play all of the factors required for any small business. Success is a function of an efficient infrastructure of management, finances, technology, and staffing. This paper covers the components of an infrastructure for a small practice, practice management issues, operational finances, staffing, technology, and equipment.

The Transactional Franchise Practice.

This paper features the personal observations, thoughts, and suggestions for the conduct of a transactional practice with an emphasis in the field of franchise and distribution law. Observations and thoughts cover the representation of both franchisees and franchisors.

Franchise Litigation in the Small Firm.

To compete, the small firm litigator must be organized for efficiency and must utilize personnel by delegating work in a cost-effective manner. This paper discusses competing with larger firms, case evaluation and economics, client services, and tips for organizing litigation.

The volume also features extensive exhibits, including a checklist of client sources, practice tools and suggested reading, engagement letters, a cost and fee estimate worksheet, and a franchise agreement checklist.

In the ever-evolving legal services market, an attorney must be able to distinguish himself/herself from all other practitioners ready, willing, and able to provide legal services to meet the needs of a prospective client. First, one must realize one’s own limitations. A lawyer cannot be all things to all people. It is imperative that a solo or small firm practitioner develop a network of other resources (attorneys, accountants, consultants, etc.). To be successful, an attorney must excel at communications and must develop a client-oriented bedside manner. Entrepreneurs, by their nature, are inquisitive. It is an attorney’s challenge to promote that inquisitive nature and create an open atmosphere by maximizing communications.

In establishing a paradigm of excellence, an attorney must develop and maintain an obsession for quality both in the representation of clients and the delivery of work product. Evolving a quality focus to one’s practice entails anticipation of client needs, providing effective counseling services, drafting quality documents that address the client’s needs, and realistic scheduling of client priorities. By continually educating the client, an attorney can often inspire the client to develop new operating procedures, new profit centers, or new approaches to the marketing and maintenance of a strong franchise system. And in so doing, an attorney becomes an indispensable resource to the client.

To develop a rewarding client base, a lawyer must get organized for client development, target client prospects, and above all, learn to retain clients. The delighted client is the attorney’s most effective marketing tool. Business-to-business referrals are of a high quality and are prescreened.

In recent years there has been a notable change in clients’ attitudes: Clients hire lawyers—not law firms. The personality of the practice becomes a critical factor in a client’s decision to hire counsel. Solo and small firm practitioners have flexibility to shape a favorable practice personality. By balancing practice constraints with genuine, caring legal service, a solo or small firm practice can be structured for success.

Delivery of quality legal services requires an infrastructure of good management, sound finances, utilization of technology, and an efficient, client-oriented staff. Good management includes allocation of work, quality control, training and supervision of attorneys and staff, development of specialization(s), and targeted marketing efforts.

Financing is the life-blood of any business. It includes bank accounts, time-and-billing, accounts receivable, accounts payable, cash flow, payroll, taxes, billing rates and practices, compensation considerations, and the budgeting process.

Staffing is an interesting dynamic in the operation of a business. People working with people can be the source of great satisfaction or troubling discord. Good staffing decisions go a long way toward creating a successful practice, and reflect the attorney’s personality and demands.

Technology is the great equalizer. Efficiencies resulting from implementation of technology advances can make small practice a viable alternative to the large firm for many clients.

Equipment ranges from pens and paper to the latest high-tech whiz-bang laptop computer. Knowing the difference between those that are a necessity and those that are a luxury may be the difference between a successful business and a financial disaster.

Frequently, attorneys in solo or small firm practice are intimately involved in each aspect of the practice. Perhaps because of this intimate involvement and the flexibility that an attorney in a solo or small practice enjoys, solo and small firm practitioners have produced most of the exciting and revolutionary ideas for changing the way law is practiced today. Each solo or small firm practitioner is urged, therefore, to mentor others.

It is not possible to practice successfully in franchising without developing a thorough forms library. The cost-effectiveness of delivering a finished product is greatly enhanced by development of comprehensive, well-prepared forms for franchise agreements; ancillary documents, such as leases, subleases, guarantees, confidentiality and noncompetition agreements; area development agreements; subfranchise agreements; area representation agreements; and offering circulars.

Representation of franchisors can be rewarding both professionally and financially. The franchise attorney should be prepared to take the client by the hand at the first meeting and walk the client carefully through a process of education, information gathering, preparation and delivery of franchise documents, and into a relationship where the client will seek continued advice. Additionally, the franchise attorney should be prepared to take on a franchisor midstream. This may require a significantly different approach to the relationship with the client.

Once engaged in the practice of franchise law, one is likely to have the opportunity to represent franchisees at both ends of the spectrum: at the beginning of the franchise relationship and at its end. Repre-sentation of franchisees requires a different mind-set than representing franchisors, but can be just as rewarding.

One of the most notable trends in the law today is towards specialization, and increasingly clients select their lawyers based on their area of expertise. As a litigator, the first question asked is, "Do you specialize in franchise law litigation?" Then the litigator is asked whether that representation is limited to franchisors or franchisees. The opportunity exists for small firms to carve out a specialty in franchise law. But, to compete with medium and larger firms, the small firm litigator must be organized for efficiency, and must utilize personnel and delegate work in a cost-effective manner. Small firms need to be aware of the latest trends and trial techniques. New matters must be carefully evaluated for their economic impact on the firm. Top quality work must be provided in a timely manner.

Litigation is expensive, and few franchisors, let alone franchisees, can afford or are willing to pay for litigation. When faced with a lawsuit, the client needs to be educated and reassured that he/she is getting the best help at the right price. Small firms can offer nearly as much in the area of litigation as the large firm can—and they must.

Excerpted from Make Way for Ducklings—Solo and Small Firm Practices in Franchise Law, a collection of papers presented at the 1995 Annual Forum of the American Bar Association Forum on Franchising.

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