Post Category → Startup Lawyers

Startup Law Hack: Get to Know Your Associate

One common gripe that you’ll hear around the startup community is that a startup using a large law firm will simply be “thrown to a junior associate.”  If you’ve read my post “In Startup Law, Big Can Be Beautiful” you’ll understand my perspective on this.

Junior associate can mean someone who is truly clueless about what they are doing.  But with the right firm, it can also mean someone who:

  • has been assigned tasks appropriate for their skill level, with senior-level oversight
  • has access to other more experienced (read: expensive) attorneys when they’re actually needed
  • has access to institutional knowledge and resources within the firm to efficiently handle most of your basic needs, and
  • because they are early in their career, will be much easier to get ahold of than a senior attorney managing dozens of much larger clients.

Much like how properly-run hospitals efficiently distribute work, with the assistance of technology, between specialists, general practitioners, nurse practitioners, etc., you won’t find any problem with being assigned (not dumped) to a junior associate if the firm you’re working with knows what its doing.  You’ll get better service because of it.

The logical conclusion of this is, when you approach a firm, you should care just as much about the junior associate assigned to your company as you do about the partner/senior attorney.  Research their junior associates, and don’t be afraid to request one.  This will probably surprise the firm a bit, but there’s nothing wrong with making sure you are well served both at the senior and junior level.  Within any firm, there can be wide variance between associates who are there just trying to earn a paycheck and pay off debt, and those who love working with entrepreneurs and have the credentials to show it.

The Ad Hoc Law Firm?

The other day I wrote a post, In Startup Law, Big Can Be Beautiful, in which I reflected on the trend of boutique law practices popping up in the startup space, and whether large law firms really are as out-dated in this area as today’s zeitgeist would suggest.  One theme of the post was the notion of startup law being integrated, much like healthcare, in the sense that input from many specialists is often required to provide proper counsel to a client.  Boutique practices are obviously at a disadvantage in this respect because their whole model is built around not having teams of lawyers in dozens of specialties under the same roof: they call this “overhead.”

I recently came across an article with an extremely interesting concept: the ad hoc law firm. It talks about how solo practitioners and boutique practices, at least in some areas, are creating networks through which they can consult with one another and scale when required, but operate independently when not.  From a theoretical and economic perspective, this certainly sounds like the best of both worlds: you have capacity equivalent to a large firm built into your network with specialists and generalists on call when needed, but you only pay for what you use.

I posted a question on quora, which unfortunately no one has answered, asking what sorts of process boutiques and solos have in place to make this kind of system work.  The area that really interests me is how technology can be used to facilitate this concept.  Right now it seems that most boutiques simply call a specialist when they need one, and then begins a process of probably checking conflicts and transferring the necessary documents over.  Consulting outsiders seems to carry far more friction than it would inside of a firm.

But what if all the boutiques/specialists in this “network” operated on the same platform, and scaling was simply of matter of “inviting” others to a particular deal, much like you invite someone on LinkedIn or Basecamp. A few clicks and all the requisite checks and file access could happen automatically.  Going one step further, what if these networks had a shared document management system, through which they could share work-product with one another? That would address another advantage mentioned in my post: that volume and experience curves favor large firms.

That sounds like a powerful idea, and if someone’s not working on it already, there’s an enormous market opportunity to be grabbed.  Cloud-based law practice services like Clio and Lawloop are well-positioned to go after this, but right now it seems they’re focused more on connecting attorneys within a single firm.  Some form of Google+-esque granularity would need to be built in to accommodate a wider network.

The Founder’s Stock Issuance

There’s a lot of uninteresting formality that goes on in a startup’s corporate formation, most of which founders rightfully ignore because they have better things to worry about.  But there’s one document that pretty much every founder will make sure to ready carefully – or at least ask lots of questions about: the Founder’s Restricted Stock Purchase Agreement (or some variant of that name).  Here’s a quick outline that an entrepreneur might use to walk through the document:

General Themes: We (1) want to make sure the Company owns all IP; (2) want to incentivize the founder to stay with the Company and add value; and (3) if the founder leaves the Company or someone else gets ahold of the shares, we want to be able to get them back so no one who isn’t involved with the Company has voting power.

  • Number of shares and nominal price – Most of the time the stock is sold at par value, which will be a fraction of a cent.  Because the Company is at the very beginning stages and extremely risky, placing this miniscule value on the stock usually isn’t considered problematic.
  • IP Assignment – In exchange for the issuance of stock, the founder assigns all rights to the IP that he/she may have with respect to previous work.  Look for a very long definition of what constitutes Company IP.
  • Repurchase Right – This is where you’ll find the vesting schedule.  Nutshell: a mechanism to require the founder to earn the shares over time, and giving the Company the right to get the shares back if anyone leaves.  Explaining that in more detail would take too long for this post, so just click that link.  Unless a founder’s gone solo, there should be a vesting schedule in the document.  If not, fire your lawyer, or get one.  Also useful: Vesting Calculator.  You’ll also likely sign some form of Assignment that gives the Company the administrative ability to exercise this right.
  • Acceleration of Vesting – Upon certain events, usually termination of the founder, a Change in Control (think acquisition), or both, a certain percentage of the stock’s vesting is “accelerated.”
  • Miscellaneous Securities Law Reps – Lots of stuff thrown in by lawyers to ensure that the document doesn’t violate any securities laws.
  • Right of First Refusal – Basically, you can’t sell the shares to anyone without the Company first being able to buy them on the same terms.  Meant to keep shares from getting into the hands of strangers.
  • Divorce/Separation Repurchase Right – If you divorce or legally separate from your spouse, and such spouse happens to get ahold of some shares, the Company has the right to buy them back.
  • Death Repurchase Right – This is somewhat more optional and language varies, but still quite common.  If the founder happens to pass away, the Company has the ability to repurchase shares at fair market value to prevent them from being transferred to the founder’s heirs, devisees, etc.
  • Transfer Restrictions – General restriction that you can’t transfer the shares other than through a “Permitted Transfer” (or some variant of that term), which usually includes gratuitous transfers (not sales) to immediate family and affiliate entities, and requires consent of the Company.
  • Escrow of Shares – The Company (actually their attorneys) will hold on to the actual certificates of the shares and handle administrative matters related to them.  This helps the Company enforce the transfer restrictions and other covenants in the document, and for future diligence purposes it just makes it easier to have them in one central place.
  • 83(b) Election Language and Form – Here’s an explanation.  You have 30 days from the issuance of the shares. It keeps you from being taxed as your shares vest.  Do it, or you’ll be sorry.
  • Compensation Agreement/701 Language – In a nutshell, all share issuances need to qualify for a securities exemption in order to avoid having to “register” the shares, which is crazy expensive.  Rule 701 is one such exemption, and it requires that the shares be issued as compensation – in this case they’re being issued in exchange for IP and past service – not for an investment.
  • Spousal Acknowledgement – Your spouse acknowledges all of the restrictions in the agreements, agrees to be bound by them if he/she ever gains ownership of the shares, and gives you (founder) the right to act on his/her behalf with respect to shares.  This makes sure community property won’t muck up the ownership and that nobody has to ask your spouse for permission to vote the shares or do anything else with them.

Obviously, to make all of these provisions work together there will be lots of extra detail providing processes for exercise, waiver, notice, and explanations for how each provision interacts with the other.  The devil is definitely in the details, and, if you’re working with a reputable firm, this document will have been screened by specialists in tax law, employment law, IP, etc. to ensure that they pass legal muster.  A lone generalist with no outside input can be dangerous.