A few months ago, I had the pleasure of being interviewed by the National Association of Productivity and Organizing Professionals (NAPO) for it’s podcast series. My topic was Let Go to Grow: Focusing on Your Strengths. Below is a description of the podcast interview, as well as a play button for you to listen in. Hope it helps you in your business!

NAPO Podcast: Let Go to Grow – Focusing on Your Strengths

If the legal aspect of starting or growing your business has you intimidated, lost or overwhelmed, we have got the expert for you. From legal documents to the ins and outs of everyday business, today’s expert has us covered. With a background as an attorney, mediator and trainer of entrepreneurs, Lisa Montanaro is a sought after business expert. She is the owner of Lisa Montanaro Global Enterprises, the umbrella organization under which she offers productivity consulting, success coaching, business strategizing and speaking to individuals and organizations. Lisa is an inaugural certified professional organizer and a member of the Golden Circle of the National Association of Productivity and Organizing Professionals.

What you’ll learn about in this episode:

  • Transitioning from another career into professional organizing
  • Pros and cons of subcontracting under established organizers when you are just starting out
  • Great PR starts with believing in what you do, then letting media and other influencers know about it
  • How to grow a speaking and productivity coaching business
  • Tips on getting your name out there when you move to a new area
  • How raising your profile begets more opportunities to raise your profile
  • Understanding different kinds of legal business entities and which one is right for you
  • How to protect both yourself and your client in a business relationship “Let go to grow”
  • Why delegating and outsourcing tasks is a path to exponential growth in your business.

NAPO Podcast

Is the Threat of a Lawsuit a Real Fear?

As a small business owner, you may be one of the 48% concerned about frivolous or unfair lawsuits.  According to the U.S. Chamber Institute for Legal Reform, actual lawsuits and the fear of lawsuits cost U.S. small businesses $98 million in 2005.  That figure may seem large because it includes money spent on damage awards, settlements, legal costs, liability insurance premiums, and costs incurred by insurance companies on behalf of policyholders.  Is the fear of lawsuits a real fear?  Unfortunately, yes.  Anybody can sue anybody over anything at any time.  In reality, 46% of small business owners have been threatened with a lawsuit, 34% have been sued in the past 10 years, and 62% have made business decisions to avoid lawsuits.  Indeed, small businesses bear 69% of the total cost of the tort system to all U.S. businesses.

What is the Best Course of Action?

What’s a small business owner to do?  For starters, realize that the best defense is a great offense.  While most small business owners fear the law, it is much wiser to use the law as a protective shield.  There are many business and legal components that contribute to creating the strongest shield possible – business entities (the type of structure that governs your business), insurance, and intellectual property (copyright, trademark, patent, and trade secrets) to name a few.

As a former full-time practicing attorney and now a small business owner, I have been on both sides of the fence when it comes to the legal issues a business owner may face.  It is imperative that organizers understand the basics of the legal side of running an organizing business, and how to use the law as a shield to protect yourself and your business.

Creating a Shield Through Business Structure

The first item an organizing business owner should consider is the structure of the business.  There are 4 basic types of business entities: sole proprietorship, partnership, corporation, and limited liability company.  A common misconception of small business owners is that the business entity itself always creates a legal shield.  In some instances (a corporation, or limited liability company, for example), this is generally true.  However, if you are a sole proprietor (and, if so, you are not alone, as 78% of all small businesses in the U.S. are sole proprietorships), then you essentially have no shield.  As a sole proprietor, you are personally liable for all business debts and other obligations.  Fortunately, the law is not the only means to create a shield to protect your business.  If the business entity itself does not provide a shield, then you can create one by acquiring appropriate and adequate insurance coverage.  Thus, a sole proprietorship that is adequately protected by insurance may have an effective shield.

In the case of partnerships, another misconception is that the partnership is a distinct legal entity that provides a shield.  A partnership is essentially a sole proprietorship run by two or more individuals.  Thus, the structure itself provides no shield.  Again, insurance can be used to fill in the gap, and/or a different business entity can be chosen.  For example, did you know that you can create a corporation and the same two people that would have created a partnership will now be shareholders?  What about a limited liability company with more than one member?  There are many ways for two or more individuals to own a business together.  Carefully consider which makes the most sense, not only from an operations and decision-making standpoint, but to garner the most legal protection for the owners involved.

Even with corporations and limited liability companies, there are limits to the force of the shield.  Simply creating a business entity is not enough.  The business must be operated as a distinct legal entity, including refraining from co-mingling of personal and business funds, keeping personal guarantees on behalf of the company to a minimum, maintaining corporate/business records, and paying business-related taxes.  If the business entity is a sham or the owner does not follow the rules in terms of keeping the business shield up, the legal doctrine of “piercing the corporate veil” may be applied by a court if the business is sued.  Piercing the corporate veil allows a litigant to pierce the business structure and reach the owner personally.  Granted, piercing the corporate veil is only applied in very limited situations, but it should be used as a reminder to keep that shield up at all times when it comes to operating your organizing business as a distinct legal entity.

Creating a Shield Through a Written Client Agreement

As an organizer, when you agree to perform services for a client, and the client agrees to pay you for such services, you and your client have entered into a legal contract.  The terms of the contract, however, are difficult to recall and prove unless in writing.  A written contract is pivotal as it puts clients on notice of business policies and terms, sets a professional tone, promotes consistency of policies, and is legally enforceable in court (the decision whether to sue a client to enforce a contract is, of course, a business decision, as well as a legal one, and should be carefully considered).  The contract, thus, helps to prevent misunderstandings and clearly defines the expectations of the parties.

Some organizers choose not to use contracts for fear that a written agreement may be too formal or legal in nature and, thus, may scare a client away.  Again, this is a business decision that should be given consideration, and you should determine if this is a real or imagined fear by communicating with your clients to test the waters.  You can also use a “letter agreement,” which may be less intimidating for residential clients.  In the corporate organizing arena, a written contract is generally expected.  Another disadvantage of using a written contract is the cost of creating and advising if you use an attorney.  While there are standardized contract forms available online and in books, be careful not to accept such standardized forms carte blanche.  I often see small business owners fail to adapt contracts appropriately, which causes embarrassing typos, inappropriate clauses, and general confusion.  Not only does this look unprofessional, but in extreme cases it can also result in unenforceability of the contract in court.  Therefore, it is a good idea to have a business lawyer review the agreement to make sure it adequately protects you, contains the relevant terms, and fulfills the goals you want to accomplish.  It is an expense worth paying for to secure adequate protection in the long term.

A word of caution: stay away from “legalese.”  Use plain English so that the agreement is easy to understand and helps, rather than hinders, the understanding between you and your clients.  If you do use a client agreement, here is a list of sample clauses you should consider including:

  • Definition of the parties (define your status as an independent contractor if the contract is for corporate organizing);
  • Services to be performed;
  • Code of ethics;
  • Confidentiality;
  • Pricing and payment policies (pricing structure, retainer guidelines, travel time or expense, shopping charges, cancellation policy, when payment is due, fee for bounced check, credit card acceptance, payment of expenses, etc.);
  • Provision of materials, equipment, and office space;
  • Assurance of insurance coverage;
  • State law governance;
  • Permission to take and use photos;
  • Term of agreement/termination of relationship.

Now, go forth with shields raised!

The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered.  For a comprehensive overview of legal issues involved in running an organizing business, refer to the CD “Navigating the Legal Landmines of an Organizing Business”  from the 2008 NAPO Conference in Reno, NV. 

Contact Lisa Montanaro by visiting www.LMOrganizingSolutions.com, by email at , or by phone at
(845) 988-0183.

This article originally appeared in NAPO News, Volume 23, Number 4, September 2008
Copyright © 2008 Lisa Montanaro of LM Organizing Solutions, LLC.

Want to Use This Article in Your E-zine or Website?

You can, as long as you use this complete statement:

Copyright 2008. Lisa Montanaro is a Productivity Consultant, Success Coach, Business Strategist, Speaker and Author who helps people live successful and passionate lives, and operate productive and profitable businesses. Lisa publishes the monthly “DECIDE® to be Organized” e-zine for success-minded individuals, and “Next Level Business Success” e-zine for entrepreneurs. Subscribe today at www.LMOrganizingSolutions.com. Lisa is the author of The Ultimate Life Organizer: An Interactive Guide to a Simpler, Less Stressful & More Organized Life, published by Peter Pauper Press. Lisa also publishes the DECIDE® to be Organized blog at www.DecideToBeOrganized.com. Through her work, Lisa helps people deal with the issues that block personal and professional change and growth. To explore how Lisa can help take your business to the next level, contact Lisa at (845) 988-0183 or by e-mail at .

When an entrepreneur starts a new business, one of the first decisions he or she is confronted with is the choice of business structure. This decision can be ongoing. As your business grows and changes, you may struggle with what is the best business structure at each stage.

There are a wide variety of business entities to choose from and they vary from state to state. Which type of entity you choose will have a significant impact on your exposure to liability, your responsibilities as the business owner, and the taxes you and the business will be responsible for paying. Each type of structure has advantages and disadvantages, and should be chosen with care after consulting a business or legal professional.

Regardless of business structure, one of the most common mistakes business owners make is to believe that the entity they choose will provide unlimited legal protection. Yes, many of the business structures offer legal protection in the abstract, a sort of legal shield, so to speak. However, reality can be quite different. Your legal protection is dependent on whether you honor the structure. Simply filing the requisite documents establishing the business is insufficient to truly protect the business owner. The business owner also must operate the business as a distinct entity from him- or herself.

To start with, a basic rule of business ownership is the rule against the co-mingling of personal and business funds. It is vitally important for the business owner to keep his or her personal funds separate from the business accounts. This sounds so simple and, yet, many entrepreneurs co-mingle funds, rendering legal protection meaningless in the extreme. There is a legal doctrine called “piercing the corporate veil,” which allows a litigant to actually pierce the business structure of the entity being sued, and make a claim against the individual owner and his or her personal assets. This doctrine is only applied in the extreme, but it is an important doctrine to use as a litmus test when operating a business. One of the biggest factors a court will consider when deciding whether to “pierce the veil” is whether or not the business owner has co-mingled his or her personal and business funds. Rule of thumb: Keep them separate!

Another common mistake made by business owners is the failure to adhere to the legal formalities required of whatever type of business entity they chose. If you do not treat the business as a separate entity, then a court may not do so either. Alas, the protection you thought you had been entitled to may no longer exist! One of the easiest ways to treat the business as separate is to maintain great business records. If you are required to keep minutes or show proof of an annual meeting for your corporation, do so. If you are required to maintain proof of business expenses, make sure you have those documents and can find them (a good professional organizer can work wonders here!). In other words, create the paper trail required by law. That paper trail serves as strong evidence that the business is, indeed, a real business.

Choosing a business entity that offers valuable tax advantages and protection from personal liability is important. However, make sure you go beyond that and treat your business as the distinct entity it is in order to maintain the privilege of protection from liability that the law offers. As they say, it is better to be safe than sorry, or worse, personally liable.

 

Is the Threat of a Lawsuit a Real Fear?

As a small business owner, you may be one of the 48% concerned about frivolous or unfair lawsuits.  According to the U.S. Chamber Institute for Legal Reform, actual lawsuits and the fear of lawsuits cost U.S. small businesses $98 million in 2005.  That figure may seem large because it includes money spent on damage awards, settlements, legal costs, liability insurance premiums, and costs incurred by insurance companies on behalf of policyholders.  Is the fear of lawsuits a real fear?  Unfortunately, yes.  Anybody can sue anybody over anything at any time.  In reality, 46% of small business owners have been threatened with a lawsuit, 34% have been sued in the past 10 years, and 62% have made business decisions to avoid lawsuits.  Indeed, small businesses bear 69% of the total cost of the tort system to all U.S. businesses.

What is the Best Course of Action?

What’s a small business owner to do?  For starters, realize that the best defense is a great offense.  While most small business owners fear the law, it is much wiser to use the law as a protective shield.  There are many business and legal components that contribute to creating the strongest shield possible – business entities (the type of structure that governs your business), insurance, and intellectual property (copyright, trademark, patent, and trade secrets) to name a few.

As a former full-time practicing attorney and now a small business owner, I have been on both sides of the fence when it comes to the legal issues a business owner may face.  It is imperative that entrepreneurs understand the basics of the legal side of running a business, and how to use the law as a shield to protect yourself and your business. 

Creating a Shield Through Business Structure

The first item a small business owner should consider is the structure of the business.  There are 4 basic types of business entities: sole proprietorship, partnership, corporation, and limited liability company.  A common misconception of small business owners is that the business entity itself always creates a legal shield.  In some instances (a corporation, or limited liability company, for example), this is generally true.  However, if you are a sole proprietor (and, if so, you are not alone, as 78% of all small businesses in the U.S. are sole proprietorships), then you essentially have no shield.  As a sole proprietor, you are personally liable for all business debts and other obligations.  Fortunately, the law is not the only means to create a shield to protect your business.  If the business entity itself does not provide a shield, then you can create one by acquiring appropriate and adequate insurance coverage.  Thus, a sole proprietorship that is adequately protected by insurance may have an effective shield. 

In the case of partnerships, another misconception is that the partnership is a distinct legal entity that provides a shield.  A partnership is essentially a sole proprietorship run by two or more individuals.  Thus, the structure itself provides no shield.  Again, insurance can be used to fill in the gap, and/or a different business entity can be chosen.  For example, did you know that you can create a corporation and the same two people that would have created a partnership will now be shareholders?  What about a limited liability company with more than one member?  There are many ways for two or more individuals to own a business together.  Carefully consider which makes the most sense, not only from an operations and decision-making standpoint, but to garner the most legal protection for the owners involved.   

Even with corporations and limited liability companies, there are limits to the force of the shield.  Simply creating a business entity is not enough.  The business must be operated as a distinct legal entity, including refraining from co-mingling of personal and business funds, keeping personal guarantees on behalf of the company to a minimum, maintaining corporate/business records, and paying business-related taxes.  If the business entity is a sham or the owner does not follow the rules in terms of keeping the business shield up, the legal doctrine of “piercing the corporate veil” may be applied by a court if the business is sued.  Piercing the corporate veil allows a litigant to pierce the business structure and reach the owner personally.  Granted, piercing the corporate veil is only applied in very limited situations, but it should be used as a reminder to keep that shield up at all times when it comes to operating your organizing business as a distinct legal entity.

Creating a Shield Through a Written Client Agreement

When you agree to perform services for a client, and the client agrees to pay you for such services, you and your client have entered into a legal contract.  The terms of the contract, however, are difficult to recall and prove unless in writing.  A written contract is pivotal as it puts clients on notice of business policies and terms, sets a professional tone, promotes consistency of policies, and is legally enforceable in court (the decision whether to sue a client to enforce a contract is, of course, a business decision, as well as a legal one, and should be carefully considered).  The contract, thus, helps to prevent misunderstandings and clearly defines the expectations of the parties.   

Some entrepreneurs choose not to use contracts for fear that a written agreement may be too formal or legal in nature and, thus, may scare a client away.  Again, this is a business decision that should be given consideration, and you should determine if this is a real or imagined fear by communicating with your clients to test the waters.  You can also use a “letter agreement,” which may be less intimidating for clients.  In the corporate arena, a written contract is generally expected.  Another disadvantage of using a written contract is the cost of creating and advising if you use an attorney.  While there are standardized contract forms available online and in books, be careful not to accept such standardized forms carte blanche.  I often see small business owners fail to adapt contracts appropriately, which causes embarrassing typos, inappropriate clauses, and general confusion.  Not only does this look unprofessional, but in extreme cases it can also result in unenforceability of the contract in court.  Therefore, it is a good idea to have a business lawyer review the agreement to make sure it adequately protects you, contains the relevant terms, and fulfills the goals you want to accomplish.  It is an expense worth paying for to secure adequate protection in the long term.

A word of caution: stay away from “legalese.”  Use plain English so that the agreement is easy to understand and helps, rather than hinders, the understanding between you and your clients.  If you do use a client agreement, here is a list of sample clauses you should consider including:

  • Definition of the parties (define your status as an independent contractor if the contract is for corporate organizing);
  • Services to be performed;
  • Code of ethics for your professional association, if applicable;
  • Confidentiality;
  • Pricing and payment policies (pricing structure, retainer guidelines, travel time or expense, charges for supplies or products purchased on the client’s behalf, cancellation policy, when payment is due, fee for bounced check, credit card acceptance, payment of expenses, etc.);
  • Provision of materials, equipment, and office space;
  • Assurance of insurance coverage;
  • State law governance;
  • Permission to take and use photos for marketing purposes, if appropriate;
  • Term of agreement/termination of relationship.

Now, go forth with shields raised!