A good attorney is an important piece of the start-up team and time needs to be set aside to select an attorney and formally establish the attorney-client relationship. Both the founding group and the attorney will want to enter into some form of agreement for services, such as an engagement letter, that sets out the scope of the representation, the fee arrangements, and billing procedures. While founders often view engagement letters as boilerplate contracts, the engagement process should be seized by both sides as an opportunity to delve into the scope and terms of what inevitably turns into a significant relationship and achieve a meeting of the minds regarding the goals of founders and their expectations regarding the services to be performed by the attorney. The table below, which appears in the Growth-Oriented Entrepreneur's Guide to Entrepreneurship available from the Growth-Oriented Entrepreneurship Project, provides a good checklist to guide founders and their attorneys in creating a powerful partnership.
Matters to Consider Regarding Scope and Terms of Attorney-Client Relationship
- Who specifically will be the client of the attorney? Attorney-client relationships may be created with business entities and/or with one or more of the individual founders of the entity and identification of the client is an essential step in identifying potential conflicts of interests.
- What are the goals of the founders with respect to the proposed engagement?
- What are the expectations of the founders with respect to the specific role the attorney will play with respect to achieving the company’s goals?
- What are the most significant risks and challenges that may undermine achievement of the goals set by the founders?
- What are the specific tasks and activities that will be expected of the attorney during the course of the engagement?
- Are there any areas of law and/or specific tasks or activities that are outside the competence of the attorney? If so, the attorney should discuss alternative sources of services in order to achieve the client’s goals.
- What are the major responsibilities of the founders and the company with regard to the engagement? Among other things the founders and company should expect the need to fulfill certain duties relating to payment of bills on time; providing certain information to the attorney; completing specifically identified portions of the work which is the subject of the engagement; and keeping the attorney informed about the company's address, telephone number and whereabouts so that the attorney can fulfill his or her duties.
- What is the schedule, if any, for completion of the work, including any significant deadlines?
- What will be the fee arrangements and billing procedures, including responsibility for expenses incurred by the attorney in the course of performing the services?
- What will be the understanding of the parties with respect to procedures for discharge and withdrawal from the engagement?