“Care is an absolute. Prevention is the ideal.”
– Christopher Howson
At its core, Preventive Law is about helping businesses look around corners and anticipate business and legal risks before they materialize. Using the preventive medicine analogy, it’s like a physical for your business during times of health designed to discover and treat areas of potential “disease.” Preventive Lawyers aim to keep their clients healthy . . . here are the top five items they address to ensure long-term business health:
Businesses are often required to enter into numerous agreements with everyone from purchasers and distributors to vendors and suppliers. It’s amazing how many businesses do not have formalized processes for reviewing, negotiating and developing these contracts. Instead, several individuals in several different departments are given free rein to sign anything as a matter of “routine business” without fully understanding the exposure to the company.
Preventive Lawyers are adept at reviewing contracts with key third parties and then helping you understand potential areas of concern warranting further attention. Opportunities for further negotiation or clarification can then be explored with the other side . . . especially if that legalese contract hides unrealistic liabilities or impossible performance items within the fine print!
Prospectively, the Preventive Lawyer can further help your company develop pre-qualification and contracting policies and procedures to minimize being blind-sided, including:
Ensuring these third parties have appropriate safety qualifications and insurance levels;
Preparing a standard set of contracts favorable to you, which can then be tailored and used in different settings (instead of simply reacting to the other side’s forms); and
Identifying and training the appropriate manager(s) to own the contracting process.
Business Governance and Due Diligence
Your business may be a corporation, limited liability company, or some other form of legal entity. Most such entities have formalities that must be followed. If they are not, a whole host of problems can arise, including:
Void or voidable business transactions;
Potential violations of legal duties owed to other shareholders;
The ability of third parties to disregard the business structure and go after you individually; and
Remember, what may seem fair to you is not necessarily what is required under the law. Preventive Lawyers can help you understand the difference, and then take steps to make sure your business is running on all cylinders in accordance with the law.
Speaking of business transactions, appropriate due diligence is a necessary component of entering into significant acquisitions. Sometimes things progress so quickly that important items are missed or overlooked. It is critical that businesses be proactive during these transactions to determine potential exposure to avoidable risks.
If your business is acquiring another business, you should be reviewing and analyzing things like the target’s business records, financials, agreements, insurance policies, compliance policies, intellectual property, licenses/permits, leases, assets, liabilities, claims and litigation (among other things).
If you are acquiring real estate, you need to understand potential risks such as title, zoning and environmental concerns, as well as any maintenance or structural issues that could run with the property.
Preventive Lawyers are skilled at analyzing these documents and then identifying issues warranting further investigation so a business decision can be made about whether to gather more information or proceed to closing. And when a project is green-lighted for closing, the Preventive Lawyer can further assist in advocating and negotiating positions when necessary, as well as developing the necessary agreements to take the transaction through closing (hint, see above contract skills!).
Compliance Policies and Training
All businesses are required to adhere to some level of compliance obligations whether legal, regulatory or contractual. It is important to fully understand these obligations and the possible repercussions you could face if the requirements are not met. While I don’t want to be a fearmonger, the importance of being proactive and the possibility of exposure in these scenarios is just too critical. Believe me, I’ve seen it all.
Here are just a handful of examples:
Failure to comply with employment laws can lead to EEOC investigations, claims and lawsuits.
Failure to comply with product-based regulations could result in sanctions, including removal of your product from the market.
Failure to comply with cybersecurity laws could mean sanctions and other losses in the event of a data breach.
Failure to comply with contract provisions can lead to withholding of key supplies or even lawsuit.
Failure to comply with antitrust or anti-corruption laws could result in a visit from the Department of Justice.
Preventive Lawyers help their clients avoid exposures like these by identifying key compliance issues facing your company, and then working with your company to develop and implement policies to address these issues. This includes training executives and managers to ensure enterprise-wide understanding and acceptance of these policies and procedures.
Insurance and Litigation Management
Oh, insurance . . . the necessary evil. Insurance contracts are often labyrinths of legalese mumbo-jumbo, likely filed away somewhere in your office collecting dust. Many businesses purchase these expensive policies without fully understanding the coverage terms and requirements (this is especially true for businesses with global supply chains, cybersecurity risks and employment exposures).
Imagine your company suffers a loss you expect to be insured but your claim is denied. You’re left feeling frustrated and helpless, wondering where you went wrong. Perhaps you inadvertently hadn’t selected a particular line of insurance you ultimately needed, or maybe the type of event was listed as an exclusion in the fine print. Maybe it’s denied because of timeliness. Or, perhaps it’s based on the insurer’s interpretation of a particular provision or exclusion that was tucked deep inside that maze. The consequences could be severe but can be avoided.
Now, imagine a case where your claim is accepted but requires litigation. Your insurer will likely assign one of its lawyers to defend you, which is all hunky dory, right? Not so fast. Without proper oversight, the insurer-counsel dynamic can lead to litigation strategies which are not in your best interests. I’ve seen too many scenarios like this throughout my career (and have represented all sides) where the insured’s interests were the last being protected. Unfortunately, this leads to skyrocketing premiums at renewal or worse . . . loss of insurance coverage altogether.
Preventive Lawyers are skilled at managing and negotiating your company’s relations with insurance brokers and carriers so your insurance program is appropriately reacting to your particular business risks. And when the time comes, Preventive Lawyers can further assist in asserting claims and managing those lawyers retained by the insurers to ensure that business-forward, cost-effective legal strategies are being implemented.
Day-to-Day Business and Legal Strategies
Doing my best Cliff Clavin impression, it’s a little-known fact that lawyers undergo a bloodless lobotomy during their three years in law school. This “procedure” results in a unique style of critical thinking that can be of great benefit to your business.
Lawyers are often ridiculed for the frequency they say “NO!” to any business decision-making which involves some level of risk. However, seasoned Preventive Lawyers are business-forward in their approach, seeing risk as an opportunity to negotiate and make better-informed decisions. Their goal is not to be a hindrance, but rather to help you know what you didn’t know before, and then develop more informed business decisions and strategies based on this information. In this methodical way, Preventive Lawyers can be a valuable sounding board when it comes to business dealings and negotiations.
The best Preventive Lawyers further understand that their guidance should be cost-effective, and have developed progressive retainer models fostering improved access. For businesses seeking to be proactive about maintaining their health, but are not interested in traditional billing models of big law firms, Preventive Law practices can be a strong alternative.
KEEFER is your ounce of prevention.