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Associations Now

When to Call a Lawyer

ASSOCIATIONS NOW, November 2010 Intelligence

By: Terrence F. Canela, CAE

Summary: Sometimes you need a legal expert, and sometimes other steps come first. Here's how to tell the difference.

If you are facing a challenging legal question and asking yourself "Do I really need a lawyer?" the answer is most likely yes. Often, businesses that choose to avoid attorney's fees now end up with costly mistakes and courtroom fees later. If there is a legal concern, the wisest course of action (which often saves money in the long run) is to check in with an attorney.

Talking with an attorney does not always mean putting an expensive law firm on retainer. It can mean short-term project work with a trusted source who can provide advice and prepare your business for what is next. Either way, be sure to do your homework and ask for an estimate up front.

While nothing in this article should be construed as legal advice for your specific situation or set of facts, here is some additional information to help you determine when it is advisable to bring in an expert.

My organization is being audited. First, talk to an accountant. If you think the taxing authority (federal, state, or municipality) may be coming after money you believe should not be taxable, that is when you should talk with an attorney.

I am considering whether to sign a complex contract. Generally speaking, the greater the complexity of a contract and the more money that's at stake, the more reason there is to talk to a lawyer. Even if there is no money involved, substantial risk to your organization can still exist. Does the contract involve the use of your organization's name and logo? Its mailing list? Time and resources?

An employee's not working out, and I need to terminate. Just one protracted lawsuit can eat up significant time and resources, not to mention emotional capital. Is this employee a member of protected class? Did the employee ever complain about a procedure or policy? Even in a voluntary separation, employees may claim their situation was so terrible that they had no choice but to quit.

I have been subpoenaed. Not all subpoenas necessarily obligate you to respond. Is the state from which the subpoena originates one in which your organization has contact? If not, you may be able to ignore the subpoena, subject of course to the advice of your attorney. If you are not sure if the information being sought is sensitive or proprietary, call your attorney.

My board wants to form a charitable foundation or a trust. Call a lawyer. Forming a separate organization can be tricky, and, as importantly, maintaining required operational formalities can be critical to the newly formed organization's tax status. Don't cut corners on this one!

I have been threatened with a lawsuit. When someone tells you "I am going to sue," or you are actually served with a court complaint, talk to your lawyer. It does not matter if it is one of your members, an employee, or a random member of the public—it's time to call an expert.

My organization wants a new logo and tagline. There are two points in this process where you might need an attorney: at the beginning and at the end. At the beginning, make sure that the logo, words, or phrase your organization has its heart set on doesn't infringe on an existing trademark. Depending on the type of logo and combination of words you have in mind, you can do a full trademark search with a third-party service provider (with or without an attorney) or do a simple quick search of the U.S. Trademark and Patent Office's website yourself. The former is infinitely more thorough and preferred.

Someone is embezzling money. Call your lawyer! If someone's stealing from your organization, criminal prosecution might be involved. There are many complexities on the accounting side, and with associations, certain sensitivities involving your member leaders, to whom you may need to ultimately disclose the theft.

I need to find a lawyer, but where do I start? Word of mouth is good place to start. Ask people you know and trust, through your association or other professional contacts. Your local bar association can also help.

Terrence F. Canela, Esq., CAE, is associate general counsel at the American Institute of Architects in Washington, DC. Email: tcanela@aia.org

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