This article was originally published on page 40 of October 2018 issue of XBiz World.
It is extremely important to have an attorney on your team. Although it might be tempting to forgo the expense, typically, it’s much cheaper to prevent an issue than to have to fix it. Hiring a lawyer can seem intimidating though. Like a first date, it’s an interview process. Here are some tips for making the process efficient and effective.
It’s essential to appreciate that there are many potential legal pitfalls of doing business in the adult industry. Without sound legal advice, you could run into regulatory issues, such as with OSHA for failing to follow proper health and safety procedures. You could find yourself liable for copyright infringement committed by third party users of your website because of deficient DMCA practices. Finally, you could wind up with the feds literally knocking at your door for violations of the record keeping law known as “2257.” These are examples of issues that can be thwarted if you consult with a lawyer ahead of time. I don’t say this to scare you, but instead to show you how smart it is to make an investment into strategizing with an attorney at the outset.
Before you hire an attorney, you’ll usually have an initial consultation with him or her. This is the time for you to start to get to know the attorney and for the attorney to get to know you and your business. During this meeting, it’s very much encouraged to ask questions.
You’ll want to make sure that the lawyer is friendly to the adult space. Ask whether s/he has worked with people in the adult industry before. Ask how s/he feels about seeing explicit images if, for example, your business is in porn. Ask whether s/he is comfortable discussing and writing about sexual topics if, for example, you are hiring him/her to draft a patent application for a new Sex Tech product.
Inquire with the attorney about his/her experience with matters you’re dealing with currently or might come across in the future. Incorporating a new online ad business, preparing a copyright application for a porn video, or handing a contract negotiation with novelty manufacturers overseas each require different skill sets from an attorney. It is certainly possible for one person to have them all, but you should check up front to get clarity on the subjects with which the lawyer can and can’t help you.
In some cases, you may need specialist attorneys for different areas, such as one for general business, another for litigation, and yet another for trademark filings. Although this may sound daunting and pricey, it can be very worthwhile when all is said and done. After all, for medical problems, you go to an ophthalmologist for your eyes while you go to a cardiologist for your heart. In law, sometimes it is no different. Make sure the person you hire is competent to handle the issues you’re going to be facing.
In addition, sometimes the best person for the job may not be located near you. However, today, in the golden era of the Internet, it’s not critical that your lawyer be in close geographical proximity unless you are involved in litigation and the attorney will need to attend court appearances. You can have effective meetings, including the initial one, with your attorney via phone or video conference. In between those meetings, it is easy to correspond via email. Still, it’s completely understandable if you want to be able to meet in-person with your lawyer. If that is the case, unless your coffers are big enough to pay travel expenses for yourself or the lawyer, you may want to look for a capable attorney in the vicinity of your geographic location.
A lawyer that you hire owes you attorney-client privilege. Accordingly, after you sign a letter of engagement, whatever you say should be held confidential, allowing you to be forthcoming with information – both positive and negative – about your case. However, when you talk with the attorney initially, make sure you feel comfortable. It is important that your personalities mesh in such a way that you feel you can be honest and open. The more details the lawyer has about your issues and objectives, the better s/he will be able to help you.
On the flip side, it is also important that you feel that the lawyer is listening and hears any concerns you have. An attorney needs to know the facts of your case and understand your goals. S/he must listen in order to be able to properly evaluate your options and develop tactics on your behalf. Make sure that s/he hears what you’re saying.
Further, it is imperative that you are at ease with the fee structure. This should be discussed during the initial consultation. Traditionally, attorneys work at an hourly rate. Ask what his/her rate is. Also ask how many hours s/he estimates for particular tasks (such as conducting research or writing letters, etc.), so that you can get an idea of what the final fee may be. Check that it is in a range that you can afford, so that you are not putting yourself in an unsustainable position over time.
Note that today the “billable hour” is not always the standard billing practice. Modern fee structures may be value-based. This means that a flat fee may be quoted for a project or a portion thereof. Therefore, rather than pay per hour, you would be quoted a set fee at the start. This is a good practice since it gives you, the client, predictability in costs, and allows you to accurately project your budget. If this fee structure sounds enticing to you, ask the attorney if s/he can work out such an arrangement.
I know that hiring an attorney doesn’t sound super sexy. I can assure you though that you will feel sexy when you squash a threat because you were properly prepared. Protect your hard work, financial investment, and profits – A little time with an attorney can go a long way.