Business North Carolina magazine has honored lawyers since 2002 by publishing Business North Carolina’s Legal Elite. This is a listing of the state’s top lawyers in different categories. Business North Carolina’s Legal Elite has become the model for other awards and lists, but it remains unique as the only award that gives every active lawyer in the state the opportunity to participate. Each year, Business North Carolina magazine sends out ballot notices to every member of the N.C. State Bar living in North Carolina — asking each a simple question:
"Of the Tar Heel lawyers whose work you have observed firsthand, whom would you rate among the current best in these categories?"
Voters are not allowed to vote for themselves. The top vote-getter in each category becomes a member of Business North Carolina’s Legal Elite Hall of Fame.
Attorney Christopher Adkins and Attorney Sarah Bennett were awarded the 2018 Young Guns award from Legal Elite.
Mr. Adkins and Ms.Bennett were among the top 3% of lawyers in North Carolina to be awarded into the Legal Elites Hall of Fame. Join us in congratulating them on this award. We are so excited for them and are so lucky to have them as our lawyers serving the Lake Norman and Huntersville area specializing in Estate Planning, Family Law, and Traffic.
When a married couple separates and plans to get divorced, they must go through the process of equitable distribution. If the couple or one spouse owns a business, the business is subject to be divided equitably. If you are contemplating separation or divorce, and you own a business, contact Adkins Law if you would like to discuss your matter in detail. Adkins Law has locations in Lake Norman and south Charlotte.
If you're looking to hire a business attorney, then congratulations are in order, because that is probably a good sign that things are booming. But as you set off to find the right business attorney, you have to keep a few things in mind. First and most importantly, if you're hiring a business attorney for the first time, you need to make sure you don't get ripped off. This requires surveying the market to find out what the going rates are, deciding how much of your budget you want to allocate for legal expenses, and then selecting an attorney who fits within your budget.
Please note that when it comes to business attorneys, more money does not always mean more quality. In fact, sometimes, the opposite is true. Business lawyers at large firms charge insanely high rates, and they tend to specialize to a very narrow degree. For example, a given lawyer doesn't just practice business law, nor does he specialize on a particular type of transaction or even a particular type of deal document. Instead, a given lawyer might specialize exclusively on a particular clause within a particular deal document! Granted, he's probably one of only a few hundred experts on that clause, but if your legal matter doesn't pertain to that clause, you don't give a rats ass. You would rather have an attorney with a broader view of what's going on. The point is, you shouldn't assume that more money means higher quality of service.
The next thing to think through is the scope of the engagement. If you're hiring an attorney to perform a limited scope of services, you should search one way, but if you're hiring an attorney to be a long term partner and advisor in growing your business, then your selection process should be very different. As an example, some people hire an attorney to form their corporate entity (LLC, corporation, etc), and they know, at the time, that they have no intention of sticking with that attorney for the long haul. If this is the case, then it's perfectly fine to hire based on price and proximity (there are some caveats, which we will explain in a future article). On the other hand, if you're looking to hire someone who you will view as a trusted advisor and who will grow with you as a business owner, that is a very different story. It's the difference between searching for a provider of commodity legal services and searching for a true legal counselor.
The final thing that you should be aware of is the basics of how different services are priced. For services where the attorney is able to predict, with reasonable confidence, the amount of time and effort that will be involved, attorneys will generally be willing to price their services on a flat fee basis. Examples of this include incorporation, forming an limited liability company, and writing a partnership agreement. By contrast, services that appear open ended tend to be priced on an hourly basis. This is for good reason - if the attorney has no way of knowing how long the engagement will take or how much work will be involved, he would be ludicrous to commit himself to a fixed price. Examples of this tend to come from contentious cases - disputes between founders, disputes between management and owners, disputes between company and stockholders, etc.
That wraps it up for Business Attorney Fees in a Nutshell. In another article, we will put some actual numbers onto all of this to help you form a better idea of how much it will cost to hire a business attorney for your legal needs.
By Elspeth Crawford
An S corporation is a corporation created under state law that elects to be taxed under Subchapter S of the Internal Revenue Code. This election results in an S corporation being treated as a pass-through entity for federal income tax purposes, the profits and losses of which pass through to the shareholders rather than being taxed to the corporation.
Apart from the manner in which it is taxed, an S corporation is indistinguishable from a C corporation. A S corporation is formed in the same manner as a C corporation, its shareholders enjoy the same limited liability protections, and it is managed in the same manner.
In order to qualify as an S corporation for federal income tax purposes, the corporation must file an election with the Internal Revenue Service. This election can be revoked at any time by the consent of the shareholders. It may also be terminated under certain circumstances.
If an S corporation election is in effect, profits and losses of the corporation are passed through and taxed on the individual returns of the shareholders. All shares of stock of an S corporation must have the same rights to dividends and liquidating distributions.
In some states that levy income taxes, S corporations are treated as pass through entities. In other states with income taxes, S corporations are treated in the same manner as C corporations.
The treatment of S corporations is the same as that of C corporations from the standpoint of shareholder liability. Making an S corporation election only affects the income taxation of a corporation. It does not affect the limited liability of the corporation's shareholders, who enjoy limited liability to the same extent as shareholders of a C corporation.
S corporations the same as C corporations from the standpoint of management and control. Making an S corporation election only affects the income taxation of a corporation. It does not affect the management of the corporation.
Transferability of Ownership Interests
An S corporation is the same as a C corporation from the standpoint of transferability of ownership interests. But there are limitations on the types and number of persons that may hold stock of an S corporation. If stock of an S corporation is transferred to a person other than an individual (who is not a nonresident alien), estate, or trust qualified to hold S corporation stock, or if a transfer results in stock being held by more than 100 shareholders, the S corporation election will be terminated. Consequently, S corporations typically have in effect buy-sell agreements or other arrangements that restrict transfers of stock that would cause termination of the S corporation election.
The same securities law and control issues that affect the transferability of stock of C corporations also affect S corporations. As with a C corporation, an S corporation's existence that is not affected by the death, dissolution, incapacity, or bankruptcy of a shareholder, although its S corporation election could be jeopardized if stock ends up in the hands of a person who is not qualified to be an S corporation shareholder. The existence of an S corporation, like a C corporation, is not affected by the resignation of an officer or director.
Organizational and Maintenance Costs
An S corporation the same as a C corporation from the standpoint of the formalities required for creating and operating the corporation. The only difference between an S corporation and a C corporation in this regard relates to income tax return filing requirements. An S corporation must file an information return for federal income tax purposes even though its income or losses are passed through and taxed to its shareholders, whereas a C corporation files its own income tax return and pays tax on its own income. For state income tax purposes, an S corporation may be treated as a pass-through entity or may be treated the same way as a C corporation.
A corporation can avoid the double taxes that are imposed on profits of a C corporation if the corporation elects to be taxed as an S corporation. An S corporation is taxed something like a partnership. The corporation files an information return for federal income tax purposes, but its income or loss is passed through and is taxed to the shareholders of the corporation. The deduction of losses by S corporation shareholders is subject to the passive loss limitations and at risk rules.
As with a limited liability company (LLC), an S corporation combines limited liability with pass-through income tax treatment. The taxation of S corporations and limited liability companies is, however, not the same in all respects. An LLC with more than one member is taxed as a partnership and therefore provides three tax advantages not shared by S corporations:
On the other hand, S corporations can provide employment tax advantages. Shareholders are subject to FICA tax only on salaries or other compensation paid to them—undistributed S corporation income and dividends paid by S corporations are not subject to employment tax. In contrast, each member of an LLC who is an individual must, in most cases, pay self-employment tax each year on his or her share of the LLC's income, whether or not the income is distributed to the member. The only members who are exempted are those in manager managed LLCs who do not materially participate in the business of their LLCs.
An S corporation can also provide favorable tax treatment in connection with the development and sale of real property. If a shareholder sells undeveloped property to an S corporation, the shareholder will recognize capital gain or loss. If the corporation develops and then sells the property, the incremental increase in value created by the corporation's development services will generate ordinary income that will pass through and be taxed to the shareholder of the corporation. But the shareholder will not be subject to employment taxes on the income, except to the extent it is distributed in the form of compensation.
If a partner or member sells development property to a partnership or LLC, any gain realized will be ordinary income under I.R.C. § 707(b) if the person owns more than 50% of the capital or profit interests in the purchasing entity. Moreover, the person will be subject to self-employment tax on any income realized on the development of the property. Consequently, the after-tax return realized by the original owner from the sale, development, and resale of the property will not be as great with an LLC as it would be with an S corporation.
It should be noted that the problem of double taxation of C corporation's gains on sales of assets is not solved by having the corporation make an S corporation election. If a C corporation makes an S corporation election in anticipation of a proposed sale, it will be subject to built-in gains tax, which results in double tax at the highest rates. If the corporation is already an S corporation, there will not be a double tax on property distributions. There will, however, be a single tax.
The inability to withdraw assets from an S corporation without tax prevents business organized in this form from being converted to other forms of entity, such as limited liability companies without tax consequences. On the other hand, rearrangement of the corporate structure or ownership of a S corporation may be possible through several types of tax-free reorganizations so long as the assets remain in corporate solution.
By Elspeth Crawford
The Pre-incorporation Checklist (PIC) is an attorney-drafted agreement used by individuals and entities prior to forming a corporation. The PIC lays out material terms between the prospective shareholders so that there is no confusion once the corporation is actually formed. The goal of the PIC is to lay out the essential and material terms between the prospective shareholders so that there is no confusion once the corporation is actually formed.
Having a PIC can facilitate the process of exploring pre-incorporation considerations with the principals of the corporation and gathering the information necessary to prepare organizational documents for the corporation.
Such a checklist should cover such things as:
Capitalization of the Corporation:
Management of Corporation:
By Elspeth Crawford
Trademarks are identifying names or symbols that mark a product or service as being uniquely associated with the company which sells or offers that product or service. Two or more companies may sell similar products, but trademarks distinguish one such company from another. Both McDonalds and Burger King sell hamburgers, for instance, but only McDonalds is allowed to mark its food products with the golden arches. Trademarks help build brands, and the law of trademark helps companies hold onto those brands once they become recognizable on a larger scale.
Short words and phrases are not eligible for protection under copyright, but they can be trademarked. Things which are eligible for trademark protection include:
Descriptive, Suggestive, and Arbitrary marks all have something in common: they are presumed to have “secondary meaning.” Secondary meaning is a legal term indicating that a product or service has become associated in the mind of the public with the particular product or service which it represents. When a name or mark has secondary meaning, the owner can claim trademark protection.
How to Get a Trademark
One can get a trademark for a product or service in a number of ways:
No one is required to register for a trademark, but doing so provides certain advantages. For one thing, registration puts those who might want to register their own marks on notice of yours. For another, registration gives you a legal presumption of ownership, so if there’s ever a conflict the law will assume that you are the owner of the trademark and the person who allegedly infringed upon it will have to prove otherwise.
Consequences for Infringement: The penalties for using a mark without the owner's permission can be serious. If you infringe someone else's mark without knowing it, you could have to pay the owner lost profits from the sales of the owner’s goods or services. If you intentionally infringe upon someone else’s mark, you may have to pay all profits you made selling the goods or services that used the mark, plus attorney's fees.
Economic pressures may have you convinced that anything is better than nothing when it comes to securing employment. Getting hired nowadays can be an uphill climb, however as a new employee, you need to take several things into consideration before signing your employment agreement. By keeping these five things in mind, you can try to prevent litigation should your new venture turn sour.
What’s in this thing?
The Employment Contract
“Congratulations, you’re hired! Sign here and we’ll get started.” Every employer-employee relationship is a contract. Generally, contracts are legally binding. It is imperative that you know your rights and obligations to your employer BEFORE a claim arises. This means that you do actually have to read the agreement, and more importantly, understand it.
When a formal written employment contract is required, there are several common terms within it. These terms legally protect both the employee and the employer. Terms may be industry-dependent, but most employment contracts include: compensation plans, benefits or stock options, duration of the contract, grounds for termination, severance clause, a non-disclosure clause, an arbitration provision, expectations and duties, and a non-compete clause.
Tricky Terms and Creeping Clauses
The importance of understanding terms of contract
This is possibly the most important thing to keep in mind when starting a new job. Through the excitement of your new employment, you read your contract, maybe even read it carefully (assuming you understood #1 above). You sign. Six months later you hate it, and quit when a competitor company makes you an offer. Happens all the time - but you could be subject to legal limitations, such as accepting your new offer or retaining your previous clients.
If your previous employment contract contained a non-compete clause, you may not be able to work for a similar company or transfer your previous clients for a certain period of time. Many employment contracts contain non-disclosure or confidentiality clauses as well, which prevent the departing employee from sharing information relating to the employer’s business. You don’t want to learn that you signed a non-disclosure agreement after you sent out the recipe for your employer’s secret sauce.
The bottom line? Understand what each term or clause in your contract means, as well as your rights and obligations that go along with them.
Big Brother is Watching
You probably have no privacy rights to your emails
It is true. If you forward your personal or non-business emails to your Outlook account at work, anything you send is saved and can be used against you in court. Keeping your accounts separate is kind of a ‘duh’, but don’t get lazy and utilize your work email for anything you wouldn’t want your whole office to see.
In a company, not even the CEO has privacy rights to the emails they send. Every document and every email is saved because companies know they have to keep EVERYTHING should a lawsuit arise. It is important for you, as an employee, to do the same. If you save your emails, they can be evidence to build your case should you encounter a lawsuit. Especially be conscious of retaining anything that may be related to illegal activity (i.e. harassment or fraud).
Who’s who and who do they answer to?
Organization of the Company
This one may seem silly, but it is serious. Knowing the organization of the business or company is critical to respond effectively to issues. Be aware of who your boss answers to, and the entire chain of authority for the organization. This makes correcting mistakes easier, relieving liability more probable, and resolving compliance issues faster.
Practically… er…Imperfect in Every Way
Keeping up with your personal file
It may be a surprise that your employer has a personal file on you (it was to me). You previous employer does too. With each person an employer hires, they begin a personal file. This file contains internal memoranda and notes on anything you may have done that they find displeasing. Even if you are convinced you are a perfect employee, your previous HR department may have thought your “sick day” Monday after the Superbowl was a little suspicious. This file typically will only contain negative instances (even very minor occurrences), and are kept in anticipation of litigation. They will also be pulled as prospective employers read your resume and call your references.
Once you start a new job, you should check out your personal file after 3 months or so. Each state is different, but usually you can request to access your own file, for instance, twice a year. This is a great way to see how you’ve started out and fix anything you’ve been doing wrong. Hopefully, there is only constructive criticism in there!