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Tag Archives | Transactional Law Clinic

Helping Minority-Owned Businesses

[Originally published January 30th, 2023, on the Office of Clinical and Pro Bono Programs blog]

An experience that ‘stands out from the rest’

[Originally posted on 20th Dec 2022 on the Office of Clinical and Pro Bono Programs blog]

By Alec Johnson, J.D. ’24

headshot of Alec Johnson

Alec Johnson ’24

The first year of law school intimidated me for many reasons: intellectually challenging coursework, grades based entirely on final exams, and hundreds of new classmates—all of whom with fascinating backgrounds—caused me (alongside most of my peers) to enter 1L under tremendous anxiety. And while such concerns gradually faded as I grew comfortable in this new setting, one source of difficulty persists today: law school’s emphasis on theory.

Coming directly from the University of Minnesota with majors in finance and accounting, my undergraduate education and (brief) work experience revolved around real-world practicality: What is the net present value of this project? How will it impact the firm’s tax liability? And are there alternatives that offer a greater return or lower risk? Accordingly, the policy-based nature of law school coursework made for a jarring transition. Gone were the days of learning the Generally Accepted Accounting Principles and applying them to concrete scenarios with objectively correct answers; instead, I was expected to study the underpinning of the law, questioning its premises and proposing improvements as needed.

This open-ended emphasis is not inherently problematic; indeed, plenty of lawyers—especially those from Harvard Law School—regularly conduct such inquiries through their roles as, for instance, litigators, judges, and professors. However, given my business background and plans to practice corporate law after graduation, I sought more practical learning when selecting my second-year coursework. And combined with my preexisting curiosity for the school’s numerous clinical programs, this interest caused one experience to stand out from the rest: the Transactional Law Clinics.

Trying clinical work for the first time, I was just as intimidated as when I began law school. While I understood the purpose of a transactional lawyer and the subject matter behind this program’s practice areas, how would I fare in applying such knowledge to ongoing legal issues? Additionally, due to my more reserved personality, the thought of directly engaging with clients and administering meetings (albeit under instructor supervision) terrified me. Nevertheless, I viewed the program as an excellent opportunity to preemptively address these shortcomings during law school rather than postpone them until after graduation. And it delivered.

As expected, my first few weeks in the Transactional Law Clinics contained many challenges: drafting precise contractual language, developing rapport with clientele, and even simply billing time all constituted tasks that I had never before performed despite their ubiquitousness in the corporate work. However, through repeated exposure to such responsibilities (and plenty more) with individualized feedback from my supervisor each week, I grew increasingly comfortable in the transition from a law student to a student advisor.

For instance, whereas I initially dreaded all client communications due to my then-constant fear of sharing incorrect advice, I have since found myself looking forward to such meetings as a much-needed change of pace from traditional law school studies. Guided by my instructor’s tailored feedback, I have developed the confidence necessary to fulfill clients’ requested services without perpetually second-guessing my results. This observation should not imply that I have grown careless in my work; rather, I have developed sufficient familiarity with both my clientele and their deliverables to recognize when I may assertively share conclusions.

Reflecting on the last twelve weeks, my cases at the Transactional Law Clinics have simply been too varying to pinpoint one “favorite.” Drafting a commercial lease for a startup café, developing a presentation on the distinct characteristics of the most common business entities, and updating a spreadsheet that calculates differences in tax liabilities between limited liability companies and S corporations are just a sample of my completed matters this fall. But, if anything, my strongest memories of the program stem from observing the development of my clients.

For example, one of my long-term cases involves a client intending to open a restaurant in the Boston area, and I have accordingly helped her create an operating agreement, draft a master contract for future collaborations, investigate the prospects of a trademark for her company’s name, and research the basics of franchise law. Beyond exemplifying the breadth of services offered by the Transactional Law Clinics, this matter enabled me to witness the client’s growth firsthand; during this semester alone, she acquired both a liquor license along with the keys to her business’s property, and her excitement to open the restaurant becomes increasingly palpable with each meeting. While my contributions concern just one small portion of her overall venture, I still had a sense of pride from seeing the client inch closer toward her entrepreneurial dream and express gratitude for my work. Naturally, the program (like most real-world practice) has its share of mundane tasks too. But the peaks of the Transactional Law Clinics—including the satisfaction gained from helping those who otherwise could not afford legal services—more than compensate for such low points.

I would recommend this program to anyone even remotely interested in transactional work. Law school courses successfully instill substantive doctrines and legal reasoning, but the field requires some skills that cannot be taught in the classroom (especially for transactional practice). Moreover, as evidenced by my earlier praise, the Transactional Law Clinics have provided many of my most memorable moments in law school and reaffirmed my passion for the profession. Unlike most classes that give just a single character of feedback through letter grades, this program offers constant opportunities for practical self-development through conversations with instructors, clients, and peers—all while simultaneously assisting disadvantaged groups in the community.

In total, this program has enabled me to cultivate many skills essential for successful transactional practice; from drafting contracts on relatively complex matters to simply maintaining organization when managing my caseload, I have gained indispensable insight from the Transactional Law Clinics that would have otherwise been unobtainable in school. Although I will be clerking and subsequently working at a large law firm in New York after graduation, these experiences have demonstrated firsthand the importance of small-scale, community lawyering. Accordingly, I hope to eventually return to this realm after graduation—be it through pro bono work or otherwise.

‘Hands-on, experiential work starts on Day 1’ in the Transactional Law Clinics

[Originally posted 16th Dec 2022, on the Office of Clinical and Pro Bono Programs blog]

By Kaetlyn Conolly, J.D. ’24

With all the new experiences and challenges that 1L year brings, it is easy to start to feel disconnected from the reasons that initially drove you to apply to law school in the first place. But 2L year brings new freedom to reacquaint yourself with the passions you brought to law school and to explore areas of the law that could potentially lead to fruitful, fulfilling careers. That’s why I jumped at the opportunity to join the Transactional Law Clinics (TLC) when we had the opportunity to enroll in a clinic during 2L year. In fact, the vast array of experiential learning opportunities was one of the reasons why I chose Harvard over other law schools I was considering.

This year, I wanted to resume working in a clinical setting and engaging with the community, which I always enjoyed before law school. I also wanted to experience what it might look like to work as a transactional attorney. Through the course of the semester, I was able to accomplish both these goals.

The hands-on, experiential work starts on Day 1 at the TLC. Upon our first meeting with our supervising attorneys, we are assigned about four clients that we will be working with at the start of the semester. It is the student’s job to familiarize themselves with the client’s file, to set up meetings with the client, to conduct research related to the case, and to develop strategies for how to address the client’s current questions. The learning curve and the sense of responsibility at the outset of the clinic are large, but the clinical instructors do all they can to support the transition. Clinical instructors like my supervising attorney not only provide structure to the work that we do, but they also all have practical, industry-specific advice accumulated from years working in the entertainment, non-profit, corporate, and community lawyering. That type of inside knowledge and practical training was indispensable to completing casework.

In addition to learning how to logistically manage a case, the clinic allowed me to familiarize myself with several subject matters that I had absolutely no prior experience with. I was able to get a crash course in securities regulation, entity formation, recording artist agreements, and intellectual property matters all in one semester. While I expected the clinic to be akin to my prior experiences at self-help centers and non-profits, which involved more rote form preparation, the experience was in actuality much more instructive. Not only was I able to competently discuss these subjects with clients by the end of the semester, but I also feel much more prepared for upcoming classes at HLS (particularly Corporations, which is known to be one of the more formidable classes).

Not only were the matters we worked on incredibly instructive, but the collaborative, workshop format of the clinic encouraged sharing of ideas and allowed students to learn from one another. I was constantly impressed by the variety of matters my fellow student advocates were dealing with and the complex relationships they were navigating between clients and opposing parties. The other students in the class served as a great resource with which to discuss research approaches and potential ethical hurdles.

Above all of the great learning opportunities the clinic presents is the reintroduction of a certain fire that the first year of doctrinal courses can dim. What I mean to say is that imposter syndrome and the transition to a novel environment can often make you feel like you don’t belong at HLS, or you don’t belong in the law. But working in the clinic, improving upon feedback from your instructors, and helping your clients reach their goals truly gives you the opportunity to showcase your best and to see your classmates shine as well. I recommend the TLC to students interested in transactional law and litigation alike. You’ll see the benefits of the experience regardless of what your future career path holds.

Diversity Business Certifications at the Local, State and Federal Level

Webinar of November 15, 2022 presented by TLC and the Boston Local Development Corporation (BLDC).

In today’s highly competitive market, it’s important for small businesses to set themselves apart in the marketplace, add established credibility, and have better access to contracting opportunities.

We will introduce business owners to the process of applying and obtaining business certification at the local, state, and/or federal level, such as Women Business Enterprise (WBE), Minority Business Enterprise (MBE), Veteran Owned Small Business (VOSB) and others. The presentation will include details on the types of certifications, benefits, requirements, process, and answers to questions that frequently arise.

Link to Presentation Slides

Small Business Owners – How to Get Access to Expert Advice

[Originally posted on Dog Trainer’s Umbrella, Jan 4, 2021]

 

Vanessa O'Connor, Transactional Law Clinics of Harvard Law School

by | Jan 4, 2021

This fourth interview in our series is a special treat: our interviewee is Vanessa O’Connor, and attorney with the Harvard Law School Transactional Law Clinic. TLC is an amazing resource for small business owners who can’t afford the legal advice they need to build a strong business. Vanessa is also a smart, articulate speaker who will fire you up.

If you have not heard the story behind these interviews, here it is again:

As small business owners, we are often isolated from our peer group of other business owners.  This feeling of isolation and figuring it out on our own was exacerbated in 2020 by the effects of the pandemic.  While Facebook groups like “DTU: Marketing & Running an R+ Dog Business” can help to provide a sense of community, I was inspired this summer to reach out to other small business owners and talk to them about their industries and their stories, to see what I could learn and pass on to you. I recorded our conversations and want to share them with you here.  I had a lot of fun asking questions, finding similarities and hearing about lessons learned. Be forewarned: the recordings are unedited and low tech, more for listening to than looking at, but you may learn from the shared experiences.

Have you found any free resources that have helped you to build your business?  Is there a law school clinic in your state?  I’m always keeping my ears open for these kinds of resources so I can share them with the dog training community, so let me know.

Democracy Brewing

[Originally published by Harvard Law Today, September 17, 2019]

 

Last summer, with the help of Harvard Law School’s Transactional Law Clinics (TLC), Democracy Brewing became the first brewery in Massachusetts to launch as a worker-owned owned business. TLC, a clinical program of Harvard Law School which provides legal assistance to small businesses and entrepreneurs, helped the downtown Boston brewery incorporate, including setting up a direct public offering to raise the initial capital needed to start the business. Democracy Brewing Co-founders James Razsa and Jason Taggart; Joe Hedal, Deputy Director of HLS’ Transactional Law Clinics; and Hillary Baker-Jennings ’16, one of several TLC clinic students who advised the fledgling company, reflect on the process of getting Democracy Brewing from an ambitious idea to a thriving business.

 

How Practicing Entertainment Law in TLC Made Me a Better Lawyer

[Originally posted May 10, 2019, on the Office of Clinical and Pro Bono Programs Blog]

Iain McCarvell, LL.M .‘19 on stage playing a guitar

Iain McCarvell, LL.M .‘19

By: Iain McCavill LL.M. ’19

The Transactional Law Clinic was one of the most useful, necessary, and enriching courses I took at Harvard Law School. I chose to focus my clinical work in entertainment law. My interest in entertainment law stemmed from my six-year journey as a musician and manager of a touring rock band. The Transactional Law Clinic represented my first opportunity to work in the entertainment industry since 2015 when I traded in practicing music for practicing law by applying to law school. I enrolled in the Transactional Law Clinic because I wanted to learn more about how the entertainment industry works, to understand the types of deals done, and to learn about the legal language used in showbiz agreements. While I learned a lot about those things, what I learned most was how to be a better lawyer.

I learned that my desire to understand the industry, the deals, and the applicable law was vital but myopic. The Transactional Law Clinic helped me discover that in my eagerness to master the legally salient aspects of my chosen profession, I had forgotten about the most important thing: the client – the human being whose legal issues I was being trained to resolve. From the initial client interview to eventual case resolution and beyond, I learned how important it is to be curious, to discover what makes the client tick, and to discover what the client cares about beyond the immediate legal issue at hand. I found out that the more I learned about the person I represented, the better I was able to advocate on their behalf.

Another thing I gained from the Transactional Law Clinic was the opportunity to bump into ethical issues in a controlled environment. As a law student, I did not have a full appreciation for the ubiquity and frequency with which ethical issues arise in everyday practice. Learning the theory behind the Rules of Professional Conduct is a different thing altogether from actually handling ethical issues as they arise. The Transactional Law Clinic gave me the opportunity to spot, consider, and address these issues in real time.

It would be remiss of me to not mention the humbling quality of my classmates in the Transactional Law Clinic. Whether through in-class discussions, attendance at the clinic each day, or trips to the Harvard Innovation Lab, I learned a lot from them and made some lasting bonds.

As a 2019 Harvard LL.M and a 2018 J.D. graduate of a small underfunded Canadian law school (go UNB!), the Transactional Law Clinic was my first opportunity to work in a practical setting under the guidance of experienced lawyers who were themselves not captives of the billable hour. This environment allowed the clinic’s supervising attorneys to provide helpful feedback and support throughout the semester. With this tremendous guidance, I developed important skills related to interviewing clients, case management, negotiating, and communicating better with clients and related third parties. And one more thing: if, like me, you ever thought it was absurd that many law students graduate from law school without ever actually seeing a contract, then you probably should have signed up for the Transactional Law Clinic.

Finding Your Startup Lawyer: What Every Entrepreneur Should Know

[Originally posted May 2, 2019, on the Office of Clinical and Pro Bono Programs Blog]

Via Xcomony

Photo of an open plan office space

Source: Pexels

By: Linda Cole and Joshua Fox

Successful management of any new enterprise, regardless of industry, is a process demanding of concerted effort to realize opportunity with a finite set of resources. As an entrepreneur, perfecting your vision, securing and managing funds, building a team, marketing and selling, and executing on plan, all while navigating unexpected obstacles, likely occupy your every day. At the core of whether you can succeed is whether your principal team has not only the requisite ability and experience, but the support in place to sustain it. This support, typically, derives from academic advisors, industry experts, professional consultants, and, eventually, from investors.

From whom you choose to seek advice, including from which startup lawyer, will significantly impact your progress. To assume that any corporate lawyer—and there are many able ones out there—can meet the demands of your business need not be one of your early fails. The right lawyer for your startup will not purely be a legal advisor but a strategic one—that is, an integrated teammate who is uniquely prepared to support your mission.

What makes a particular lawyer worthy of this role? A set of professional skills and personal attributes that combine with your own in just the right balance to drive success. Whether this lawyer is with an outside law firm or in house as part of your core team, our collective experience across both roles reveals a strikingly similar skillset. What, precisely, do these skills look like? You may be surprised to learn that the most predictable is, in fact, not necessarily the most impactful.

1. Risk Management

If your first contact with a lawyer is prompted by risks associated with your business, such as how to document equity owned by the founders, protect intellectual property, or engage human resources, then you are not alone. It is this expectation of risk management that creates what is, in theory, where the value of the lawyer’s contribution to your startup lies. It is, of course, imperative that your lawyer be prepared to identify, analyze and recommend steps to eliminate or, at the very least, mitigate risk.

If your startup is highly data driven, for example, your lawyer must not only understand the applicable legal and regulatory framework around the collection, storage, use, and/or sale of the particular type and form of data but, likewise, the related risks and remedies, if any, that may be employed to avoid them. There are multiple means of managing risk, such as through informed decision making, contract drafting and liability insurance, but before risks can be addressed, they must first be identified.

You absolutely need to be able to look to your lawyer for input into cost-benefit analyses relative to legal risks to your business. Ideally, you will want to choose a lawyer who has experience with companies similar to your own, either in terms of industry or issues, including having worked on the types of transactions you expect to engage in. Contrary to popular belief, however, understanding and analyzing legal risk is not the only, nor is it even the most beneficial, skill that the right lawyer will bring to your startup. It is, more specifically, the lawyer who is able to adroitly shift between advisor on risk to participant in solutions from whom you will derive the greatest value. This agility is as much a mindset as it is an expertise.

2. Partnership

Your choice lawyer may be an individual attorney or a law firm, but, in either case, you should expect and receive consistent proof that your legal counsel is an engaged member of your team. Whether a lawyer (or firm) inwardly identifies as “your business partner” will noticeably manifest, in both character and actions.

Your lawyer should be ready, for example, to support the business through creative and flexible billing practices, including offering alternative fee arrangements, such as a discounted hourly rate or fixed fee per project; estimating legal fees before commencing work; or deferring collection until your startup has realized a certain amount of revenue or capital. Willingness to experiment with such measures demonstrates that a lawyer is “on your side” by supporting your financial goals, despite the risk, and taking a long-term view of the relationship—in effect, making an “investment” in you and displaying confidence in your business’s likelihood of success.

The lawyer who thinks like a partner will consistently demonstrate that he or she cares and can be depended upon. You should feel valued after interactions with your lawyer, regardless of his or her workload, and confident that you and your business will take priority at the appropriate times. Your lawyer should be reliable and responsive, promptly returning phone calls and emails; mindful of your timeline; and able to deliver work product on time and within budget. You should never be left to worry that more mature businesses, which are larger paying clients, will monopolize the attention of your lawyer.

Perhaps the most meaningful attribute and indicator that a lawyer is prepared to be an effective teammate is a genuine interest, not simply in the business but in you as a person. The right lawyer will take the time to get to know you—your personality, your leadership style, your expectations, your work routines, and even your communication preferences—and proceed to accommodate them. In cases where you expect help analyzing risk but prefer to make the final decision yourself, your lawyer should facilitate that, by guiding you through pertinent pros and cons; but, in cases where you, instead, prefer a definitive opinion, your lawyer should provide one.

Say, for example, that you are a first-time entrepreneur negotiating a term sheet for an initial round of financing, and, with negotiations faltering, you ask your lawyer whether he or she would sign the term sheet “as is.” If your lawyer understands you to have a need for clear and concise guidance around integral business decisions, your lawyer must be able to provide you with a “Yes” or “No” answer, and not an exhaustive recitation of terms. You will likely desire some balance between analysis and opinion from your lawyer, and where he or she is adeptly able to gauge which one you prefer and when, you have forged a strong partnership.

3. Collaborative Communication

Being a good communicator is essential to being a good lawyer, partner and problem solver, especially when navigating the bumpy terrain of a startup. Your lawyer should, therefore, routinely be asking incisive questions about the particular business issue, goal, or transaction at hand. How else will he or she be able to clearly comprehend what you are looking for, what you care about most, and, alternatively, what you may not think is important? It is only through asking questions that your lawyer can construct and tailor recommendations that are both sound and relevant. After all, your business is not a hypothetical, and legal advice should never be delivered to you in a vacuum.

While posing the right questions is a necessary first step toward effective communication, your lawyer should not stop there. It is equally imperative that he or she pay careful attention to your answers. Only through active listening will your lawyer be able to understand the broader context within which your specific need has arisen. If, for example, you ask your lawyer to review and interpret a contract, the advice that you receive will be most useful to you when generated from a clear understanding, not only of the proposed transaction, but, more specifically, of your objectives and leverage relative to those of the counterparty to the contract.

Returning to our example above, if you are a first-time entrepreneur engaged in collapsing negotiations for seed financing and looking to your lawyer for guidance on whether to sign the term sheet “as is,” only if your lawyer has been carefully inquisitive might he or she know, for example, if you have spent months chasing financing, have received only this one offer, and are increasingly concerned over the resulting delay in technology development. Advice appropriately shaped by these facts would include a shift in focus toward negotiating a smaller subset of your most important issues (perhaps even just one or two) in order to make sure that a deal gets done as quickly as possible.

4. Practical Advice

Although many of the questions that you will pose to your startup lawyer will have complicated answers and, thus, require detailed analyses, you, typically, will need a succinct response. While a lawyer can spend a lot of time over email or on the phone with you summarizing relevant issues and describing the review conducted to reach his or her conclusion, this propensity is contrary to the startup reality. Time is money, and you are, no doubt, both busy and cost conscious. It stands to reason, then, that the more compatible lawyer is the one who is able to “cut to the chase.” While your lawyer should be able to work back to the analysis supporting his or her conclusion, in the course of discussing your questions, practicality dictates that the lawyer should lead with that conclusion, offering a recommendation at the outset.

As an entrepreneur, most likely with a business or technical background (rather than a legal one), you should expect your lawyer to be the one to bridge the gap and have the ability to speak your language. Your lawyer should avoid the use of legalese, so that you find the advice easily understandable and relatable. In fact, an essential component of your startup lawyer’s role is not providing legal advice—that is to say, to offer counsel on related, but non-legal, matters. For example, you may ask the lawyer representing your startup in a venture capital financing to advise you regarding how frequently particular deal terms, like participating preferred stock, are seen. Knowing how prevalent deal terms are is not “legal” advice, per se, but explaining which terms are “market” and which are atypical is a key value-add. This relevant expertise will enable your lawyer to help you to prioritize and determine which terms to negotiate and which to accept.

The ability to provide practical business advice is part of a larger skillset that will distinguish your best startup lawyer from the rest. Most lawyers will be able to educate you on how to interpret a provision in a contract or analyze risk in a transaction, but the lawyer that you want to find exercises sound judgment in the provision of real-world advice. Your world is the startup world, and, as such, your lawyer must be able to expertly determine what is important to you (and what is not), given the stage that you are at. This determination is impacted by the particular circumstances and context, such as when and how urgently you may need outside financing, and the circumstances and context need to figure into the advice that you receive.

If, for example, your startup is running low on cash—with payroll, accounts payable, and other obligations due—but has received a proposal from a prospective licensee of your technology in a specific territory outside of the United States, you may need to accept terms that are less than favorable, and it is the role of the skilled startup lawyer to help you determine what your business can live with. Your lawyer should know not to “over-lawyer,” such as by drafting and negotiating the definitive agreements in a way that adds unnecessary time, complexity, and expense to the deal or, even worse, in a way that puts the deal at risk: By continuing to negotiate a matter for which there could be a compromise or by delaying the closing date through prolonged negotiations, the deal could fall through.

5. Understanding the Business

As an entrepreneur, your business is born of an idea that you believe is unique. It could be an advanced technology, an innovative service, or a progressive social mission. Whatever it is that sets your business apart needs to be substantively understood, in both design and practice, by your lawyer.

If, for example, your startup is a software-as-a-service play, your lawyer must be familiar with the software, its functionality, feasible customizations, and what steps the business is willing to take in terms of customer care, warranty, and support. Otherwise, your lawyer will not be able to negotiate successfully with tech-savvy customers, discuss the finer points of service level agreements, and explain what credits, if any, will be offered in the event of unexpected downtime. If this dexterity is not the case with your lawyer, in order to support your sales team, then you may as well be selling off-the-shelf software, because, before the contract is even signed, the prospective customer may determine that the service piece is missing.

Equally as important for your startup lawyer to grasp is the financial model and underlying accounting principles on which your business runs. Whether you are selling a product or a service, there will be a process by which revenue flows through your business. With working knowledge of this process, your lawyer can draft and negotiate license and services agreements that, to the extent possible, support the conversion of bookings into recognized revenue sooner rather than later. Be sure that the lawyer you select does not plan to simply “do deals” for your startup but that he or she plans to help you craft deals that are structured in such a way as to support your business goals.

While finding “a” startup lawyer may seem a straightforward enough task, finding “your” startup lawyer—the practitioner whose partnership, communication, and practicality will advance your business purpose—requires that you know who and what you are looking for. The right fit from the outset often proves determinative and, therefore, you will want to evaluate carefully skills that many entrepreneurs, especially those searching for a lawyer for the first time, might not intuitively focus on.

Linda Cole is a Clinical Instructor at Harvard Law School and Supervising Attorney for the Harvard Law Entrepreneurship Project. Joshua Fox is a Partner at WilmerHale in Boston and an Adjunct Lecturer at Boston University School of Law. Both are alumni of Harvard Law School.