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Lawyers can be the biggest risk to your M&A deal. Hire the right one and life is good. Hire the wrong one and your deal could blow up - and you'll still end up paying a big legal bill.
Here are my best recommendations on how to find the right lawyer for your deal.
Eric Hsu, Attorney at Law
Clear Focus Law
Eric @ClearFocusLaw.com
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M&A work is very specialized. You don't want to hire a lawyer who dabbles or only occasionally handles a business purchase or sale. You want an M&A deal lawyer who focuses on this area of law.
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Just like you wouldn't go to a restaurant without checking out their reviews, don't hire a lawyer without checking out their reviews. Be especially cautious about lawyers who have been in practice for some time now and either have no reviews or have not even set up their profiles yet.
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Most lawyers suck when it comes to running a business. They don't teach that in law school and if they don't have their own firm they won't have much business savvy (outside of what they read in textbooks). Thing is, it's really beneficial in your M&A deal to have a lawyer who has had some experience starting, managing, or growing their own business. Here are some ways to get such a lawyer:
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Little known dirty secret. The worst position in small local law firms is "junior partner." These attorneys are offered ownership of the firm but have a huge buy-in that they need to work off and need to bill a huge amount every month to meet certain minimums (and can actually owe money instead of making money on months when they don't bill enough). Junior partners never stay long and will often leave once they get a better offer. So, if you hire a junior partner, you are hiring an attorney who is likely overworked, being pushed hard for billing (meaning a higher bill for you), and often on the way out.
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Lawyers seem to come in two types. One type treats legal knowledge like a rare commodity that they need to hoard. They rarely give out free info, and are poor communicators. The other type loves to teach and help business owners become more sophisticated legal consumers. They freely share content and resources, and are great communicators. You will have a much better experience working with a lawyer who likes to teach.
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I'm frankly offended that the legal profession is still so in love with hourly billing. Let's face it: hourly billing rewards lawyers for being inefficient, doing unnecessary work, and for taking longer than necessary. Is that what you want from your lawyer? I didn't think so. A specialized M&A lawyer should be able to flat-rate most if not all of your deal. Hourly fee agreements are just like a blank check (with your name on the signature line).
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In addition to checking reviews, get more social proof by getting info about the lawyer's past deal experience. This is also a great way to see if, in fact, the lawyer is a specialized M&A lawyer. Obviously you can't get details but you should at least be able to see info about deal types, sizes, industry, etc.
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Even amongst M&A lawyers, you will find that they fit one of two types. One type is what I call a paper pusher. They will take your deal parameters (usually in your LOI) and draft the needed documents to help you close the deal. Period. They won't be able to advise on strategic issues like deal structure, negotiation tactics, tax issues etc. The other type is a strategic advisor (usually with some business savvy). These lawyers can advise on many of the more nuanced and strategic issues of your deal including structure, negotiation, dealing with problems that come up, and bringing in other professionals to help. You want a strategic advisor.
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Sadly, the legal profession is one of the few where it's still acceptable to use fax machines on a regular basis. Yes, pretty low-tech. When it comes to your M&A deal, having a low tech lawyer can be a huge problem. At the very least this can be very inconvenient (like when they ask you to show up to the office to sign docs). At worst, it can create legal problems for you (like when they try to have you email them documents that are protected under NDA which you are required to share only in a secure manner).
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Thanks for reading this legal guide. I hope it was useful and will help you find the right lawyer for your next deal. If you'd like to learn more about the services I offer acquisition investors and exiting owners, please check out my website.
Eric Hsu, M&A Attorney
Clear Focus Law
eric@clearfocuslaw.com
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