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Tag Archive: opengc

Ready For A Change In The Way Lawyers Bill You?

(This was first published on the Harrisonburg-Rockingham Chamber of Commerce website.)

For as long as there have been lawyers, there have been clients to whom lawyers seemed expensive.

In a world where you need certainty – knowing your costs, knowing your numbers – you never know how much you are in for when you pick up the phone to talk to your lawyer. You don’t know where it’s going to lead. Asking your lawyer a simple question might lead to unforeseen follow-up questions and “I guess I hadn’t thought of that” moments, and soon you feel like you’ve released the kraken.

Never has it been more true than now. In the grip of the COVID-19 pandemic, a company with reduced revenues and dependence on a PPP Loan to keep its employees for the next few weeks might come to a simple conclusion about the discretionary, non-emergency use of legal counsel – the conclusion being that it can’t afford it. The temporary drastic belt-tightening that everyone is doing now may lead some business owners to the conclusion that open-ended hourly legal bills need to be a thing of the past – at least their past.

Around the country, corporate general counsels – who, like any corporate managers, have to justify their expenses to senior management and boards – have been hinting, asking or outright requiring their lawyers to propose different ways of billing them. For smaller companies without inside GCs, the people responsible for hiring attorneys have come to their own similar conclusion. Many clients have heard about retainer arrangements, subscription models, flat fees, and similar alternatives to hourly billing before, but as COVID-19 squeezes budgets and clouds futures, companies are more and more asking their attorneys to actually propose these arrangements to them, and provide discounts in the interim. Lawyers are being asked, in essence, to invest in their clients. Some have called it a way for lawyers to “pay it forward” in a time of crisis. Others, like myself, view it as a permanent shift in the economic relationship between clients and their attorneys.

As Ben Gross, general counsel of retailer Rue 21, said recently, “When you have a good relationship with your outside counsel, they’re going to work with you in thick and thin.”

As an aside, I should note that even though hourly billing has fed lawyers for decades, the irony is that many (actually most) lawyers will tell you they hate billing by the hour. The mechanics of it, they will say, are tedious. So both sides have something they dislike about the hourly rate. Hourly billing is like the moon in that scene in Sleepless in Seattle, when Tom Hanks and Meg Ryan are both looking at it 3000 miles apart at the same time and thinking the same thing, except here instead of being in love its…well, it’s something else entirely.

There are real reasons why hourly billing has been the norm. Lawyers are ethically bound to not charge a client for work until it is already earned, in the absence of some other mutually understood arrangement. You do identified and authorized work, and then at the end of the month you send a bill.

But there’s never been a worse time (in least our lifetime) for major costs to be unpredictable in a business. It’s time for lawyers and clients to have conversation about other (and probably smarter) ways to work together.

Apart from lawyers getting paid by taking equity in a client that’s in a fast growth stage – a practice largely limited to Silicon Valley technology companies — there are two basic types alternative of legal fee arrangements. One structure is where a client pays a monthly fee in return for essentially unlimited access to lawyers in the firm, and the other is where a flat fee is charged a specific definable task. We began offering the first service – we call it OPENgc – four years ago, and we can attest that when lawyer and client spend the time to design an arrangement that works for the business, it’s an ideal way for the law firm to bring both certainty and immediate value to a lawyer-client relationship.

Flat fees for specific tasks, by definition, allow the client to budget legal services to the dollar. It’s a workable business model for lawyers who have the experience to predict what it will take to achieve a particular client’s goal — such as negotiating a loan or lease, purchasing or selling a company, drafting contracts, and other matters with a definite start and finish.

Both of these alternative fee arrangements push lawyers to work smarter and to really understand their clients’ businesses. This is a great thing, for both client and the attorney.
The uncertainty that surrounds business now, in the midst of this pandemic, amplifies the uncertainty that has challenged owners and executives forever, in good times and bad. Lawyers have been presented an opportunity to shut down the timeclock and take some of that particular fear off the table.

If you have questions about legal issues, the relative costs of legal work or just want to talk about your experience as a consumer of legal services, please contact me or any of our business lawyers.

Ideas are Just That: Part 2

Jared Burden explains that the co-founders of a new tech business based on a great idea need to keep in mind several powerful elements of that relationship for it to have its best chance for growth and success.

Read his Ideas Are Just That: Part 1 post here. If you have comments or questions about this topic or any business law issue, please contact Jared or one of our Virginia business lawyers.

Knowing Where to Start

Clients wonder sometimes what they are getting into when they ask a lawyer to draft a contract. Maybe their fear is that their attorney will sharpen up his metaphorical pencil, lean his chair back to think deeply on life and law for an hour or two (on the clock), and then pull out the laptop and sit down to drafts things up from scratch, like a composer writing out each note to a (very boring) symphony. The client may fear that the lawyer views every deal is different, that everything about every deal is new every time, that everything needs to be tailored like a bespoke suit.

Every deal is different, it’s often said – I’ve heard myself say it a hundred times. That’s because the facts are different, and that’s because no two people and no two companies are alike or have the exact same priorities. But that doesn’t mean that two deals – say, two leases of refrigerated warehouse space, or two agreements for the purchase of the assets of small businesses — happening 500 miles apart (or 5000 or 5) — can’t be done with forms of contract that are 90% the same.

In fact, they probably should be done that way.

And your attorney shouldn’t be spending a whole lot of time going for the Pulitzer Prize for creative nonfiction and drafting that 90% (just a percentage used for illustration purposes) from scratch.

Unless we are speaking of some sort of business deal where the industry is utterly new, the parties are utterly idiosyncratic, and the risk tolerances are off the charts (one direction or the other), or all of the above, the same basic forms work across the board. I remember Internet 1.0 – the days of AOL and — and the ways that lawyers were trying to draft “application service provider” contracts that expressed the concept of software programs being accessed over the Internet (what we now call Software as a Service (SaaS)). But even in that time, when the Internet was beginning to utterly change the way the world operated, the contracts were pretty much built right on top of software, consulting, joint venture and financing contracts that had been around for decades before that.

The majority of the text in a contract from 1975 (the year of the room-sized computer) – for example, events of default, remedies on default, representations and warranties, indemnification, assignment, the boilerplate at the end, and the general flow and sequence of the document — was essentially the same as the text in a contract drafted in 2000 (the year of the sock puppet). The same is even more true for commercial real estate contracts, and even holds true for many types of intellectual property agreements.

And it goes without saying that 90% of the text in an accounting SaaS services agreement from 2017 is going to be the same as a payroll SaaS services agreement from 2019.

Anyone who tells it differently is trying to create mystery where there really should be none.

That’s my candid and honest observation How does this insight relate to you?

As outside corporate general counsel, under our OPENgc service offering, GreeneHurlocker is keenly focused on saving a client time and money while still delivering the legal assistance a client needs, when they need it. We avoid reinventing wheels. We’ve been practicing enough years, in widely varying industries and for companies of all sizes, to have an experienced, intuitive sense of what works and what doesn’t, and how the work we’ve done before may apply to the work we are doing for a client now. When a client picks up the phone and asks for an individual contract to be done or an entire deal to be quarterbacked, the client can rest assured we are not starting from scratch. Instead, we’re applying all the knowledge and work we have already done.

We’re here to guide you to the end of your deal. But we also know where to start.

Great Client, Great Coverage

The Washington Post’s coverage on Sunday of our good client Shenandoah Growers of Harrisonburg affirms their rise from a small, family-owned herb farm to a national leader in flavor-forward produce selling in 23,000 stores, including 16 of the country’s top 20 food retailers. Take a look at this profile in the Washington Post Business section last Friday. The company’s process innovations and tight focus made them a great subject for the Post and an ideal client for our OPENgc legal expertise. Relentless innovation and a profound understanding of the market are the main reasons they have been successful — and among the many reasons we have been glad to serve as their general counsel for several years

If you have any questions about the services we provide to entrepreneurial and growing businesses, contact Jared Burden or any of our Virginia business lawyers.

Three Things an Entrepreneur Should Keep In Mind

Entrepreneurs are fascinating to me. They are tied to the mast by their own natures. They can’t do anything else but what they are doing. They have to create. Even when the most they get from friends, family, and the guy on the next bar seat is a cocked eyebrow, maybe even a yawn.

Most of the entrepreneurs I deal with have long come to terms with the way they are wired. To them, it’s just who they are.

As amazing as they are in their inspiration and knowledge base, they (like all of us) can often use a bit of perspective. As general corporate counsel, that’s a place I can make an impact. It’s my job to scan broadly to see the forest my client is walking through, and keep a closer eye for the falling tree that might hit him on the head.

While I am not a huge believer that something as complex as entrepreneurship can be reduced to lists, there are a few home truths that have emerged for me in doing this over and over again. It’s in the form of advice I could give any person looking to forge a business where there was nothing before.


An entrepreneur needs to be able to analyze a challenge along at least two separate tracks — Pro and Con, Option A and Option B, these assumptions and those assumptions. This is easy for a lawyer to say; it’s what we’re trained to do. (“I did not kill that man! But if I did, this is why I should get off.”) But you know what? We all need to do it from time to time, and someone starting a business from scratch really needs to do it.
Bill is the founder of a company that is developing a family of apps for use within the construction industry. He has always believed that the vertical he needs to focus on as the way into the industry is commercial banking. It’s the insight that got him into this venture and it’s what he’s always assumed would work best. But a friend who’s given good advice on this venture before is telling him that it’s the building trades, people on trucks like plumbers and roofers, who would adopt the product first and then evangelize it within the construction world. Bill’s intuition has done him well in life to this point, and he’s loath to step away from it now. In fact, not just “going with his gut” feels like a rejection of who he is. But Bill needs to be able to mentally take a moment and imagine a world where he’s wrong and his friend is right. He should play out both scenarios – from past first principles, through the present, and into the future. And he should do it without kicking and screaming. It’s a waste of energy.

You won’t lose yourself if you think in parallel. Your brain is big enough to keep control of the whole process and bring everything back in when it’s decision time.


I’ve sat across the table from several company founders who have given me the look of a deer in the beams of an approaching car when I’ve told them my cursory Google search has shown others are already operating in their space. In these cases the entrepreneurs have gotten so romanced with their own idea, and so deep into the feedback loop created by unexamined assumptions of uniqueness, that they’ve failed to consider that others are already there, or nearby.

There really are few new ideas under the sun. (And I plan to write a piece about why ideas, alone, are pretty worthless.) It only makes sense that in a world full of smart people who, receiving the same inputs and experiencing the same things as you, would hit on your idea.

A new company is the most compelling when it is the first to market to solve a pain – or, better put, the first to (i) solve the pain (ii) with a sustainable business model. It can also be pretty compelling when there are folks already doing what you do, but you have some special angle on it – which may be no more genius than really good branding or deep industry knowledge. You need to know which of these scenarios – commodity or non-commodity – apply to you before you can really have any business entering the marketplace. They are very different realities.

You can’t know any of this before you fall out of love with your idea for a brief moment and survey the landscape with a sharp and skeptical eye.


You will probably abandon your original business concept. It’s natural, somewhat inevitable, and completely healthy. It’s not failure. It’s life. We didn’t get dating right the first time we tried it. When we finished a term paper in college it probably was about something different than when we wrote the first word of it. Reflective light technology revealed that Da Vinci first had Mona Lisa looking off to the side, without her half-smile.

The original idea is what gets you into the game. Without the original idea you wouldn’t have had the reason to start the journey. But it will almost certainly not be what your product or service actually turns out to be.

What will still be there is you. Which, to me, means that you are the real product.

Smart early-stage investors know it, or come to know it if they see enough deal flow. There are a lot of ideas, a million slices of the pie of industry – lots of places to do good work. Lots of opportunity. But there are only so many people really who have the persistence and character to think as clearly as spring water while at the same time wading chest-deep in muck. These people are pretty rare.

It’s rare because it’s hard. The born entrepreneur has a leg up, because he really has no choice but to work to become that person. He may not know that’s what he’s doing, but he’s doing it nonetheless.

If you would like more information on these entrepreneurial essentials or have an issue in business law, please contact me or any one of our Virginia corporate law attorneys.