Practicing Preventative Law: An Idea Who's Time Has Come

By David Feldman

MILFORD:  Risk prevention abounds in today's society. We do preventative maintenance on our cars, our computers, and other various personal items. We go to the doctor and dentist regularly, we try and eat right and get some exercise, and we are more vigilant about what is going on around us and any potential threats to our safety.

One area where we as a society do not engage in risk prevention is in our legal relationships. As our economy becomes more diversified and more heavily reliant on the growth and survival of small businesses, legal risk prevention is an idea whose time has come, especially in the ever-vital small business sector.

What is preventative law? Simply put, it is the use of legal services and advice before a problem arises. It is a proactive approach to handling one's legal affairs as opposed to the traditional reactive approach. Instead of reaching out to a lawyer to react after a problem arises, it is the proactive step of consulting a lawyer before something happens in order to prevent it from happening. While large corporations have substantial in-house legal departments to perform this vital function, small businesses are left to fend for themselves often times without access to legal representation.

Our courts are clogged with business disputes, largely involving small businesses, that were preventable. Issues constantly arise between businesses and their customers and vendors, between commercial landlords and tenants, franchisees and franchisors, employees and employers and business partners. Most if not all of these issues will rear their ugly heads at some point or another in the life of a business. And, most if not all of these issues can be avoided by practicing preventative law.

The time, money, and effort that small businesses must dedicate to dealing with these various claims and for prosecuting or defending lawsuits may well be one of the largest factors in the demise of a small business. I have seen it time and time again.

Can a small business with limited resources afford to practice preventative law? The better question is can they afford not to? If we agree that they can't, the question then becomes how? The answer, albeit a nontraditional one, is simple. A business should arrange for an affordable monthly retainer with a lawyer for a specific laundry list of services that the business needs.

For example, I offer my clients the following resources for a small monthly retainer: preparation of collection letters and negotiation of a resolution, response to collection letters and negotiation of a resolution, contract review, preparation and negotiation, preparation of corporate minutes, resolutions and biennial reports, and consultation on any other legal issue including, but not limited to, landlord/tenant issues, franchisee/franchisor issues and employer/employee issues.

This proactive approach to handling one's legal affairs is an approach that cannot be ignored any longer by either the legal community or the business community. The survival of our small businesses is too vitally important.