Law Offices of Donald W. Hudspeth, P.C.

Starting a new business? Need some advice from someone who has been there? Giving advice regarding starting a new business is a little bit like the blind man describing an elephant: it depends on where you are standing. For example, a government official will focus on permits, licenses and taxes; an accountant may emphasize accounting, payroll and tax issues; and a marketing person will develop your identity, brand and unique selling proposition.

Like many people with a standard Midwest religious upbringing I struggle to do the right thing and, sometimes, to know just what that is under the circumstances. But, as St. Paul discussed in Romans 7 “being good is not that easy, even when we are so inclined” (and he was a Saint.).

With a few exceptions, Arizona does not impose a citizenship or even a residency requirement on non-citizens seeking to start or buy an existing business in Arizona. As its economy recovers from the housing bust, Arizona is ideally situated for foreign investment, especially from partners in Canada and Mexico. Arizona participates in the CANAMEX Corridor Coalition, promoting safe and secure trade between Canada, the U.S., and Mexico.

For many self-employed Arizonans, forming an LLC is the best choice for their business. Likewise for many sole proprietorships, partnerships, and other small businesses. LLCs—limited liability companies—offer protection from legal liability and simplified tax procedures. Even though Arizona LLC law makes the process of forming a LLC relatively simple, it is less than half the battle—you will still need an Operating Agreement, appropriate permits and licenses, and a federal tax ID number.

I. Buying a Business in Arizona - A. Business Brokers, Pros and cons - B. Due Diligence in the Purchase of an Arizona Business - C. The Agreement for Your Purchase of a Business in Arizona - Selling an Arizona Business A. The Business Broker - B. Due Diligence in the Sale of a Business for the Seller C. The Sales Agreement for the Sale of a Business in Phoenix or Arizona.

The following is an outline of a lecture I have given to the Edson Institute at Arizona State University in Tempe, Arizona as well as the Arizona Small Business Development Center and tte students of my business law class at ASU in Glendale, Arizona. I am hoping this summary report will be sufficient to trigger action on the issues discussed and to cause the reader to obtain some professional advice regarding same.

I. Getting Started - As a lawyer, or sometime in your life, you have probably heard the saying by Abraham Lincoln: “He who would be his own lawyer has a fool for a client.” (Mr. Lincoln also said “A lawyer’s time is his stock in trade.” a useful motto in our profession. My hometown lawyer had that sign above his receptionist’s desk.) I mention this slogan (the first one) because a common problem that I have with my business-owner clients is that they work beyond their skill set.....

Introduction, Small Business and Southern Europe’s Economic problems. Because my Arizona business law firm represents businesses and start ups, both locally and from around the world, I was curious about the role entrepreneurs, start ups, and small and medium size businesses play in their national economies around the world. Surprisingly, one of the first articles that I found attributed the financial problems of Greece, Italy and Spain,.....

We hear so much about immigration in the context of border controversies that we may forget the vital role that immigrant owned businesses play in our economy. By “immigrant” we do not mean just Mexicans or persons from South American countries, which play a prominent role in states like Arizona, but also Indians, Koreans, Cubans, Chinese and the Vietnamese. A recent program on National Public Radio (aka “NPR”) documented....

A decade or more ago a client of our business law firm needed some advice on an international transaction. We called several local firms that we thought might do that kind of work, but they didn’t. So, I concluded, “What the heck. If they are not going to develop a practice in that area, I will.” Thus, we invested in multiple volume sets on the international law of contracts and the law of various foreign nations. Since that time we have done a number of transactions all over the world......

What is written is fundamental to the Phoenix business laws, so obviously document review is crucial in the litigation process. It is a key to the discovery process. According to KPMG, first level document review can be anywhere from 58 to 90 percent of the total litigation cost. Doing it right is crucial to a successful outcome. Failing to notice a significant document may result inadvertent disclosure of a privileged document or a significant document only showing up at a deposition.....

Attorney-Client privilege is a particularly tricky issue for attorneys who handle business transactions in Phoenix, as they so often have clients for both legal and non-legal services. A client who requires legal services is protected by quite strict attorney-client privilege ethics rules. However, a client who is provided strictly non-legal services cannot be protected by attorney-client privilege.

I. General Standard - With some exceptions, the general legal standard of care for business actors and agents is “prudence.” In this context “prudence” means to act as an ordinary prudent person would act under the circumstances. But, this standard can be misleading because, at law, prudent people arguably do not make common mistakes, like combing their hair or changing the radio dial while driving, let alone sending texts.....

The Internet is destroying the enforceability of small business contracts. Here are a few examples: Case 1: Painting Company and the BBB. - A house painting company (“PaintCo”) bid on and signed a contract with a home owner to paint his house. The contract had a three day cancelation clause which was not invoked.

In selecting a law firm for an owner-operated small or medium sized business (aka “SMB’s”), we can start with some basic positions: 1. The law firm client is well advised to choose a lawyer, not a firm. Lawyers vary in aptitude, knowledge and experience in various practice areas, just as other businesses do. So, obviously, you need an attorney who actually practices business law.

I. General Standard - With some exceptions, the general legal standard of care for business actors and agents is “prudence.” In this context “prudence” means to act as an ordinary prudent person would act under the circumstances. But, this standard can be misleading because, at law, prudent people arguably do not make common mistakes, like combing their hair or changing the radio dial while driving, let alone sending texts. So, the prudent standard.

Over the years in my legal practice I have noticed that, much as I would wish, advise, and preach to the contrary, most of my business law clients come to the firm, not because they have recognized a need and seek to avoid or prevent some problem or event from happening, but in response to that problem or event after it has occurred. In other words, the demand for our legal services is reactive, not preventative.

Unfortunately, about two out of three new clients come to our firm because they have a problem with their signed contract or legal documentation. Too late, they have received the previously unconsidered information that their contract does not have a jurisdictional provision (so they are being sued in Idaho); or their contract doesn’t allow for....

An understandable, but false, assumption of some potential law firm clients is that a small case will cost less than a big one. After all, if I buy a small coffee I expect to pay less than I would pay for a larger size, so why do legal fees not adjust to the size of the case? Well, first of all, they do in some cases. Legal fees can track the size of the deal in transactional matters; that is, where the parties are negotiating a deal and entering into contracts re same.

Here is a list of reasons why you may want to start your own small business.

If you purchased real estate as part of a business purchase, if you inherited real estate, if you are retired and own properties you want to turn into rental properties, the organizational engineering you do is not just to save on taxes. The cheapest form of insurance you can buy may be the limited liability you gain when you keep your property in a limited liability company (“LLC”) or limited partnership designed to protect you from the liability associated with property.

As a business owner, proactive personal asset protection may be essential to protecting your hard-earned assets against situations and events beyond your control.

Increasingly, businesses are including alternative dispute resolution (ADR) clauses in standard business-to-business and consumer contracts, and even businesses without ADR clauses opt for ADR procedures to resolve disputes while keeping court and legal costs to a minimum.

Before you take steps to dissolve your partnership—general, limited, or limited liability—get state and federal income tax advice, and make sure you fully understand the financial ramifications of shutting down your business.

A general partnership forms whenever you associate with at least one other person to run a for-profit business.

S-corporations and C-corporations share many of the same advantages and disadvantages. Probably the single biggest drawback to both forms of corporation in Arizona is the difficulty of proper incorporation. The process is much more complex—and requires much more accountant and attorney involvement—than forming a limited liability company, sole proprietorship, or partnership.

1. Character as Destiny: Sometimes That’s Not Good. - Ralph Waldo Emerson -- who wrote the essays Self Reliance and Compensation, among others -- might have loved my law firm Clients, who tend to be hard-working, self-reliant, persevering and intelligent, just to name a few of their good personality traits. In short, they have “Character.”

In 1969 the Arizona Court of Appeals decided Thompson v Harris.1 Thompson the famous (or infamous) welding shop case, dramatically illustrates the traditional rule that a landlord has no duty to one tenant to correct the nuisance activities of another.