Matt Dickstein - Business Attorney

Most medical practices want to classify their hired physicians as contractors not employees. Contractors are cheaper and easier than employees. You don’t withhold taxes for contractors, nor do you pay benefits, workers compensation or unemployment insurance, nor must you comply with the wage & hour laws (including overtime) for contractors.

Most businesses want to classify their workers as contractors not employees. Contractors are cheaper and easier than employees. You don’t withhold taxes for contractors, nor do you pay benefits, workers compensation or unemployment insurance, nor must you comply with the wage & hour laws (including overtime) for contractors.

Here is a quick outline to help you avoid personal liability from your business. You’ll see that most of the authors advice derives from an informed use of corporations and corporate law, which is why…

This article gives a very brief overview of how an accountant leaves or closes an accounting practice. The accountant can’t just walk away – leaving or closing an accounting practice is more complex than you think.

This article gives a quick overview of buying and selling an accounting practice. The author discusses the deal from due diligence, through deal terms, to the definitive deal documents.

In this article, the author gives some thoughts on preparing to sell your solo medical practice.

This article gives an outline of how to bring a new accountant into an accounting practice. The author goes from common sense to legal advice, from the accountant’s purchase of ownership to the parties’ exit strategy and unwinding of the relationship.

If you are in a group accounting practice, you might wonder, “Can I or another accountant in this practice set up a competing practice?” “Will a non-competition agreement prevent it?” These questions are crucial both to the existing group and the accountant who would set up the competing practice.

In this article, the author explains shareholder buy-sell agreements for accountants and accountancy corporations. A buy-sell agreement (also called a shareholders agreement) protects the corporation from the accountant/shareholders, specifically their death, loss of license, disability and dispute.

In this article, the author first discusses when an accountant is a contractor as opposed to an employee. Second, he looks at the essential terms of an accountant employment contract and an accountant independent contractor agreement.

This article gives you a legal compliance checklist for your accountancy corporation.

What are the costs and benefits of forming an accountancy corporation?

In this article I discuss common area maintenance (CAM) expenses in a real property lease.

In this article I discuss business mergers, from a legal perspective. Without further adieu:

In this article, the author discusses the merger of medical practices, from a legal perspective.

In this article I discuss physician recruitment agreements and their package of documents. A recruitment agreement allows a hospital to loan money to a physician or to a group practice in exchange for the physician’s promise to practice in a certain geographic area. Recruitment agreement packages frequently reach 100 pages of mind-numbing prolixity and obscure complexity.

This is the last article in my 8-part series on the basic corporate, business and contract law issues for veterinary corporations and veterinary practices in California. This article gives a very brief overview of how a veterinarian leaves or closes a veterinary practice. The veterinarian can’t just walk away – leaving or closing a veterinary practice is more complex than you think.

This is Article #7 in my 8-part series on the basic corporate, business and contract law issues for veterinary corporations and veterinary practices in California. This article gives a quick overview of buying and selling a veterinary practice. I discuss the deal from due diligence, through deal terms, to the definitive deal documents.

This is Article #6 in my 8-part series on the basic corporate, business and contract law issues for veterinary corporations and veterinary practices in California. This article gives an outline of how to bring a new veterinarian into a veterinary practice. I go from common sense to legal advice, from the veterinarian’s purchase of ownership to the parties’ exit strategy and unwinding of the relationship.

This is Article #5 in my 8-part series on the basic corporate, business and contract law issues for veterinary corporations and veterinary practices in California. If you are in a group veterinary practice, you might wonder, “Can I or another veterinarian in this practice set up a competing practice?” “Will a non-competition agreement prevent it?” These questions are crucial both to the existing group and the veterinarian who would set up the competing practice.

In this article I explain shareholder buy-sell agreements for veterinarians and veterinary corporations. A buy-sell agreement (also called a shareholders agreement) protects the corporation from the veterinarian / shareholders, specifically their death, loss of license, disability and dispute.

In this article, I first discuss when a veterinarian is a contractor as opposed to an employee. Second, I look at the essential terms of a veterinarian employment contract and a veterinarian independent contractor agreement. Is you is, or is you ain’t, a contractor? From time to time, to generate revenue, the IRS and CA EDD will audit your veterinary practice.

In my last article, I ask the threshold question, Should you incorporate your veterinary practice? In this Article #2, I give you a legal compliance checklist for your veterinary corporation. Incorporating a veterinary practice can feel overwhelming. There are so many unknowns to cause you anxiety. I write this checklist to fill in the unknown. This checklist gives you a bird’s eye view of legal compliance for your start-up veterinary corporation.

In part one of this series, I answer the question, should you incorporate your veterinary practice? What are the costs and benefits of forming a veterinary corporation?

This article gives a very brief overview of how a physician leaves or closes a medical practice. The physician can’t just walk away – leaving or closing a medical practice is more complex than you think. In this article I try to give both sides of the story, that is, the perspectives of both the individual physician and the group practice.

In this article I discuss how a non-licensed person can work with a medical practice, including the use of an administrative / management service company. Here is my conclusion up-front: A non-licensed person can work with a medical practice so long as there is NO ownership in the practice, where ownership includes not only stock in a medical corporation but also a share in revenues.

Medical offices need special lease provisions. All leases need negotiation and revision, but leases for physicians need a little more. In this article, I discuss some advanced lease provisions that medical practices frequently need. For a basic explanation of commercial leases, refer to my article Understanding Commercial Leases.

This article gives a quick overview of buying and selling a medical practice. I discuss the deal from due diligence, through deal terms, to the definitive deal documents. Finding the Deal - The first step is to find a deal. Talk to people in the industry. Find out if a physician is looking to sell and retire, or if an up-and-coming associate is looking to buy.

This article gives an outline of how to bring a new physician into a medical practice. I go from common sense to legal advice, from the physician’s purchase of ownership to the parties’ exit strategy to unwind the relationship.

If you are in a group medical practice, you might wonder, “Can I or another doctor in this practice set up a competing practice?” “Will a non-competition agreement prevent it?” These questions are crucial both to the existing group and the physician who would set up the competing practice.

In this article I explain shareholder buy-sell agreements for physicians and medical corporations. A buy-sell agreement (also called a shareholders agreement) protects the corporation from the physician / shareholders, specifically their death, loss of license, disability, divorce and dispute.

In this suite of articles, I explain the basic corporate, business and contract law issues for medical corporations and group medical practices in California. I explain things from both sides, that is, the perspectives of both the individual physician and the group practice. The articles in this suite are:

In this article, I briefly outline the legal requirements that apply when a group medical practice pays compensation to its members. My prior article, Compensation structures for a group medical practice, explained compensation plans from a non-legal perspective. This article talks about the law, specifically, medical practice compensation plans under California and federal referral laws (Stark and Anti-Kickback).

In this article, I talk about compensation plans for group medical practices. In general, a group practice pays its physicians in some combination of three ways: (1) salary, (2) productivity payments, that is, productivity bonuses or shares in profits or collections, (3) corporate dividends. Your balance of the three forms of payment determines in large part the culture of your group practice. Without further ado:

In this article, I first discuss when a physician is a contractor as opposed to an employee. Second, I look at the essential terms of a physician employment contract and a physician independent contractor agreement. Is you is, or is you ain’t, a contractor? - From time to time, to generate revenue, the IRS and CA EDD will audit medical practices on the issue of whether a physician is an employee or independent contractor.

In this article, I give you a quick overview of the major regulatory compliance areas for physicians and medical practices, namely: 1. Referral Laws -- Anti-Kickback and Stark Self-Referrals 2. Billing Medicare and Other Payers 3. HIPAA 4. Supervision of Staff 5. Test Case -- Sharing Offices with other Health Care Providers

In this article I answer the question, should you incorporate your medical practice? What are the costs and benefits of forming a medical corporation? It’s a tough question. The answer depends on a balancing of different factors. Most of us suffer information overload not long after starting this analysis. All of the factors start swimming around in our minds and we don’t know what to think.

Termination is the most important provision in a Physician Employment Contract and a Physician Contractor Agreement. Your exit from the relationship is crucial -- everything must end, and most things will end bad, so be prepared. This article explains termination provisions and the consequences of termination of the contract.

I’m often asked if an early exercise provision should be included in a company's stock option plan. Many tax advisors recommend an early exercise provision. Many legal advisors are against it. My experience has led me to this conclusion: early exercise can be valuable to a company’s optionees, but usually only at the very early stage of a start up.

This is article #7 of a 7 article series. In this article #7, I give you 7 steps to implement your stock option plan, restricted stock plan, cash plan, phantom stock plan or stock appreciation rights. To review, there are two types of incentive plans: equity plans and cash plans. I discussed equity plans, that is, stock option plans and restricted stock, in prior articles #2-5. I discussed cash plans, phantom stock plans and stock appreciation rights in article #6.

In this article #6, I explain how you use cash plans, phantom stock plans and stock appreciation rights. To review, there are two types of incentive plans: equity plans and cash plans. I discussed equity plans in prior articles #2-5. With an equity plan, you give employees stock options or restricted stock. Equity means ownership, so with an equity plan you give ownership in the company to the employees.

In this article #5, I explain how you take back an employee’s stock when the bum quits or you fire him. In the previous articles #3 - Stock Option Plans and #4 - Restricted Stock Plans, I introduced stock option plans and restricted stock plans. Don’t forget article #2, Equity Plans – Stock Options and Restricted Stock. In that article I introduced ten basic concepts for all equity plans, including restricted stock plans.

In this article #4, I explain how you use restricted stock plans to reward and encourage employees. In the previous Article #3 - Stock Option Plans I introduced stock option plans. Restricted stock plans work best for a small, select number of employees. These people are high level management; they are not rank-and-file employees. Think of restricted stock plans as one-off deals for individual employees.

In this article #3, I explain how you use stock option plans to reward and encourage employees. In the prior article, Equity Plans – Stock Options and Restricted Stock I introduced ten basic concepts for all equity plans, whether stock option plans or restricted stock plans. You should understand the prior article before moving on to this article.

Today, I briefly outline the legal requirements that apply when a group medical practice pays compensation to its members. My prior newsletter explained compensation plans from a non-legal perspective. This newsletter talks about the law, specifically, medical practice compensation plans under California and federal referral laws (Stark and Anti-Kickback).

In this article #2, I explain how you use equity plans, that is, stock option plans and restricted stock plans to reward and encourage your employees. Equity means stock or ownership, so with an equity plan you give ownership in the company to the employees. This article applies to both stock option plans and restricted stock plans.

Overview of article series on Stock Option Plans, Restricted Stock, Phantom Stock and Other Incentive Plans for Closely Held Businesses. Article #1 – Overview - This series of articles explains how restricted stock, stock options, cash plans, phantom stock and stock appreciation rights really work for closely held companies, and what their real value is for the company and the employee.

You need to know how to bring in a new shareholder or partner to help run your business. If you're the new partner, you need to know what's at stake when you step into the business. When I speak of a "partner," I mean a partner in the non-legal sense, that is, the incoming doctor, dentist, chiropractor, software writer or other professional who will directly service clients on a full-time basis.

In a compensation structure, the tension is between salary and productivity payments. Both have their pluses and minuses. On the positive side of the ledger, salaries create team spirit, while productivity payments give incentive to work. As for the negatives, a compensation structure that is heavy on salary leads to freeloading. Why work so hard if either way you’ll get paid the same?

Cumulative Voting. Under CA Corporations Code §708, CA requires cumulative voting for the election of directors. To invoke cumulative voting, one or more shareholders must give notice prior to the meeting of the intention to vote cumulatively. Any candidate for whom shares are to be voted cumulatively must have been placed in nomination prior to the voting.

The purpose of this Memorandum is to discuss certain procedures and operations relevant to a newly-formed California corporation. The summaries below are not a complete analysis of the areas discussed, rather they are provided to give a basic understanding of the legal requirements which California corporation should follow.

Forming a business can feel overwhelming. You worry about all the things you know, and you worry about all the things you don’t know. I write this checklist to fill in the great unknown. This checklist gives you a bird’s eye view of legal compliance for your start-up business. Let's start at the beginning - incorporation.

Title insurance in real estate purchases has always struck me as a mysterious and subtle thing. I remember reading a title policy for the first time and asking, what coverage is the buyer really getting? And how does it factor into the purchase agreement and the deal?

This article gives a brief summary of the 3-day notice, which is how you start an eviction (an unlawful detainer lawsuit). Once the tenant defaults on the lease (usually by not paying rent) the landlord cranks up the machinery of eviction by serving a 3-day notice.

This article gives you a short outline on how to evict an occupant from a property that you just bought in foreclosure. Usually the properties you buy in foreclosure are occupied. You must get rid of the occupant ASAP to protect the property and maximize your profit.

In this article, I give you a quick overview of the major regulatory compliance areas for physicians and medical practices, namely: Referral Laws -- Anti-Kickback and Stark Self-Referrals; Billing Medicare and Other Payers; HIPAA; and Supervision of Staff.

If you have a California corporation, you’ve seen this scam. By way of background, all corporations must file with the California Secretary of State an “Annual Statement of Information.” The form asks for basic information about the corporation such as the names and addresses of the directors and officers, and the filing fee usually is $25.

Franchise relationships sometimes end badly. Depending on your perspective, a bad ending might be the franchisee quitting the system, or the franchisor terminating or refusing to renew the franchise. By this time, one or both sides have a lot invested in the bad relationship, which leads to posturing and threats and sometimes litigation.

All franchise relationships end sometime, usually by the franchisee selling the franchise, dropping out of the franchise system or getting kicked out. In this article, the author briefly summarizes what happens when a franchisee sells, leaves or quits a franchise system, or when the franchisor terminates or refuses to renew the franchise.

Medical and dental offices need special lease provisions. All leases need a little negotiation and revision, but leases for physicians and dentists need a little more. In this article, the author discusses some advanced lease provisions that health care providers frequently need.

Some tenants need special lease provisions, for example, medical practices and businesses in the computer industries. In this article, the author discusses special, advanced lease provisions that tenants frequently need.

In this article, the author explains the law of brokers and finders in selling securities.

In this article, the author discusses how a non-licensed person can work with a professional practice, including the use of an administrative/management service company.

Shareholders and partners are like married couples: they fight. It makes no difference that the dispute is between deadlocked equal partners, or between minority and majority shareholders. In both cases, the shareholders and partners need a divorce.

How a non-licensed person can work with a dental practice, including the use of an administrative / management services company.

How a non-licensed person can work with a medical practice, including the use of an administrative/management services company.

Shareholders and partners are like married couples: they fight. It makes no difference that the dispute is between deadlocked equal partners, or between minority and majority shareholders. In both cases, the shareholders and partners need a divorce.

This article gives a short overview of evictions (unlawful detainers) from a landlord’s perspective. When you, the landlord, need to evict a tenant, you may not use self-help measures to remove the tenant. For example, you may not lock out the tenant, cut off utilities or place a baseball bat strategically upside the tenant’s head. Instead you bring an unlawful detainer lawsuit against the tenant.

This article gives a brief summary of the 3-day notice, which is how you start an eviction (an unlawful detainer lawsuit). Once the tenant defaults on the lease (usually by not paying rent) the landlord cranks up the machinery of eviction by serving a 3-day notice.

In this article the author explains the basics of commercial leases.

In this Article, the author gives you a legal compliance checklist for your medical corporation.

In this Article, the author answers the question, should you incorporate your medical practice? What are the costs and benefits of forming a medical corporation?

Part One of a 9 part series exploring business and contract law issues for medical corporations and group medical practices in California.

When times are tight, you might do your transactions without a lawyer, to save on legal fees. Although understandable, this is bad practice.

Overview of Primary Sources of Money. For the most part, you have around 5 sources of money.

This article gives an overview of buying and selling a professional practice, be it a medical, dental, accounting, veterinarian or other practice.

Franchise agreements almost always have non-competition covenants. [Non-competition covenants go by a number of names, including “restrictive covenants” and “no-competes,” but I’ll refer to them as non-competes.] A franchisor uses a non-compete agreement to stop the franchisee from competing against the franchisor.

A franchisor must give a detailed franchise disclosure document to all prospective franchisees. This document is called the Franchise Disclosure Document (formerly called the Uniform Franchise Offering Circular, or UFDD / UFOC). The author uses the terms “UFOC” "UFDD" and “franchise disclosure document” interchangeably in this article.

Clients frequently ask me what I think about the franchising of their business. I respond with a scary discussion of the costs of setting up a franchise system. I can’t help it – the client sees the upside of franchising, but it’s my job to see the downside including the costs and risks. This article will be no different. To help you decide whether you want to invest your time and money in franchising, I will summarize up-front for you the costs and risks.

If you are a member of a group medical or dental practice, at some time you probably have wondered, “can I or another doctor in this practice set up a competing practice and service existing patients?” This question is crucial both to the existing group and the doctor who would set up the competing practice.

Non-competition agreements go by a number of names, including “restrictive covenants” and “no-compete clauses,” but I’ll refer to them as non-competes.

Buying or selling a medical, dental or other health care practice is a complex process. Legal, tax, accounting, valuation and psychology issues are all involved.

Both the buyer and the target should value the target. Buyer does so for obvious reasons, and target does so to determine the asking price for the business.

In this article the author explains buy-sell agreements. Buy-sell protects a business from its owners, specifically their deaths, disabilities, divorces, disputes, bankruptcies and creditors.

Buying a franchise can feel overwhelming. You worry about all the things you know, and you worry about all the things you don’t know. I write this checklist to fill in the great unknown. This checklist gives you a bird’s eye view of legal compliance for your start-up franchise.

A real estate investor’s projects increase in size and volume as the investor evolves. With the growth, an investor might need more capital for down payments and development costs. The investor might already have exhausted all available debt financing, however.

Real estate owners and construction contractors sue each other all the time. The reason is simple – construction rarely goes as planned.

In this article, the author quickly explains the difference between franchises and seller assisted marketing plans, business opportunities, multilevel marketing plans, salespersons, licenses and distributorships.

In this article, the author will give you a quick overview of the legal analysis for firing an at-will employee.

If you are a sole proprietor, you probably ask yourself, should I form an entity for my business? What are the costs and benefits of forming an entity versus remaining a sole proprietor?

In this article, the author discusses when a promissory note is a “security.” The issue is important because, if the note is a security, then the issuer of the note must comply with securities laws. If the note is not a security, then the loan transaction can go forward without securities law compliance. Given the costs of securities law compliance, issuers want to avoid it whenever possible.

By definition, a finder is not a broker. A finder does not regularly engage in securities transactions. Your job is to restrict the selling activities of your non-employee directors, advisors etc. so that they are finders, not brokers.

In this series of articles, the author explains the law of brokers and finders in selling securities. Anyone who sells your stock must comply with the broker laws. This is true for your employees, officers, directors, friends and everyone else.

In this article, the author explains the law of brokers and finders in selling securities. His intended audience is the business owner who sells stock (or LLC interests) to raise capital for the business. The article deal generally with securities offerings (that is, private placements of securities) and specifically with the law of brokers and finders in the context of a securities offering.

In this article, the author explains the law of brokers and finders in selling securities. His intended audience is the business owner who sells stock (or LLC interests) to raise capital for the business.

In this article, the discusses how an investor resells securities that he bought in a private offering from a private company. The investor usually will have received his stock in an angel round of financing or a private offering / private placement of securities, whether under Regulation D, Rule 504 or 506 or like state laws, for example, California’s Section 25102(f) limited offering exemption.

In this article the author gives a brief overview of the federal exemptions that are most commonly used for private, limited offerings and private placements in California.

In this article, the author talks about how a management company, general partner or broker finds investors while staying in compliance with Regulation D’s rule against general advertisements and solicitations.

In this article the author talks about how you find and solicit investors. He discusses how to get investors for a private offering or private placement of securities, whether an angel round of financing, a VC round or an offering under Regulation D, Rule 504 or 506 or like state laws (for example, California’s Section 25102(f) limited offering exemption). The legal term for this topic is the “manner of the offering.”

When times are tight, you might do your transactions without a lawyer, to save on legal fees. Although understandable, this is bad practice.

Negotiation is a fact of life. We negotiate all the time, professionally and personally. Think of all the negotiation you do on a daily basis with your spouse and children. Negotiation is fun too, if you keep your ego out of it.

In this article the author discusses some basic building blocks in setting up your franchise system. He leads you through seven early steps in the process. Rest assured that you will need to accomplish many more steps on the way to franchising, but we have to start somewhere.

Real estate investors work together all the time. More and more, we see combinations of brokers, money investors, contractors and other folks flipping or developing properties. As members of a real estate venture, these folks need a formal structure to govern their relationships within the venture.

What is exit planning? Exit planning is a long-term process using legal, accounting and financial professionals to maximize an owner’s exit from his or her business. The exit is the sale of the business to the next generation of family or key employees or to an outside buyer.

If you have customers, you might wonder, “can my employees set up a competing business and steal my customers?” From the employee’s perspective, the question is “Can I take customers with me to my new business?”