Episode 204

podcast photo thumbnail
1x
-15
+60

00:00

00:00

Lawyers, financial planners and insurance salespeople. You joke about avoiding them at cocktail parties, but they are definitely not who you should avoid as agency owners. Many owners think of attorneys as an expense. I can tell you – the preventative investment you make with a lawyer to get a good contract and other tools is a pittance compared to what I have seen agencies lose when they don’t have those good tools.

If you are a high-risk gambler – grab a contract off the internet and use that.

That’s why I invited Jamie Lieberman, founder of Hashtag Legal LLC, to be my guest on this episode of Build a Better Agency. She has over 15 years of legal experience and specializes in helping agency owners protect themselves before they get into hot water.

Jamie brings extensive experience in contract creation and negotiation IP issues agencies face, web and mobile app terms and conditions, and influencer marketing legalities.
Settle in – she’s ready to give you a free hour of legal counsel!

A big thank you to our podcast’s presenting sponsor, White Label IQ. They’re an amazing resource for agencies who want to outsource their design, dev or PPC work at wholesale prices. Check out their special offer (10 free hours!) for podcast listeners here: https://www.whitelabeliq.com/ami/

What You Will Learn in this Episode:

  • Why you need to find the right attorney for your agency
  • The absolute necessity of drawing up the right contracts for your agency and some characteristics of the ideal contract
  • How agencies can (and should) protect themselves from potentially hazardous legal situations caused by clients
  • The ins and outs of independent contractors and how to avoid legal headaches and fines
  • Navigating non-compete and non-solicitation agreements for employees and contractors
  • The importance of confidentiality agreements and defining what constitutes confidential information
  • Claiming domain names while avoiding copyright or trademark infringement
  • Why agencies owners should stay abreast of popular trends in the industry, especially in areas such as influencer marketing
“You have to have a contract that sort of lives and breathes with your business. It needs to be changeable. It needs to be audited once a year. It needs to be something that can change as your business changes.”- Jamie Lieberman Click To Tweet “You as an agency are only as good as the information your client gives you, so you have to protect yourself.” - Jamie Lieberman Click To Tweet “Just because you have an independent contractor agreement with somebody does NOT mean they are an independent contractor.” - Jamie Lieberman Click To Tweet “You need to define what confidential information is; it’s different for every business. For an agency, that’s your client list. Those are your processes. Those are your strategies.”- Jamie Lieberman Click To Tweet “I personally say that you should feel comfortable having a drink of your choice - coffee, or I like wine - with your lawyer, and you should feel cool about it.” - Jamie Lieberman Click To Tweet

Subscribe to Build A Better Agency!

Itunes LogoStitcher button

Ways to Contact Jamie Lieberman:

Speaker 1:

Welcome to the Agency Management Institute Community, where you’ll learn how to grow and scale your business, attract and retain the best talent, make more money, and keep more of what you make. The Build a Better Agency Podcast, presented by White Label IQ, is packed with insights on how small to mid size agencies survive and thrive in today’s market. Bringing his 25 plus years of experience as both an agency owner and agency consultant, please welcome your host, Drew McLellan.

Drew McLellan:

Hey, everybody, Drew McLellan here, with another episode of Build a Better Agency. Thanks for joining me again.

I am excited about our guest, and when I tell you what she does for a living, you’re going think, geez, Drew, you need to get out a little more. But I think she’s going to surprise you and I think she’s going to just fill your brain with good content and ideas that will actually protect your agency and save you money.

So, my guest today is Jamie Lieberman. Jamie is, I want you to hold on and please do not stop listening or put me on five times speed when I tell you what Jamie does. Just give her 10 minutes to convince you that she is no ordinary attorney. So, Jamie is actually an attorney, a podcaster, and an entrepreneur. She’s been in her own solo practice for about seven years, but has worked in many other law firms before she started her own.

She is now the owner and founder of Hashtag Legal, out of New York and Jersey, and very committed to making the idea of the legalities of running a business, a service business. She works with a lot of agencies, making all those legal rules and must-do’s and helping us understand what’s really a must-do and maybe what’s, yeah, it’d be good to do. Making all of that accessible and not so scary. I am confident that by the time we are done chatting, she will have convinced you that that’s really one of her gifts, is to really be able to talk in terms that we can all understand and help us decide what we need to do to actually protect our agency and make sure that we set up for future success.

So, right now Jamie is running her firm, she runs an all female virtual team, which is focused on providing clients with advice on a wide range of subjects. We’re going to tap into all of it, IP, influencer, FTC, privacy, general business law. I’m going to try and get as much out of her as I can in an hour. So buckle in, I’m going to try and move quickly, I have a lot of questions for her because I know you have a lot of questions around this stuff, but I’m super excited to talk to her. I think you are about to be surprised.

Jamie, thank you for joining us. Welcome to the show.

Jamie Lieberman:

Thank you so much.

Drew McLellan:

So, my job is to get as much free advice out of you in an hour that I can. That’s my promise that I have made to the listeners. So, tell us a little bit about your background and how you came to specialize in law issues that particularly impact agencies.

Jamie Lieberman:

So I’m a lawyer, I’ve been a practicing lawyer for almost 15 years, which every time I say I still cannot believe. I went the traditional law route, where I worked big law in New York City, I worked for the federal government, both were everything you think they were and not in the good way.

So I decided about seven years ago that I was going to go out on my own because I thought that there was just a better way to practice law and I wanted to figure out what that was, because I truly did love being a lawyer. I actually got my start because I had always been a blogger, of all things, nothing related to the law, I just blogged. I actually had a pretty popular blog about living in New York City. I shut that down after I had kids because I no longer lived in New York City, but I was really interested in the blogging world about seven or eight years ago when people started to make a little bit of money in that space. So I started doing some legal work for some blogging, some companies that did conferences for bloggers. One of them about six years ago said, “Hey, would you be interested in talking about legal issues for bloggers?” I thought, yeah, that’s interesting, and I did, and that’s where Hashtag Legal was born.

So from my work with bloggers, naturally went into work with agencies and brands. That started narrowly, just in the influencer marketing space. Then pretty quickly a lot of the agency owners were thinking, well, if you can help me with this then why can’t you help me with all the other issues that I have? That’s really where the practice came from. So that small, narrow niche grew into service professionals, creatives, working with online businesses. Agencies just fall in there and I have a number of clients who either started or run agencies, and just need to know that they have an attorney in their back pocket for when things are either amazing and something new is happening, which is my favorite call, or when there’s something that goes wrong and we need to figure out how to make it right.

Drew McLellan:

Yeah, I’m guessing your world is a little like mine. I will on occasion get a call or text when everything is amazing. However, if I’m getting a call or text on a Sunday night, it is rarely about amazing.

Jamie Lieberman:

Correct, yeah.

Drew McLellan:

Yeah, it is, something is on fire.

Jamie Lieberman:

Correct, yeah. Most of the time the amazing stuff, except for the clients that we’ve worked together for a long time and they know they’ll get in trouble, they forget to call me when the amazing stuff happens. They say, “Oh my gosh, I need legal and I need it tomorrow,” or some cool deal comes in and they want me to take a look at it, I do do a lot of contract reviews. So those are the good ones, but yes, usually something is on fire.

Drew McLellan:

So most agency owners are really accidental business owners. They were really awesome at doing something inside an agency and either they got downsized or they thought their boss was a moron or whatever. Next thing they knew they were hanging up a shingle, probably much like you, thought they would be a solo practitioner. Next thing they know, they look around, they’re like, oh my god, I have employees. How did this happen?

Jamie Lieberman:

Yes.

Drew McLellan:

Right?

Jamie Lieberman:

Yes.

Drew McLellan:

So they certainly, for the most part, did not study law, did not study business law. I think a lot of agency owners are afraid of the law. It feels to them like it’s confusing, it’s in language that no human being other than lawyers understands, and it’s expensive. What are the mistakes that we make as agency owners because we hold that misperception?

Jamie Lieberman:

Ignoring the legal issues, they’re there whether you choose to look at them or not. So most of the issues that I see are the people who stick their head in the sand and say, “This will go away, this just won’t be an issue,” until there is an actual fire. So many of the issues that come up could’ve absolutely been avoided. I don’t believe in shame, so anybody who’s sitting here and is going, “Oh my god this is me,” you shouldn’t panic about that. There should not be fear, there should not be panic. You should just say, “Okay, this is something I need to put on my list as a business owner that I need to tackle.”

When you find the right partner, when you find the right lawyer, it’s not scary and it’s not that bad because the right person will understand your business and will be able to walk you through the issues without using legalese, without using those big words that are just… they drive me crazy and I’m a lawyer. There’s no need for them, it’s very simple once you get your head wrapped around it and you’re able to step back and say, “Okay, I trust my attorney. They speak my language, they answer my calls. I don’t get a bill every single time I send an email.” When you find that relationship, and we exist, I promise, the fear instantly goes away.

Drew McLellan:

So what are the mistakes that in general, okay, I’m ignoring the issues, but what does that look like in practical terms? How does that show up and bite me in the rear end?

Jamie Lieberman:

So the biggest one is the client contract. You don’t have one or you have one that your friend gave you because you’re in a mastermind and that worked for him or her. You pulled it off the internet, there-

Drew McLellan:

What? Wait, wait, wait. Are you saying that contracts that we find on the internet are not as good? Is that what you’re saying?

Jamie Lieberman:

This is our mic drop moment where we’ve just changed the world right now.

Drew McLellan:

That’s right, there we go, okay.

Jamie Lieberman:

That’s it, we’re done.

Drew McLellan:

Thanks for listening, everyone.

Jamie Lieberman:

That’s it. Contracts on the internet are not awesome. Templates are hard and I know there’s loads of people that sell them. In some cases they may work a little but particularly agency work, what you’re doing is so customized to every client that you have to have a contract that lives and breathes with your business. It needs to be changeable, it needs to be audited once a year, it needs to be something that can change as your business changes because I know that my… I mean, I can look at myself personally who’s been in business for seven years. My clients, many of whom I’ve grown up with, we laugh about their businesses have taken so many different turns. When that happens, you have to step back and say, “Are all my legal documents protecting me? Are the things that I’m doing being protected?” So, not having a contract or not having a contract that’s tailored to your business, that’s a really big one.

Drew McLellan:

So when you audit a contract, what are the kinds of things you should be looking for or what are the kind of things when you audit? Like, if I were to show you my agency’s contract, what are the kind of things you’re looking for to make sure that it’s rock solid?

Jamie Lieberman:

So the first thing I’m actually going to ask you to do is give me a brain dump, which people always are like, “what?” I’m like, write down everything you do because everybody does something different, everybody has a different practice of different policy. It’s very specific to how you conduct business. So I need information, I need to know how you specifically do business. How do you work with clients? What issues do you see? Some people want to do that over the phone where I take crazy notes myself, or some people just give me a Google Doc of a stream of consciousness. These are my services, these are what I offer. Then I parse-

Drew McLellan:

Here’s how we bill, here’s how we charge.

Jamie Lieberman:

Exactly, yes, exactly.

Drew McLellan:

These are the industries that we work in.

Jamie Lieberman:

Here’s who my clients are, exactly, and what they’re looking for from me. So and then once I take that, I’m going to look at your contract and I’m going to make sure that the pitfalls that I can see, such as, are your deliverables clear enough in your contract? You may have 100 emails with your client telling them what you’re going to do, but if your contract’s not clear about that, that’s all that matters.

There’s this little clause in contracts that a lot of people don’t know called the entire agreement clause. You’ve seen it in every contract, nobody realizes, but what that means is, if you have a clear contract and they call it in the legal world the four corners rules, you’re not going to go outside of that contract for evidence if it’s clear from the face of the contract what the deal was. So all these emails you have and you think to yourself, oh well if there’s ever an issue we’ll go back to the emails. You may not be able to go back to the emails. So putting in your contract is really important.

So what you want to do is make sure that your deliverables are really clear, and if you do have emails and you want to reference them into your contract, that’s fine too. You can do that, you can say, “We’re going to agree to this point at a later date and we’re going to do it via email.” Then when you do it over email say, “Hey, this is incorporated into the contract. This is the timeline that we didn’t know yet,” because maybe you’re helping someone with a product launch. You don’t know certain dates, and so you may not be able to put that in your contract. That’s okay, but if you have a flexible document where you can insert that later, and make sure you insert it later, then you can cover yourself. So things like that, making sure that your deliverables are clear, laid out, and they’re detailed, including timeline.

Another one is payment. Make sure you know how your client pays you. What are the terms? Is it net 30 or is it net 90? There’s a huge difference for an agency owner.

Drew McLellan:

Right, because if you say net 30 you’re going to get paid in 90, right?

Jamie Lieberman:

Right, exactly.

Drew McLellan:

Yeah, that’s agency life.

Jamie Lieberman:

If you say net 90, it’s like six years.

Drew McLellan:

Right, right.

Jamie Lieberman:

Yeah, and so that’s really important, understanding if you’re working for a small company who’s really agile, can write you a check or throw their credit card into an invoice that’s one thing, but if you’re working for a huge corporation that has a whole accounts payable department that you have to put invoices and numbers and things, you need to know that. So you should have that noted in your agreement as well.

There are little tweaks that we make, revisions are another one. If you’re doing strategy for somebody, if you’re presenting certain ideas to somebody, if you’re doing creative for someone. How do revisions work? How many times do they get revisions? Do they get revisions on all of it, some of it, how does that work? At what point do they incur extra fees? It’s important to lay that out in the beginning because if you lay it all out, one, everybody’s happy. It’s a lot easier to go back when someone might not be happy and point, well, we agreed to this already.

Drew McLellan:

So I have 97 questions. What you are describing to me, because it sounds like you’re saying that contract is almost at a project level. In many agencies they think of that as a scope of work. So many agencies that I know have a master services agreement. So it’s like, here’s the one document I’m going to get the client to sign that does all of the, who owns what, when, pricing, if we have to sue each other, here’s the state we’re going to do it in, all that stuff. Then they have a scope of work, which I don’t think most agencies think of as a contract.

Jamie Lieberman:

So it should be exhibits. So what I usually do is I draft an MSA for an agency so that you can incorporate exhibits. That way you’re not signing this bulky document every single time.

So let’s say you have a client and you’re working on multiple projects with them and you know that. Each project can be its own exhibit to that agreement. So if after a year you’ve worked with this client and they love you so much they want to sign you on for six more projects, the way that the contract is written, it enables you to just add exhibits so that those agreements still work, and then you’re incorporating those exhibits as your scope of work. That’s the easiest way, it’s very simple to use, we don’t have a million people running through legal, but you have all the things you need in there for each project. So there’s a document we can go back to for each project and say this is what the requirements of it are. So that is usually how we would do that.

Drew McLellan:

Okay, so I’ve got a master services agreement, and then I’m going to write these exhibits that we would call a scope of work or a-

Jamie Lieberman:

Exactly.

Drew McLellan:

… [crosstalk 00:15:08]. Is that a legal document and do I have to have the client sign every one?

Jamie Lieberman:

So some people do, some people don’t. It really depends on how the master services agreement is worded. So you can make it so that you can have sign-off in a certain way so that if you don’t want to have it signed every single time, we can draft that in. A lot of people do like to have it signed just because it’s peace of mind, and I prefer that. I’m always wanting people to sign everything, but those scope of works, they don’t have to be… there’s not a lot of legalese in them because you’ve covered that in the MSA, but they are your deliverables, your revisions, things like that.

Sometimes I find ownership can sometimes go into those scope of work, because ownership can change by project, depending on what you’re doing. Sometimes, most of the time the client’s going to own most of what you’re doing but sometimes with drafts or things like that, you may want to keep [crosstalk 00:16:08].

Drew McLellan:

Or concepts they don’t buy.

Jamie Lieberman:

Exactly, and that can change. Sometimes your client wants to buy all the concepts and says, “I’m taking it all and we use it or we won’t.” Sometimes you get to keep those concepts. So ownership provisions sometimes can go in your scope of work, depending on… or you can change them in your scope of work depending on what the project is.

Drew McLellan:

So do you recommend that an agency has… and again, that they get legal counsel to do this, but they have a master services agreement that for the most part is going to work for all of their clients. They also have some sort of a template that at least says, here are the elements that need to go into this scope of work or this exhibit. Then they basically build to that recipe, if you will?

Jamie Lieberman: