Whether you are starting a small business or running an established company, it is vital to understand business laws and regulations. But that is easier said than done. My goal is to provide business-related legal services so that you can spend more time dealing with the actual business and less time with legal intricacies of operating your business. My services include:

Business formation

You have a new and innovative product or service and you are interested in forming a new business. You may have concerns about liability, taxes, investors and other considerations. As your small business lawyers, we will assist you in deciding whether your startup business should organize as a limited liability company (LLC), partnership, S corporation or C corporation. We will form the most appropriate business organization for your new business and register the business in all jurisdictions in which it will conduct business.

Mergers and acquisitions

If your business is fortunate to thrive and become a merger or acquisition target, we can represent you as the seller; or if you are on the other side and looking to acquire a business, we can assist with the due diligence in purchasing a business. We will review various approaches in purchasing a business through merger or acquisition. We will discuss with you various structures in purchasing the stock or purchasing the assets of an acquisition target. In either case, your business will need thoughtful and comprehensive representation in all aspects of a merger or acquisition.

Government contracting

Government contractors face numerous issues when contracting with the government. And with a hands-on approach and substantial experience, we will help you navigate those legal issues. We prepare teaming agreements, subcontracts and joint venture agreements and can handle a variety of other government contract matters. As government contract lawyers for your small business, we can assist you in applying for programs for HUBZones, service-disabled veteran-owned small businesses or women-owned businesses. If your company is facing debarment or suspension because of allegations of corruption or bribery, we can assist in your defense before the U.S. government or the World Bank.

Business transactions

Once you have an ongoing business, however organized, you will have a host of various commercial transactions. We prepare agreements with lenders, lessors, partners, customers, employees, and consultants. We provide business legal services for your company, preparing confidentiality agreements, nondisclosure agreements, licensing agreements, distribution, employment agreements, independent contractor agreements, lease agreements, and many others. We will help you understand what each part of these agreements require and make sure that these agreements provide protection to you and your business.

Corporate law

Once your startup business has been created, your company will have ongoing requirements to maintain its separate status. We will assist in guiding you on how to prepare corporate minutes or resolutions of the company to maintain the corporate form and other steps to protect the limited liability of your company. You will also have to make sure that your bylaws or operating agreement continues to reflect the needs of the business organization. We are available to assist you in addressing these issues. And once your company is ready to raise additional capital from investors, we can work with you to determine whether you are subject to securities laws or fall within one of the exemptions.

Business disputes

Few businesses are immune to business disputes. If your small business was well-advised, you have an agreement that will provide guideposts on how to resolve your business dispute. If you are unable to settle your dispute, you may have a dispute resolution mechanism such as mediation or arbitration in the agreement. An alternative dispute resolution mechanism such as arbitration or mediation generally can provide a relatively quick resolution of your business dispute. If not, then you may have to consider litigation. We handle business disputes, including pre-litigation matters, mediation, arbitration and litigation.

Anti-corruption compliance

Every company should have procedures and policies to minimize its exposure to allegations of corruption or bribery. An integrity compliance program (ICP) is essential for businesses doing work internationally for the United States government or work financed through one of the development banks. We can assist in reviewing or preparing an ICP to assure that is consistent with the anti-bribery and anti-corruption guidelines from the World Bank. If your company is facing debarment or suspension because of allegations of corruption or bribery, we can assist in your defense before the U.S. government or the World Bank.

Non-profit law

We work with organizations to obtain their tax exempt status under Section 501(c)(3) of the Internal Revenue Code. There have been recent changes to obtaining 501(c)(3) status and we have worked with organizations in submitting successful applications on the simplified track by filing a 1023-EZ and the more rigorous 1023 application for larger organizations. Nonprofits also face similar legal challenges to assure that they comply with business requirements and additional requirements to assure that they do not jeopardize their tax exempt status. As a law firm for nonprofits, we work with nonprofit organizations to guide them through these issues.

FAQ Small Business Attorney in DC

What is considered a small business?

Almost all our clients fall within the definition of small business/startup as determined by the Office of Advocacy of the U.S. Small Business Administration. Under this definition, a small business has fewer than 500 employees. Small businesses encompass about 99.9% of all business organizations in the United States.

Which industries do you serve as a small business attorney?

Most of our clients are service providers such as consulting companies, law firms, accounting and bookkeeping services, cybersecurity consultants, video production companies, and lobbyists, just to name a few. We also represent foreign and domestic manufacturers and software developers.

As a small business lawyer in DC, we represent some retail operations, such as bookstores and restaurants. We also represent numerous nonprofits with varying missions. Our government contractors clients hold various IDIQs (Indefinite Delivery, Indefinite quantity Contracts) and GSA schedules.

In which areas of the law does a small business or startup need legal assistance?

Most times, small businesses/startups need the services of outside general counsel. As outside general counsel for small businesses, we can handle most matters as a small business attorney that small businesses generally encounter. Usually, anything with the word agreement or contract is within our practice areas. This includes operating and shareholder agreements, which are used for small businesses and startups that are formalizing their relationships with their owners. Once a business is formed, then we prepare and review a host of other agreements, such as service agreements (which may be referred to as client agreements or consulting agreements), independent contractor agreements (which may be referred to as subcontracting agreements), employment agreements, teaming agreements, purchase and sale agreements, merger agreements, option agreements, license agreements, lease agreements, and the list goes on.

What factors should a small business and startup look for in retaining the services of a lawyer for small businesses?

With our extensive experience of working as a small business attorney in DC for decades now, background and experience should come right at the top of the list when looking for a small business lawyer. We think that accessibility and communication are essential for a successful relationship between an attorney and a client. Hourly rate is important but not as important as quality of service.

What kind of experience do you have in advising small businesses as an attorney?

Keith Rosten has not only legal experience but also business and practical experience that allows him to relate to the trials and tribulations of a small business owner. Keith has BigLaw experience before working for small and medium-sized businesses, first at his own law firm focused on small businesses and then with Berliner Corcoran & Rowe LLP.

Keith has substantial business experience. He received an MBA from the Tuck School at Dartmouth College. During his business studies, he worked on several group projects with small businesses, including a furniture manufacturer, a manufacturer of leak location precision equipment, real estate developer. After business school, Keith operated a successful real estate business in California and overcame numerous issues, such as asbestos abatement and underground storage tank remediation.

Keith worked as a legal adviser to a government contractor and was a legal adviser to a major initiative in Russia. Keith ran another small business, selling and marketing solar energy equipment. The business had an e-tailer component, hosted the largest solar energy forum online, and sold solar energy equipment to the government. Keith negotiated two GSA schedules for the business and obtained HUBZone certification for the business. Keith was also president of the Dartmouth Entrepreneurial Network – Washington, a networking organization for small businesses in the greater Washington, DC community.

Keith has also volunteered for Compass Pro Bono, working with local business professionals to conduct long-term consulting engagements for local nonprofits in fundraising, governance, and strategy.

With this breadth of legal and business experience, Keith is attuned to some of the challenges facing small businesses, which allows him to provide effective advice and guidance.

As a small business lawyer, do you take in-person meetings only?

Yes. We are located in downtown Washington DC and host many of our clients. For those clients who cannot come into our offices, we usually meet over Zoom or by telephone.

How do you charge for your services as a small business attorney?

We charge our clients based on hourly fees. We usually provide a budget of how much certain matters cost so that startups and small businesses know in advance the ballpark cost of the matter.

What if a client does not like our services?

Clients can terminate our services anytime if they don’t find it satisfactory.

Should my small business lawyer or startup lawyer be in the same state as me?

No, not always necessary and may depend on multiple factors. For example, though we are an expert small business lawyer in DC, we have also provided consultation to other cities’ clients.

WOSB Businesses Require Certification

Many small businesses especially here in Washington, D.C. are government contractors. They seek the services of a small business attorney to navigate the difficult landscape of government contracting. One significant lever to allow these small businesses to compete in the government contracting arena is to qualify for one of the contracting assistance programs, such as the program for service disabled veterans, HubZone, 8(a) business development program and women owned small business program, all administered through the Small Business Administration.

Advantages to qualifying for contract assistance program

stockbroker © 123RF.com

There are several advantages if your small business qualifies for one of these certifications. One major advantage for small business government contractors is that the government can award you a sole source contract for that designation. Sole source contracting is not that frequent.

Much more common is what are known as government set-asides. If the government has set aside a particular procurement for that designation, only those companies that are qualified for that program can compete for that procurement.

Possibly the most significant advantage is that the government agency can meet its targets by awarding a contract to a company within that designation. The government currently has set targets for each of these assistance programs. For example, a government department may set a target of awarding 5% of all government contracts to women owned small businesses. Each agency takes these targets very seriously. A government agency can meet its targets by awarding a contract to you, if you qualify for one of the designations.

Prime contractors also have subcontracting targets for small businesses. Those businesses that meet the requirements of one of the contracting assistance programs will be much more attractive to a prime contractor for subcontracting opportunities.

Related article: Government Contracting: Teaming Agreements

The government contracting market may be a hard nut to crack, but if you qualify for one of these assistance programs, you will definitely get a much more receptive ear when you market your product or services to a government agency or prime contractor.

Government regulations complex

To qualify for one these programs may be more challenging that it seems at first blush especially after wading through the morass of federal government regulations. In this article, the focus is on women owned small businesses (WOSB), but the regulations regarding the other assistance programs are similarly technical.

Even though the title suggests that a WOSB simply needs to be owned by a woman, the regulations specify that to qualify as a WOSB, the business needs to be “owned and controlled” by one or more women.

Owned by women

Ownership in the government’s eyes means owned “unconditionally and directly” by a majority of women. This is an easy bar to meet if your small business is formed as a corporation and all of the shares are in the hands of women; or if the business is formed as a limited liability company, all of the ownership interests are in the hands of women.

If there is more than one class of voting stock, then each class of voting stock for a corporation, and each class of membership interests for a LLC must be owned by one or more women. A business with a voting trust or executory agreements will be subject to further scrutiny to determine who owns the business.

WOSB must be controlled by women

The business must be “controlled” by one or more women. If your corporation has an all women board overseeing all women executive officers, then you can readily meet this requirement. But reality is usually not so clear cut. There usually are many nuances that diverge from this clean model.

The regulations make it clear that the “management and daily operations” must be controlled by one or more women. The highest officer in the company must be a woman. Ultimate managerial and supervisory control must reside with a woman. The government interprets these provisions strictly. If a man has a veto right over certain decisions, then the business may not qualify as a WOSB.

For example, if the operating agreement of the LLC contains certain categories of decisions requiring unanimous consent of the members, then if one of the members is a man, then each of those decisions must be analyzed to determine if the man can block an operational decision. If the man in effect has veto rights over certain fundamental decisions of the organization, the company may not quality as a WOSB.

Similarly, the government requires that the woman in charge devotes full time to the business during the normal working hours of the industry in which the business operates. Usually outside employment is not compatible with management and control of the business. If the business is a LLC, the women must control all of the decisions of the LLC. And if the business is a corporation, one or more women must control the board of directors.

Men are not completely excluded, but they may not exercise actual control over the business or have the power to control the business. For example, if an operating agreement requires 80% of the membership interest in a LLC to approve to a member’s compensation, or to spend more than $10,000 or to borrow any money on behalf of the LLC, then even if 51% of the LLC were owned by a woman, the woman would not be deemed to control the company.

No more self-certification, but…

The rules and regulations regarding WOSBs are complex, and some may say, obtuse. They are subject to varying interpretations. Whether because the regulations are not entirely clear, or because business owners have intentionally skirted the rules, there was considerable abuse to qualify a small business as a WOSB. Up until last year, business owners were allowed to certify their business as a WOSB. No longer, although there is an exception.

As of October 15, 2020, if you want to compete for set-asides or sole source government contracts as a WOSB, then you must apply to the government on the SBA website or obtain a third-party certification from an approved vendor. The government will no longer allow businesses to certify themselves as WOSBs, if you want to be eligible for a set-aside or sole source government contract.

Nevertheless, if you simply want to be included in the targets of the government procurement or within the targets of a prime contractor as a WOSB, then you are still allowed to self-certify and hold yourself out as a WOSB, provided, of course, that you qualify for the program.

Having the certification of a women owned small business can be a critical lever for success. But the rules can be challenging regarding what it means to be owned and controlled by women. Those small businesses who are interested in learning more about how to qualify may want to consult with a government contractor attorney.