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.

Landlord and Tenant Negotiations for Commercial Leases

When you are starting your small business, you may be working out of our home, which is all too common in the post-pandemic era. As your business grows, you may need a physical location either because you are a retail business, or because you need a central place for employees to gather, or possibly simply because you like working in an office. This article highlights some of the major issues that will be the subject of negotiation for a commercial lease between a landlord and a tenant.

Who has the bargaining power?

As an initial matter, each side should figure out who has the negotiating power. If you are a small business and looking to lease a small office in a large downtown office building that has few vacancies, you are likely not have much to negotiate. The landlord will simply say, “Here’s the lease and sign on the dotted line if you want to move in.” Your small business attorney may want to educate you on the effect of various lease provisions before you sign, but in the end you won’t have very much to negotiate with the landlord.

On the other hand, if you own a restaurant and are looking for a retail space in a building that has long been vacant, which is basically anywhere in any downtown area in the past couple of years, then you are going to want major concessions in rent, tenant improvements and other issues from the landlord. These issues are discussed in this article.

Rates per square footage: what constitutes a square foot

Most folks have an understanding of dollars per square foot and all of the major websites advertising lease spaces will give you a figure. That is well and good except that there are different norms for measuring the leased premises. For example, rent in an office space may be calculated on the “rentable square foot,” which include square footage of the leased premises, but also some allocation for common areas. For other spaces, there may be a question of whether you measure from the outside of the walls or from the inside.

In some parts of the country, it is typical to designate the leased premises and then say “approximately x square feet.” In other words, you are renting by the pound and if you are off on the square footage, you don’t have to go back and adjust the fixed rent for the space.

Gross versus net leases

Another major consideration in determining the lease amount is the kind of lease. In general, there are three different kinds of leases: triple net; gross; and modified gross.

A triple net lease means that the tenant pays not only for the base rent, but also real estate taxes, operating expenses and insurance. Strip mall space is a good example of space usually rented triple net. A gross lease includes in the rent the estimated real estate taxes, insurance and the landlord’s operating expenses. A warehouse lease is often rented on a gross basis.

A modified gross lease means that the tenant is responsible for the base rent and sometimes increases in operating costs, real estate taxes and base rent.

Rent concessions: are you going on holiday?

You still may not be comparing apples to apples when you are comparing spaces. In this environment, many landlords are offering rent holidays. A rent holiday simply means that the tenant does not have to pay rent for a period of time. The length of a rent holiday typically depends on the length of the lease; the longer the lease, the longer the holiday.

Lease terms and renewals

In general, the landlord will want a longer term lease and will offer more concessions for a longer-term lease. But in some cases, especially when there may be an uncertain future (the landlord plans to demolish the building) or where the tenant base is unstable (a lot of tenants moving in and out), the landlord may prefer shorter term leases.

The tenant may want to request an option to renew, especially in retail spaces where the location is critically important. If a tenant is selling its business, one key consideration will be whether the new owner can assume the lease.

Related article: Selling a Small Business: Not as Easy as you Thought

Tenant improvements

Another major concession may be whether the landlord grants the tenant any concessions for tenant improvements. A tenant improvement can be relatively minor like putting up some drywall or carpeting a space. but for other tenants, usually retail tenants such as restaurants, the tenant improvements may be extensive and expensive.

Part of the lease negotiations will be who pays for the tenant improvements, who controls the tenant improvements and what happens if the tenant improvements run over budget.

Purpose: permitted uses

The landlord may want to impose a narrow purpose on the tenant, depending on the nature of the lease. There are different kinds of leases such as office leases, industrial leases and retail leases. If the tenant is leasing a space in a mall, you can expect that the landlord will want to impose a narrow purpose as the mix of tenant uses is central to the success of the mall. On the other hand, if you are renting a storage space, the landlord may not be as concerned about what you are storing so long as it is not a hazardous product.

Guarantees

If you are the tenant, your purpose may be to minimize your risk. What happens if you go out of business? In general, for a new business, the landlord will require some kind of guarantee from the owners of the business or a third party against whom the landlord can proceed if the tenant defaults on the rent.

The terms of the guarantee will be a subject of negotiations. How long should the guarantee last? It could last for the entire term of the lease (good for the landlord, not the tenant) or some shorter period of time. Some tenants may be able to negotiate a maximum limit on a personal guarantee, depending on the bargaining leverage of the parties.

If you are the landlord, are you required to mitigate your risk and try to lease the premises after a tenant does a midnight move-out. Does the landlord have to try to find another tenant, or can they sit back and go after the tenant for the entire lease term rent?

In some parts of the country, tenants may be successful in negotiating a “good-guy clause,” under which so long as the tenant vacates the premises and returns them to the landlord in good condition, then the guarantee expires when the tenant moves out—usually the guarantor may still responsible for the rent before the tenant vacates. Why would a landlord agree to this provision? Because in some parts of the country it can take many months to evict a tenant, even if the tenant is many months in arrears.

Conclusion

For many small businesses, the lease is an important lever of success for the business. The rent will be a major part of the company’s expenses. The selection of the space and the negotiations for a lease will likely determine the success or failure of the business. We have reviewed the most important terms in a lease, but there are many others. Even if you do not have much leverage in the negotiation, you should consult with your small business lawyer to assure that you understand your responsibilities and your risk factors in entering into a lease.