What Type of Franchise Attorney Do You Really Need?
Posted on Date: Jun 2, 2016
A common misconception about the legal field is that the best lawyers are the ones who are the most aggressive, the most ready to dash off a demand letter and start prepping for the inevitable trial. Law & Order episodes aside, there are many transactional lawyers who are skilled negotiators—deal makers--who never step foot inside a courtroom, and that is very often a good thing! If you are searching for a franchise attorney to provide you with legal advice and to represent your interests, you may be using entirely wrong criteria to judge them.
The Solicitor vs. the Barrister
Our British peers have a few hundred years on us Yankees when it comes to establishing a functional and reliable legal system. Perhaps that is why there are two distinct classes of lawyers in Britain. If your image of a British lawyer includes a man in a curly white wig and long gown elegantly defending a client in court, then you are thinking of a “barrister.” What most British people mean when they talk about their lawyers is a “solicitor.” A solicitor is a transactional attorney who is rarely found in court. Instead, he or she usually works outside the court, advising clients, drafting legal documents, and undertaking negotiations on behalf of the client.
That’s all well and good for the Brits, but what does it have to do with franchise law here in the colonies? A lot actually! Many franchisees mistakenly believe that they need a barrister, when what they really need is a solicitor.
Court as a Last Resort
Too often, a franchisee assumes that the primary purpose of a franchise attorney is to assist them with a lawsuit. While an aggressive attitude may eventually be necessary if a franchisor is oppressive, fraudulent, or abusive, it should rarely be the first instinct of a well-rounded attorney whose client desires to preserve and improve the business relationship.
The best transactional attorneys see the value of approaching franchise conflicts with the mindset of a collaborative negotiator. The job of a franchise attorneys is to seek dispute resolution. Why work with a lawyer who only know how to use the blunt hammer of a lawsuit when you may be able to accomplish far more (at significantly less cost) by trying to achieve a negotiated resolution that serves the joint and individual needs of the parties?
Negotiation is a technique that can bear significant fruit and possibly save your relationship with your franchisor in the process, which will be very important the next time a problem crops up.
Of course, lawsuits and scorched earth legal tactics do have their place in the world of franchise law, but they should be considered a last resort!
Choose Your Attorney Wisely
If you are on the hunt for a franchise attorney, make sure you assess how an attorney works before signing a retainer. Consider seeking an attorney that takes a “solicitor” approach to the law, rather than a “barrister” approach. It goes without saying that the AAFD recommends starting your search with our highly qualified Franchisee LegaLineSM Network of franchise attorneys. All members of the AAFD can receive a free consultation from an attorney in our LegaLine Network.
For franchisees, and associations who wish to learn more about a collaborative approach to dispute resolution in franchising, AAFD Chairman has developed a seminar, “How to Really Negotiate a Fair Franchise Agreement.” Contact the AAFD if your association would like schedule this valuable seminar.