The starting point for preparing an agreement is learning who the necessary parties are. You’ll need to ask these questions about your client: Is it an individual, the sole proprietor of a business, a partnership (general or limited), or a corporation?
If it is an entity, is the person representing it the owner, an officer, or a partner? What authority does this person have? Can he or she make binding decisions on crucial points in the transaction? If not, should others be involved in planning or negotiating?
When the client is an entity, you have to conform your representation to the fact that the client is the organization itself, not the individual with whom the attorney is dealing. Cal Rules of Prof Cond 3–600. Make sure that the individual understands this.
You should also:
- explore whether the individual has conflicting fiduciary and personal interests, and
- suggest that the individual may want to retain separate counsel to protect his or her personal interests if they conflict with those of the business entity (if such conflicting interests exist, it may be necessary to identify another individual in the business entity as its representative for discussions on the entity’s legal representation).
If you represent the interests of both the business entity and the individual, make it clear to the individual and the other officers of the entity that the final resolution may not fully serve the best interests of both the business entity and the individual.
Before you prepare any type of agreement, there are several issues you should discuss in your first client meeting. Get practical advice on all of these issues in CEB’s Drafting Business Contracts: Principles, Techniques and Forms, chap 4.
Other CEBblog™ posts you may find useful:
- 5 Writing Tips for Every Contract You Draft
- Draft Agreements with Contract Construction Principles in Mind
- 7 Contract Damages Provisions to Bargain Over
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