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Whether you are starting a business or simply hiring a contractor to build a deck on your home, a written contract is advisable to set forth clearly everyone's expectations. Consultation with an attorney and preparation of a contract are particularly important in the following situations:

When buying an ongoing business, you should have a contract with the seller to (1) assure that you acquire all available rights connected with the business; and (2) assure that you do not assume any unwanted or undisclosed liabilities created by the former owner.

Similarly, when selling a business, the advocacy and expertise of an attorney would be beneficial to you in minimizing your tax liability; in assuring compliance with specific legal notices; in preserving your right to compete, if you so choose; and in assuring that your responsibility for the business is properly severed.

When starting a new business, or even when acquiring an ongoing business, it is important to explore with an attorney the advisability of operating your business as an independent entity, legally separate from you as an individual. By operating under one of the many available business forms, such as a corporation, partnership, limited partnership, or limited liability company, you may be able to limit your personal liability and that of your investors; establish how the business will be controlled; and take greater advantage of tax incentives. Consultation with your attorney can help you determine which organizational structure will provide you with the best protection and the most legal advantages. Also, when starting a new business, you may be confronted with selecting or protecting a name, logo, design, or invention. The need for trademark, copyright, or patent protection should be discussed with your business attorney.

Finally, if your new business is in an industry which is regulated, such as healthcare, or if you intend to do business with the government, your attorney can guide you through the maze of federal and state regulations.

Operating a business involves many auxiliary concerns, including labor and employment issues. Discrimination and sexual harassment in the workplace have recently begun to receive greater media attention and, accordingly, have come to the awareness of employees and employers, alike. In addition, the enactment of the sweeping Americans With Disabilities Act has changed many aspects of an employer's relationship with its employees, from the initial interview to termination, as well as many aspects of a business owner's relationship with its customers and the general public. A working knowledge of how employment legislation affects your business, obtained through discussions with your attorney, is essential in today's regulatory environment. Such discussions can be instrumental in good faith compliance, as well as in avoiding disputes. Should a labor dispute arise, or should you become aware of a potential lawsuit or complaint, you should be able to call on your attorney to advise you as to how best to protect your interests.

When knowledgeably established, a retirement plan or fringe benefit plan can serve as an effective incentive and reward to employees, including employee-owners, in a tax preferred manner. To achieve these tax preferences, counsel with an experienced pension and employee benefit attorney is advised.

Many people are giving more consideration to the tax implications connected with hiring individuals to work in their homes or to work with them on a business or personal project. In addition to the tax aspects, there are significant liability implications that should be considered before hiring an individual for a project. If the person is an employee, there are far greater responsibilities placed on you, the employer. By consulting an attorney before you hire someone you can discuss the legal implications of both classifications and determine which would be the more prudent avenue. In addition, your attorney can recommend appropriate terms to be placed in your written contract.

We also provide assistance in the drafting of employment policies, advising employers with regard to hiring, terminating and disciplining employees, as well as representing employers in employment disputes.

Whenever you hire someone to work for you or when you accept employment from or with another person, your relationship and respective duties should be completely and carefully set out in a written employment contract which covers such areas as the term of employment, compensation and benefits, responsibilities and liabilities of each party, and grounds for dismissal. An employment contract is of particular importance to an employer when the employee hired will be privy to trade secrets, will be provided with unique training by that employer, and/or will be likely to compete with the employer's business after the relationship is terminated. Negotiating, discussing, and reducing these issues to writing before the employee accepts the position often prevents a multitude of misunderstandings from surfacing later.

If you or your business is in the health industry, the form of your business transactions and managed care issues require the attention of our attorneys. Changing health laws and regulations, and the requirements of fiscal intermediaries, carriers or other payers, are every day business concerns. Even employment contracts and provider agreements require attention. Moreover, government relations can be affected by agreements with third party billing companies and the degree of symmetry between medical records documentation, procedure coding, and claims filing. Your attorney can be an invaluable source of guidance on these matters. In addition, if operating problems develop, your attorney may be able to resolve the problems by correspondence, informal conferences or administrative hearings instead of by court proceedings. Furthermore, he or she may be able to prevent such problems from escalating into allegations of civil fraud and abuse or criminal wrongdoing.

Duncan, Bressler & Williamson, Inc.     1020 NE Loop 410, Suite 500 San Antonio, Texas 78209     210.224.0781     Fax 210.224.6958     

Unless otherwise noted - Not Certified by Texas Board of Legal Specialization

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