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.

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How prosecutors view anti-corruption compliance programs

*This blog is adapted from an article written by my partner Bruce Zagaris and published in the International Enforcement Law Reporter.

If your company does not have an anti-corruption compliance program, then you should read our
blog post on why you should have an anti-corruption compliance program.
Let’s say you have a program in place, but it didn’t work. For example, your company may have violated the Foreign Corrupt Practices Act. Now you have the Department of Justice (DOJ) weighing in on what specific factors prosecutors should consider in conducting an investigation of a company, determining whether to bring charges, and negotiating a plea or other agreement.

The DOJ on June 1, 2020 issued a revision to its guidance on the Evaluation of Corporate Compliance Programs. The new DOJ guidance provides companies general principles and elements to consider when designing, implementing, and updating their compliance policies and procedures.

The DOJ explains that the purpose of the new guidance is to assist prosecutors in making informed decisions whether and to what extent the company’s compliance program was effective at the time of the offense, and is effective at the time of a charging decision or resolution. Prosecutors can then use the guidance to determine the appropriate (1) form of any resolution or prosecution; (2) monetary penalty, if any; and (3) compliance obligations contained in any corporate criminal resolution (e.g., monitorship or reporting obligations).

The revisions to the guidance offer more information to enable companies to reevaluate existing compliance programs. Compliance programs should not remain stagnant. They need to be updated and monitored to maintain their effectiveness. The prior Compliance Program Guidance advised prosecutors to make an “individualized determination” of a compliance program. The current version recognizes that each company’s risk profile and solutions warrant particularized evaluation: “[W]e make a reasonable, individualized determination in each case that considers various factors including, but not limited to, the company’s size, industry, geographic footprint, regulatory landscape, and other factors, both internal and external to the company’s operations, that might impact its compliance program.”

A prosecutor should probe three “fundamental questions” in making his or her determination: the design of the program; company resources to support the program; and does the program work in practice.

Anti-corruption program design

With respect to the compliance program’s design the “critical issues to evaluate any program are whether the program is adequately designed for maximum effectiveness in preventing and detecting wrongdoing by employees and whether corporate management is enforcing the program or is tacitly encouraging or pressuring employees to engage in misconduct.”

Related article: Anti-Corruption Compliance Programs

Risk Assessment

Prosecutors should try to understand why the company has chosen to establish the compliance program the way that it has, and why and how the company’s compliance program has evolved over time. Prosecutors must consider whether the program is appropriately “designed to detect the particular types of misconduct most likely to occur in a particular corporation’s line of business” and “complex regulatory environment[].”

For instance, prosecutors should consider whether the company has analyzed and addressed the varying risks presented by, among other factors, the location of its operations, the industry sector, the competitiveness of the market, the regulatory landscape, potential clients, and business partners, transactions with foreign governments, payments to foreign officials, use of third parties, gifts, travel, and entertainment expenses, and charitable, and political donations.

Prosecutors should also determine if the risk assessment is current and subject to periodic review. Is the periodic review limited to a “snapshot” in time or based upon continuous access to operational data and information across functions? Has the periodic review resulted in updates in policies, procedures, and controls? Do these updates account for risks discovered through misconduct or other problems with the compliance program?

The guidance states the company should have a process to track and incorporate into its periodic risk assessment lessons learned either from the company’s own prior issues or from those of other companies operating in the same industry and/or geographical region.

Policies and Procedures

Prosecutors should examine whether the company has a code of conduct that relates the company’s commitment to full compliance with relevant federal laws and that is accessible and applicable to all company employees.

The company should communicate its policies and procedures to all employees and relevant third parties. Prosecutors should determine whether the policies and procedures have been published in a searchable format for easy reference. Prosecutors should ascertain whether the company tracks access to various policies and procedures to understand what policies are attracting more attention from relevant employees.

Training and communications

Prosecutors should assess the mechanisms ways the company has used to ensure that policies and procedures are integrated into the organization, including through periodic training and certification for all directors, officers, relevant employees, and, where appropriate, agents, and business partners. Prosecutors should also determine whether the company has communicated information in a way tailored to the audience’s size, sophistication, or subject matter expertise.

Some companies furnish employees with practical advice or case studies to address real-life scenarios, and/or guidance on how to obtain ethics advice on a case-by-case basis as needs arise. Other companies use shorter, more targeted training sessions to enable employees to identify and raise issues in a timely manner to appropriate compliance, internal audit, or other risk management functions.

Prosecutors are directed to ascertain whether the training adequately covers prior compliance incidents, and how the company measures the effectiveness of its training curriculum.

Most importantly, prosecutors must determine whether the compliance program is disseminated to, and understood by, employees in practice to determine whether the compliance program is “truly effective.”

Confidential reporting structure and investigation process

Prosecutors should determine whether the compliance program has an efficient and trusted mechanism by which employees can anonymously or confidentially report allegations of a breach of the company’s code of conduct, company policies, or suspected or actual misconduct. For instance, does the company’s compliance process include proactive measures to create a workplace atmosphere without fear of retaliation, appropriate processes for the submission of complaints, and processes to protect whistleblowers.

A new wrinkle in the Guidance is that prosecutors should ascertain whether the reporting and investigating mechanisms are sufficiently funded, and whether the company collected, tracked, analyzed, and used information from its reporting mechanisms. Prosecutors should inquire whether the company periodically analyzes the reports or investigation findings for patterns of misconduct or other red flags for compliance weakness.

Third party management

Prosecutors should assess whether the company knows the business rationale for requiring the third party in the transaction and the risks posed by third-party partners, including the third-party partners’ reputations and relationships, if any, with foreign officials. For instance, a prosecutor should analyze whether the company has ensured that contract terms with third parties specifically describe the services to be performed, that the third party is actually performing the work, and that its compensation is commensurate with the work being provided in that industry and geographical reason.

Another new requirement is that prosecutors should determine whether the company engaged in ongoing monitoring of the third-party relationships, be it through updated due diligence, training, audits and/or annual compliance certifications by the third party.

Paper tiger anti-corruption compliance programs not given credence

If you have an anti-corruption compliance program that does not expressly take into the current risks of your company due to its geographical exposure, its products and services, any new facts and circumstances, such as the need of key employees to work remotely, it is not going to hold much sway with a prosecutor.

The prosecutor must determine if the company’s compliance program has sufficient resources and empowered to function effectively. Prosecutors should probe whether a compliance program is a “paper program” or one “implemented, reviewed, and revised, as appropriate, in an effective manner.” Prosecutors should also determine “whether the corporation has provided for a staff sufficient to audit, document, analyze, and utilize the results of the corporation’s compliance efforts.”

Commitment by senior and middle management

Prosecutors should ascertain whether senior, including the board of directors and executives, and middle management are proactively involved in the compliance program.

Autonomy and resources

Prosecutors should address the sufficiency of the personnel and resources within the compliance function, particularly, whether those responsible for compliance have: (1) sufficient seniority within the organization; (2) sufficient resources, namely, staff to effectively undertake the requisite auditing, documentation, and analysis; and (3) sufficient autonomy from management, such as direct access to the board of directors or the board’s audit committee.

Incentives and disciplinary measures

Prosecutors must determine whether incentives for compliance and disincentives for non-compliance are established. Prosecutors should assess whether the company has clear disciplinary procedures in place, enforces them consistently across the organization, and ensures that the procedures are commensurate with the violations. To what extent do the company’s communications tell its employees that unethical conduct will not be tolerated and will bring swift consequences, regardless of the position or title of the employee who engages in the conduct.

Does the company’s compliance program work in practice?

One of the key and challenging questions prosecutors must answer in evaluating a compliance program following misconduct is whether the program was working effectively at the time of the offense, especially where the misconduct was not immediately detected.

Continuous improvement, periodic testing, and review

A company’s business changes over time, as do the environments in which it operates (e.g., the coronavirus pandemic,) the nature of its customers, the laws that govern its actions, and the applicable industry standards. Hence, prosecutors should consider whether the company has engaged in meaningful efforts to review its compliance program and ensure that it is updated and current. Companies survey employees to gauge the compliance culture and evaluate the strength of controls, and/or conduct periodic audits to ensure that controls are operating well, through the nature and frequency of evaluations may depend on the company’s size and complexity.

Investigation of misconduct

An effective compliance program has a well-functioning and appropriately funded mechanism for the timely and thorough investigations of any allegations or suspicions of misconduct by the company, its employees, or agents. An effective investigations structure will also document the company’s response, including any disciplinary or remediation measures taken.

Analysis and remediation of any underlying misconduct

An effective compliance program can be tested by the extent to which a company can conduct a thoughtful root cause analysis of misconduct and timely and appropriately remediate to address the root causes.

What companies should do

Companies should take the opportunity of the DOJ’s revisions to the guidance to update their compliance plans, especially in the context of assessment of specific risks, such as new contracts, new products, new third party agents, and changed environment, including the pandemic and remote work. They should re-evaluate the accessibility and use of policies and procedures as well as their training programs.

Data driven efforts assessing the effectiveness of a compliance program are increasingly required. Depending on the size of the company, a third party review carries more weight than an internal review. Companies may want to engage an anti-corruption compliance lawyer to assist in creating, revising or assessing an anti-corruption compliance program.