Lawyers Are People Too

I’ve been very busy with work and growing my practice. Today, a client took the time to forward a comment from the opposing side:


Ordinarily, CAPSLOCK drives me crazy.

This time it made my day.

Spring Has Sprung

Back in February, I sowed all of the saved seeds, watered them, covered them, placed them on heat mats and hoped for the best.

Sure enough, 5 days later, the magic of germination was in full force.


6 weeks under flourescent light over heat mats with a rotating fan to provide some “wind” and we were rewarded with two trays full of very healthy seedlings. (On a side note, I am not primarily located in California right now, so good friends are graciously acting as my greenhouse and plant stewards between visits.  I suspect that’s why the plants look so great this year.)



Since then, they’ve been transplanted to individual dixie cups and will be ready for distribution to fellow tomato lovers in 2-3 weeks.

So if you have an interest in home-grown tomatoes, let me know.  I will be delivering tomato seedlings to all takers in the San Francisco Bay Area starting April 18th.

Clean Tech Regulation and Government Funding

Today, I arrived at the Clean Technology Law Symposium excited to learn more about the current state of the law in clean tech.

It was an excellent event, and the organizers deserve much credit and thanks. Overall, I found myself continually impressed by how many areas of the law are implicated with clean tech law, policy, and business. Speakers touched on antitrust, international intellectual property, patent pools, compulsory licensing, economics, politics, state regulation, federal regulation, international treaties, financing, science, the current technology of the energy grids in deployment, and new developments in technology.

Arthur J. O’Donnell, executive director of CRS (the Center for Resource Solutions) gave a great keynote full of the history and culture behind the U.S. and California energy grid development and regulation. He pointed out that in most clean tech companies and industry events, there is a real dearth of folks from the existing utilities communities. And, in his opinion, leaving them out of the conversation is a big mistake. The large public utilities and the regulations that govern them are huge forces in the energy market and will continue to be so, regardless of where the clean tech revolution takes us.

Additionally, Matthew Dunne of ARPA-E (a subsidiary of the US Department of Energy) spoke about the financial assistance his organization provides to innovators in clean tech. Unfortunately, there are currently no open solicitations for competitive bids, however, he did inform us that ARPA-E does accept unsolicted proposals.

I left with a very real sense that clean tech is an exciting area for disruptive technology and, a very dynamic area of the law due the number of intersecting legal subspecialties it touches.

You Don’t Have to Talk to Their Lawyer

Occasionally, a client calls me to tell me that the other side’s lawyer reached out directly to them and wants to have a quick direct conversation to discuss the outstanding issues.

In California, Rule 2-100 of the Professional Conduct Rules says that a lawyer may not speak with the opposing party directly (if the opposing party has counsel) without getting the opposing party’s lawyer’s consent.

ABA Rule 4.2 says roughly the same thing.

In litigation or active disputes, this rule is almost always scrupulously observed. But in business deals, where things are less contentious, sometimes people forget.

So, in short, no, if their business folks decide it’s time to bring in their lawyer, you don’t have to take the call without your own lawyer to back you up. The other side’s lawyer can talk to you, but only if you (and your lawyer) consent.

Negotiating Against the White House

One of my clients is in the process of entering into a deal with the White House.

Typically, my start-up clients find it very frustrating to try to do business with government agencies. Start-ups and government agencies operate on two very different time scales.

So, it’s a pleasant surprise to learn that the White House is actually much more nimble and flexible than most federal agencies. They understand more about the world my clients live in than any other governmental agency I’ve ever worked with.

And, I must say, the folks who represent the White House are some of the nicest and most reasonable opposing counsel with whom I’ve ever dealt.

The Techiest Use of a Garden

Recently, we were invited to dinner at our friends’ home. They pulled out what appeared to be a chemistry set to make dessert:


Clearly, this was going to be a *very* technical dessert.

Apparently, our hosts were fans of molecular gastronomy. You know, like El Bulli. And the use of such fun ingredients as alginate, and sodium calcinate, plus a scale, mental math, a Vitamix for purées and high velocity hand-whisking:


First, we made the fake roe — aka, apricot peach purée boules:



Then, we made the faux nori (aka rolled chocolate over crushed tin foil):


We filled the rolls with rice pudding, aka sushi rice, and we sliced some “ginger” aka, Georgia peaches:


With the addition of pistachio-nut butter “wasabi” and raspberry purée “soy sauce” our desserts were complete:


Truly, this is one of the techiest things you can do with things that come from a garden:


Open Source Hardware

One of the main differences between GPL v 2.0 and GPL v 3.0 is the modifications made to address some folks’ concerns that to truly embrace the idea of “Free” or “Open” software, the license must also prohibit restrictions at the hardware level that would prohibit folks from modifying the software.

The natural extension of this concept is the idea that there should be a way to contractually ensure that hardware should also be “Free” or “Open” to modification by its users.

In the software world, we have the Open Source Definition or “OSD,” as a set of community-defined principles to guide the use and development of the term “Open Source Software.”

Now, in the hardware world, a consortium of folks have proposed a draft Open Source Hardware Definition that hopes to establish the same thing for the term “Open Source Hardware.”

Today’s version of the draft indicates that they are drawing from the OSD, as well prior drafts of their proposal and the TAPR Open Hardware License.

I wish them the best in their efforts to converge on an agreed set of principles and look forward to working with the term FOSS/H in the future.


I received a form license agreement from the other side (a Fortune 100 company) with this most excellent Y2K provision the other day:

Supplier represents and warrants that neither performance nor functionality of the services, Products or systems is or will be affected by dates prior to, during and after the year 2000.

It’s not like I can strike it and argue that it shouldn’t apply.

But, really?

How To Find Your Start Up Lawyer

There are any number of ways to go about finding the lawyer that is the right fit for your new company. Matt Bartus recently posted his thoughts on some of the questions you should ask.

Overall, I agree with Matt, you should ask all of the questions he poses and evaluate the answers. However, I have a few additional points that you may wish to consider:

1. If you are bootstrapping your company entirely, and do not expect or intend to take any venture financing because you intend to build a successful cash business that you want to privately control, you may need to question much of the traditional “start-up” legal (and business) advice.

Specifically, if you are covering your own costs out of pocket, you will probably best served by finding two or three good specialized solo attorneys or attorneys at smaller law firms who specialize in the types of services you will need for small emerging businesses. These attorneys are likely to offer fast responses to your needs in the areas where you have issues, but they will have significantly less overhead (and thus significantly lower fees) than a traditional large law firm.

While many large law firms defer billing if they believe you will be getting venture capital funding or if you will be experiencing a liquidity event in the near future, if that is not your goal, it is likely that you will be asked to pay your fees to keep your account current.

2. The large law firm industry’s focus on “Senior Attorneys” “Junior Attorneys” and “Partners” is very different from the meritocracy within the start-up culture.

Rather than focus on how advanced an attorney’s skill set is, most large law firms categorize attorneys solely based on the number of years that each attorney has been in legal practice. This means, that in most firms, the titles are not related to how talented or how effective the attorneys are (with the exception of equity partnership, which often is an indicator of excellence as it is peer-selected).

It is possible that a Junior Attorney is actually a professional with 15 years of relevant business experience coupled with 2 years of legal training. In fact, at one law firm where I worked, an individual with a PhD and 18 years of relevant biotech experience started on day one as a “first year associate” in patent prosecution alongside his 24-year-old colleagues who hadn’t worked a day in the professional world. So, while I would agree with Matt that Junior Attorneys are often not more cost effective than attorneys with more experience, that is not always the case.

On the other end, it is possible in some law firms to earn a business card with the title of “Partner” after a set number of years (often 7 or more) so long as the attorney has billed the requisite number of hours each year. In these law firms, the partnership is often stratified between equity partners, income partners, partial equity partners, etc. An income partner may or may not be very talented, but the “Partner” title alone is not sufficient to guarantee that they will provide the skills you need. So, again I agree with Matt: ask for references and follow up.

3. A good solo or small firm attorney can act like in-house counsel — a cost-effective go-to first responder who evaluates the risks and, if necessary, can act as a gatekeeper to help manage the additional service providers who may be necessary to get the job done.

I work in many capacities with my clients, but the most common role I play is this — my clients have identified that the majority of their day-to-day legal needs fall into the category of “commercial contracts” that focus on intellectual property in all of its forms, services, and money. Because this is my specialty, I provide them drafting, editing, advice and legal analysis in this category, and when they ask for something outside of my expertise, I explain my relative inexperience, and let them know that I have a choice:

a) If I think it’s close to my practice area I can do the research and determine whether I think I can learn what I need to know to do a good job and then offer to do it while writing off my professional education time; or

b) I can refer them to someone I believe is a good fit for their needs.

In this way, my role as a solo practitioner is much more like the role a dedicated in-house counsel plays within larger companies (in-fact, I work on-site to support an in-house legal department of a public company one day per week, and in that capacity, I’ve been impressed by how important management of outside law firms is to running a successful legal department).

So, yes, a solo practitioner or small firm attorney who specializes in transactional work can’t walk down the hall and ask a litigation partner how to manage a dispute. But, if they are good, they should have a great network of qualified attorneys to whom they can refer. They can call litigators with whom they are currently working (I’m working with two litigation partners on a dispute for one of my clients right now), or with whom they’d like to work in the future (I’ve had several litigators take me out to lunch to pitch their expertise and desire to work with my clients) and ask for some professional courtesy advice.

A solo or small firm attorney can refer you to the best fit, no matter who they are, without fear of offending “the attorney down the hall.” And, if you do (and I hope you don’t) find yourself in need of a litigator, a good solo (like a good in-house counsel) can help you manage a competitive bidding process to ensure you get the best fit at the most cost effective price for your needs.

Open Source Legal Docs?

Ted Wang, with the support of Andreessen Horowitz, recently posted some open source legal document forms for companies seeking seed funding.

It’s an interesting concept, and in the abstract, one that I’ve been thinking about for quite some time.

I think, in general, the open source software movement has changed the game.  Not by devaluing the skills of the individual developers, but by decentralizing the control of the software they write from the few corporations to the many of the masses.

This change has resulted in amazing progress in some areas, and, of course, ridiculous amounts of navel gazing in others.  But, at a high level, what it’s really done is to move the value associated with the software from the centralized control of powerful corporations to the decentralized control of the skilled individuals who contribute the copyrighted works.

And, in doing so, it’s shown that In many contexts, the value of open source software is not in the copyright to the code of a particular project, but rather in the goodwill of the community that is supporting, maintaining, and potentially following the direction of the steward of the code of that project.

By analogy, it’s not like posting documents that are freely available in the legal start-up space is a new move.  The National Venture Capital Association has made its standard forms available for many years.

But, the difference with Series Seed is the stated goal.  The open legal document movement, if it is to succeed where it applies to start up companies, is in desperate need of a dedicated community, and most likely, a community-trusted steward who will take this project on and protect it, preside over disputes, and act as a neutral third party when folks with an interest in the project have different goals.

It should be interesting to see if the Series Seed project moves in this direction and is able to play this role in the seed funding community.