Ongoing Legal Counsel for Brickell Businesses

Outside general counsel for businesses is an ongoing legal relationship. A company keeps one outside lawyer to answer questions as they come up, instead of hiring a lawyer for each problem. KEW Legal offers this to business owners and investors in Miami-Dade and South Florida, including owners in Brickell. The firm’s offices are in Coral Gables and Sunny Isles Beach. Kristina E. Wilson is the lawyer responsible for this page.

What outside general counsel means for a business

Outside general counsel is a standing relationship between a company and its outside lawyer. The lawyer reviews contracts, advises on disputes, and helps with the legal side of running and growing the business.

Owners often need this kind of help when:

• A vendor contract has unclear terms for ending the deal.
• A partner wants out, or stops cooperating.
• An employee leaves and takes customers or information with them.
• A tenant stops paying rent.
• A sale, succession or ownership change is coming.

This relationship fits owners of closely held companies, co-owners of LLCs, investors who hold commercial property, and owners who live outside the United States but have businesses or property in Florida.

Matters KEW Legal handles for businesses

KEW Legal focuses on nine business law areas. Each one ties back to Florida law you can check yourself.

Partnership and LLC disputes

A Florida LLC’s operating agreement is the starting point. Under Fla. Stat. § 605.0105, the operating agreement governs relations among members and between members and the company, within the statute’s limits.

Managers and members also owe duties. Under Fla. Stat. § 605.04091, each manager of a manager-managed LLC and each member of a member-managed LLC owes fiduciary duties of loyalty and care to the company and its members. The duty of care means refraining from grossly negligent or reckless conduct, willful or intentional misconduct, or a knowing violation of law.

For Florida corporations, Fla. Stat. § 607.0830 requires directors to act in good faith and in a manner they reasonably believe to be in the best interests of the corporation.

Contract and vendor disputes

A contract cannot shorten that time.

Arbitration clauses matter too. A written agreement to arbitrate is generally enforceable under Fla. Stat. § 682.02. The court decides whether an arbitration agreement exists.

Fee clauses also matter. If a contract lets a party recover fees for enforcing it, Fla. Stat. § 57.105 lets the court allow fees to the other side when that side wins.

Employment law for employers

Employers need to know which workers can be paid overtime. Under section 541.600 of the federal wage-and-hour regulations, to qualify as an exempt executive, administrative or professional employee under section 13(a)(1) of the Act, an employee must be compensated on a salary basis at a rate of not less than $684 per week (or $455 per week if employed in the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin Islands by employers other than the Federal Government, or $380 per week if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities. The compensation requirements do not apply to employees engaged as teachers, to employees who hold a valid license or certificate permitting the practice of law or medicine and are actually engaged in the practice thereof, or to employees who hold the requisite academic degree for the general practice of medicine and are engaged in an internship or resident program. Employers also need signed, well-drafted restrictive covenants for key staff. Those are covered in the next section.

Business sales, acquisitions and succession

Paperwork should match the deal. Under Fla. Stat. § 542.335, a court will not enforce a restrictive covenant unless it is in a writing signed by the person against whom enforcement is sought.

The party seeking enforcement must also prove a legitimate business interest. That party must also prove the restraint is reasonably necessary to protect that interest. If a restraint is overbroad or overlong, a court shall modify it and grant only the relief reasonably necessary.

Buy-sell terms, ownership transfers and seller non-competes should be drafted together. Our practice reviews them together so the operating agreement and purchase documents fit.

Commercial leases and commercial evictions

A commercial lease sets the rules for rent, repairs, default and ending the tenancy. KEW Legal reviews those terms before a dispute grows. The firm also handles commercial evictions for owners who live abroad. The right steps depend on what the lease says and what has happened under it.

Real estate investment

Foreign owners who sell U.S. real property face federal withholding rules. As a general rule under Internal Revenue Code section 1445, when a foreign person disposes of a United States real property interest, the buyer must withhold 15 percent of the amount the seller realizes, but the rule applies “except as otherwise provided” in that section, and the section sets out exceptions, so whether withholding applies depends on the specific transaction. Owners who hold Florida property through an LLC should review the company’s structure before a sale closes.

How the process works

You start with a free first consultation. Then the lawyer reviews your documents and lays out your options.

1. First consultation. The first consultation is free, confidential and carries no obligation to continue. Bring the contract, lease, operating agreement or dispute papers.
2. Document review. The firm reads the agreements and flags deadlines, notice requirements and fee clauses.
3. Action. KEW Legal handles negotiation, demand letters or court filings, as your matter requires.
4. Ongoing counsel. The relationship continues as your questions and business change.

How long each step takes depends on the facts of your matter. Your first consultation will give you a clearer sense of the path ahead.

Why owners work with KEW Legal on business matters

• Business law focus. The practice focuses on business law for owners and investors.
• Offices. KEW Legal has offices in Coral Gables and Sunny Isles Beach.
• Service area. The firm serves clients in Miami-Dade, Broward, Brickell, Aventura, Doral, Miami, Fort Lauderdale and South Florida.
• Lawyer. Kristina E. Wilson is the lawyer responsible for this page.
• Support staff. Our team includes support staff who help keep your file organized and moving.
• One relationship. Partnership, contract, employment, sale, lease and property questions can all go to the same outside counsel.

Common mistakes that make business disputes harder

Owners often make the same avoidable errors. Here are the ones that cause the most trouble:

• Waiting too long. Waiting can make records harder to gather and pin down.
• Relying on unsigned or vague restrictions. A non-compete that is not in a signed writing cannot be enforced under Fla. Stat. § 542.335.
• Leaving buy-out terms out of the operating agreement. Under § 605.0105, the operating agreement governs member relations, but where it does not address a matter, the default rules of the Florida LLC chapter govern that matter instead.
• Ignoring offers of judgment. A written offer under Fla. Stat. § 768.79 must say it is made under that section. If a defendant’s offer is not accepted by the plaintiff within 30 days and the judgment is at least 25 percent less than that offer, the defendant may recover costs and fees.
• Filing claims without support. Under § 57.105, a court shall award a reasonable attorney’s fee, paid in equal amounts by the losing party and the losing party’s attorney, when either knew or should have known a claim was not supported by the material facts or by then-existing law. There are exceptions. No sanction is awarded on the law prong if the claim was presented as a good-faith argument to extend, modify, or reverse existing law or establish new law, with a reasonable expectation of success. A represented party cannot be sanctioned for the law prong. An attorney who acted in good faith on the client’s representations of fact is not sanctioned.

Frequently asked questions