Lessons From The Past
Nancy Greene recently sat down for an interview to discuss her more than 25 years of experience as a lawyer serving individuals and small businesses in Northern Virginia, DC, and Maryland. Nancy discussed common questions about the legal landscape in the region, how to navigate the most common legal landmines, as well as some of the unique challenges that come with representing clients in the area. She also shared advice for small business owners when hiring a lawyer.
What's the difference between an attorney and a lawyer or is there one?
Generally speaking, there really isn’t a difference between an attorney and a lawyer in America. Way back when being strictly technical, the difference really was the Esquire indicating passing a bar exam or not being admitted to the bar. Now, really, we use lawyer and attorney interchangeably. It’s just personal preference.
Okay. Yeah. I always wondered that. I know a lot of people know about, your practice and NDG law, but I wanted to take a few minutes so people could get to know more about you.
What made you decide to be a lawyer in the first place?
I became a lawyer accidentally. I didn’t want to be a lawyer when I grew up. Didn’t really think about it. I first got exposure to being a lawyer and all of that through the study of forensic psychology, which I learned about as a senior in college at University of Richmond. Our class was assigned to do research projects on different areas of psychology and present those areas to each other as we were a group of students looking to go into master’s programs into psychology. Forensic psychology was the area I was researching. I loved the idea of it. Forensic psychology was in early days, what you would probably most know forensic psychology for is Criminal Minds, Silence of the Lambs. One part of it was is the profiling of criminals. But the field is broader than that, but that’s how I found out about the area.
The preferred degree then, and even still now to some extent, is a law degree and at least master’s, if not the Ph.D. or Psy. D., in psychology. In the early 1990s, there was one program in the United States, that offered an integrated dual degree program. I didn’t get into that one. But I had applied to psychology and law schools at several other schools. I was accepted at both programs at two schools: University of Denver and Catholic University in Washington, D.C..
Since I was already in Fairfax, Virginia and hoping on a plane to a place I’d never been and had no friends was a bit daunting, I accepted the offer from Catholic. Catholic University was a bit daunted by this dual degree idea too. The deans of both schools were amazing though. They were like “okay, we’ll figure out how to do this whole dual degree, a Master’s in psychology and a law degree. But you know law school is terrifying. Start there first. We’ll put your psychology Master’s on hold for a year. After your first year of law school, we’ll figure out how to blend in your master’s in psychology with the law school classes.”
I started taking the law courses and loved it and never picked up my Master’s in psychology. And that’s how I became a lawyer.
Now, what made you choose? There are a lot of different areas of the law.
What made you choose business law versus anything else?
I became a business lawyer because that was the first job I landed out of law school. I really intended when I went to law school to become a forensic psychologist and when I graduated I planned to work in the criminal law field. I had interviewed with a JAG, the Judge Advocate General’s, office and the Department of Prison Bureaus for the Federal government and the New York public defenders. My then boyfriend and now husband begged me not to join JAG or the Federal prison system. The NY public defenders implemented a hiring freeze shortly after I interviewed and I was pretty sure I wasn’t getting the call back anyway. Lots of public defenders offices has hiring freezes when I graduated. Even some big firms revoked offer letters. The job markets was terrible.
For my first job I was hired by a boutique business law firm in Tyson’s Corner, Virginia. The managing partner very strictly cautioned me that “we do none of that criminal law stuff.” Yeah. Well, okay. I needed a job. I had student loan debts that were terrifying and needed to eat. Again, it’s the same kismet that ended up with me being a lawyer. I started doing business law and really enjoyed it. I’ve continued that way for over twenty-five years.
Wow. And your time as an attorney, right. I’m sure you’ve had all kinds of different cases and things of that nature.
What would you say was the most interesting case that you encountered and what did you learn from it?
The most interesting case that’s, let’s hard to say because each case is interesting in its own way. I learned different things in each one, right? That’s one of the reasons why I love being a business lawyer, working with different businesses, and a trial lawyer. I’ve learned things from how plane engines work and how you service an airplane, how people embezzle from companies, and how the diamond industry works. It’s really hard to say which one is the most interesting. Those are probably top three, obviously, because they are top of mind.
I really think what intrigues me most about what I do is really figuring out how people work and how to help them and grow their businesses and achieve the goals they’re trying to reach. That’s what keeps me getting up every day. It’s really not the disputes and the places where people get ugly with each other, right?
The ugly side of litigation’s not what I like. It’s really figuring the way out. We’ve come up with some really creative solutions to get people out of lawsuits. I had a sexual harassment discrimination lawsuit where my client, who was the victim of the discrimination, was fired because she would not sleep with the company president. He was mad that she was sleeping with someone else at the company. My client also happened to a shareholder. Were able to settle her case because we recast that settlement, not as a settlement of a sexual harassment suit, which the company refused to settle, but as a stock sale where we sold her stock in her stock at a premium. We were able to reframe around that mental block of, “I’m not going to admit I did anything wrong” and change it to a “I’ll pay thousands of dollars more than the stock is worth to settle” mindset.
Getting those creative solutions is really what I enjoy most it, that’s the most interesting part of my job.
Amazing. Now let’s talk more about like, cause you’re a business lawyer, let’s talk about that out. There are many different types of lawyers, right? What types of lawyers should a small business have like should a small business, had different types of lawyers or, what should they do is a typical small business.
What types of lawyers should a small business have?
A typical small business, depending on the niche of their business may need more than one lawyer. I know small business clients and small businesses hate when I say that, but it’s true. Your small business lawyer depending. Right? Over the last really two decades businesses have specialized. Lawyers are also specializing. You really need to be careful about what people are doing. Like there’s employee benefits stuff or ERISA that I won’t handle at all, for example. You’re starting to become a larger small business by the time you need that. It depends, again, “small business” is a misleading label because a “small business” can still make $15 million in gross income.
There’s trademark issues that you have eve if you are a true startup, small business or a small business that hasn’t had its first a hundred thousand dollars in revenue. You want to make sure that you’re not building a brand on someone else’s name or one that you’re too close. A trademark attorney is generally only works in that niche. A small business needs trademark attorney to make sure your logos are protected. Those are some of the things that your average, small business lawyer probably doesn’t handle. You’re probably better off talking to a trademark attorney rather than trying to DYI a trademark.
If you have a business where you’re bringing in out-of-country talent, you’re going to need an immigration attorney, right? Depending on the niche, your businesses and it’s needs, you may need more than just a general business attorney as that business grows. Right? Right.
Now I’m dealing with a transaction that my client’s about an $8 million company. It is in the process of being acquired by about a $5 million company. Yes, those numbers are backwards for a reason. Usually, it’s the other way around with the bigger company acquiring. This one’s a pretty unique situation. Your small business attorney, depending on their experience might not be in the position to handle a merger like that.
You may need to get a different expertise involved. Those are some of the issues you’re looking at, especially as your small business grows from that hundred thousand mark to the half million mark to the million mark, to the 5 million mark to the 10, to the 15, during all of which you’re still small business.
I guess, they say more money, more problems, I guess, in this case, it’s more money, more lawyers that how that works.
I heard a great quote a long time ago that Warren Buffet and the person who is homeless, both have money problems. Warren Buffet has better money problems. You want to have Warren Buffet’s money problems. It’s the same thing with small business, right? You have different problems that may require different levels and different attentions from attorneys as you grow. I’m outside counsel for a couple of companies that have also in-house counsel. They have lawyers on their payroll who are their everyday legal issues and they still refer things to me as outside counsel because it’s outside of that particular lawyer‘s expertise. Generally speaking, that means I’m their litigation attorney, but I also handle some of their Human Resources (HR) things when in-house counsel is too close and I’ll do their HR investigations. Or I’m their bankruptcy counsel when a client who owes them money files for bankruptcy. Yeah, as you grow bigger problems sometimes mean you need different attorneys to address them.
I know that you’re based in Fairfax, Virginia, However, oftentimes businesses in the DMV area, usually a lot of the businesses that DMV area will find themselves doing business in Virginia, Maryland, and Washington DC should do they need to have a different lawyer for each jurisdiction. And how does that work?
Should businesses in the DMV area need to have a different lawyer for each jurisdiction? And how does that work?
Sometimes licensing of an attorney is an interesting issue. I’m licensed in DC, Maryland, and Virginia. Separate apart from our licenses, what we can do, we can advise outside of our jurisdictions in certain circumstances. It really there’s a line as to what constitutes practicing law. It gets a little technical on the lawyer side, but I advise clients that are not necessarily based in DC, Maryland, and Virginia on issues. I do a lot of business consulting outside of that DC, Maryland, Virginia area, geographic area as well. I’ve had a client that was based out of Alaska. I have clients based in Texas. If the issues related to Federal law, then there may be no geographic limitations. It gets more complicated once a matter gets to litigation. Generally speaking, I have to associate with an attorney that is licensed in that jurisdiction. You don’t necessarily have to have a lawyer that is specifically licensed in that state depending. Right? They don’t have to physically be in that state to be able to work with them.
And it’s a little an issue sensitive. Like you’re a trademark attorney doesn’t matter because trademark is a federal issue so they can be anywhere and advise anywhere. There are some nuances to what attorneys can do, what jurisdictional limits apply and what matters they can and can’t handle. Generally speaking, it’s best to ask the attorney about this specific issue. We know what lines not to cross. If you’re asking me about something that I can’t help you with, it’s on me to tell you that too.
Okay. So, that’s, that brings up another important question, which is, let’s say you’re a business, small business by definition of anywhere from $1 to 15 million. Right. And you’re looking for an attorney.
What kinds of questions should you ask when you're interviewing attorneys to, to provide you with legal services?
When you’re interviewing attorneys, the first questions to ask is “what area of the law do you practice”, right? You want to make sure that if you’re asking about a business dispute that they have experience in business law, I had a client text me and asked if an immigration attorney can handle a divorce matter. And I responded back with: ”It depends.” She was asking the same kind of question. I don’t do divorce law. I wouldn’t handle that matter. I went through some of the questions that she can ask the lawyer. Her ex had hired the attorney for his business for immigration matters, and was asking that person to do their no contest divorce. The questions I had her asking were:
“Business law” is a big area. If I’m going to a business lawyer and I’ve got questions about what employee benefits to offer or do I have to extend COBRA, continuing insurance coverage for an employee once they’ve left, I want to know that attorney has had that issue before.
I don’t want the attorney to be learning on my dime so that those are all fair questions to ask. If you’re going to someone because you’ve been sued on a wage claim, you want to know their experience with those cases. You can ask a trial attorney their success rate in court. Most of us are going to tell you it’s 50%, because realistically court is a weird beast. We’ve all won cases that on paper, we should have lost. We’ve all lost cases that on paper we should’ve won because court happens. There’s some things you can’t control.
In looking to hire a business lawyer or a trial lawyer, you want to also consider whether or not they “fit” just like any employee you bring in, right? If they, if you’re hyper aggressive and you want to take a hyper aggressive approach and attorney is chill that’s not going to work. And the other way too, right? If you’re chill and say, “I just want to get it resolved. I want to be as smooth and easy as possible.” The attorney’s like, “oh, we can do this and this and this.” It’s not gonna’ work.
You’re looking for experience. You’re looking for knowledge. You’re looking for whether or not their communication style works with yours, whether their goals work with yours, those sorts of questions.
Now let’s say you hired an attorney, right?
What are the telltale signs that you need to replace The attorney that you have?
Some of the telltale signs that the attorney-client relationship isn’t working from the client side are going to be things like you’re not getting updated. You’re not getting calls back. Your attorney can’t answer the questions you’re asking. Now there are times that we’re going to say, “that’s a good question. I need to get to research it and get back to you”, but make sure they’re accountable for that.
There are going to be times your attorney has other cases and a life, and you’re going to need to account for that. If it’s a chronic problem of getting no response, if you’re getting bills that you don’t understand and your attorney won’t explain them to you, if there’s just that underlying friction in the relationship, just like any other relationship is not working. It’s time to part ways. If the attorney’s not following your direction, for example, if you’re saying, “there’s this witness that was there at the time of the accident I need you to talk to them” and months have gone by and nothing has happened. That’s a problem. Right? Lack of follow-up, lack of follow-through any time you can’t get an explanation of what’s going on with the money. Those are some big red flags.
Got it. Now in that speaking of money,
Should a business have an attorney on retainer or should they pay as they go?
The question of whether or not to have an attorney on a retainer or a pay-as-you-go status, really depends on how much you need the attorney.
A “retainer” is paying a fixed amount every month for the privilege of reserving a certain amount of the attorney’s time every month, right? You pay it every month, whether or not you use that time. It’s different than a deposit for advanced work that the attorney then bills or invoices against. Let’s say you’re paying $5,000 a month for the attorney’s availability for the upcoming month. That only makes sense for the client, if the client is regularly going to be using the attorney, right? If you’ve got an ongoing situation and the attorney is going to be providing a regular set bundle of services, just like you’d pay your web designer, just like you pay your SEO person that you can quantify. In that case, a traditional “retainer” makes some sense both for you and the attorney. The attorney knows I’ve got this person that I have to do the work for. I can budget it for generally speaking. When I do that, I’ve given the client some discount on my hourly rate, because they’re committing to me for a set period of time. There’s some flexibility in that as well. Because I know some that in some months, I may spend a bit more time than budgeted and in some a little under, but for that six month or a year period, it should average out. But if you don’t have that kind of need, and that’s generally a company, that’s got a lot of contracts that are going to need to be reviewed, they’re going to be fairly routine and regular, you’re just spending a lot of money that you probably don’t need.
A retainer isn’t going to work for litigation because litigation is time-intensive, unpredictable, and not something the lawyer can budget. Someone is going to be horribly upside down by the end of that, right? Because I could say we’re going into litigation in the Federal District Court for the Eastern District of Virginia (Alexandria Division), that court has been lovingly known as the rocket docket, generally speaking, that’s from filing to trial pre–COVID nine months. That’s why it’s called the rocket docket. It was one of the fastest courts. I haven’t looked at the post–COVID data, but you could be spending $20,000 a month or more in legal fees. A lot of the costs in litigation depend on the issues raised, the phase of the case, the strategy of the other parties, and the rulings the judge makes. There’s too much that’s beyond the lawyer’s control to predict a litigation budget beyond a very general and wide range. Even a month minimum budgeting wouldn’t work. You’re going to be on an hourly rate or in very rare cases a contingency rate.
A true retainer generally requires something like a company that’s going to use it time and time again, right on more administrative-type tasks. Most smaller businesses are better off paying hourly or negotiating flat rates per task than at a true retainer.
Got it. Now I know that, we all watch TV and things of that nature. We hear about, I think a lot of times we’re conditioned to think we need to hire like a big law firm because they’re, they know it all and they have all the power or what have you. What would you say as an attorney? What’s the different between for a, like, for a small to medium-sized business,
What is the difference between hiring a larger law firm versus a smaller one?
There are two real differences between hiring a larger law firm and a smaller law. They come down to money and accessibility.
Money is obvious, right? Lawyer firms charge more, they have more overhead. They have more people generally speaking. My rate for an attorney of my experience in a smaller firm with less overhead is generally speaking less than the rate one with the same experience at much larger firm. That’s cost-differential is a “pro,” generally speaking, you’re getting an associate at the rate I charge at a big national firm.
The downside is twofold to a smaller firm. It could be just one attorney, right? If you’ve got a solo, you’ve got the solo. There’s not as much of a depth, so there’s not an associate to handle a matter if the lawyer you work with is tied up in court or out sick. You’re getting the experience of the partner you’re hiring. That sometimes means that sometimes there’s a delay in how quickly things get done with a smaller firm.
Generally, at the large firms you’re not hiring the partner unless you’re spending lots of money to do so. Those people are out networking, marketing, and handling the largest of the clients. Their work is being performed by associates and lower-level professionals being reviewed by the partner you hired. Your access to that higher lever partner is generally much more restricted. That’s the pros and cons of the system.
Now with that in mind,
Why should business owners choose NDG PC versus any other firm?
Personal service. At N D Greene PC you get access to an attorney that has a broad depth of experience and various aspects of business law. Part of the advantage of my experience is I am not as niched as some of the partners that you will see at larger firms in that I don’t just focus on mergers and acquisitions. I don’t just focus on labor law. I have a broad breadth of experience to bring to the transaction and get that one-on-one time with the clients. It is not being handed down to an associate who is a recent law school graduate at avoid some of the oversight billing where it’s been, work’s been performed by a lower level, less experienced attorney, associate junior associate, a junior partner, and then has to be reviewed by higher level attorney.
I’m a little nimbler in being able to get work turned around. I don’t talk “lawyer” to my clients. I talk in a way that allows them to understand the issues that are presented and be able to act on them. I am a small business owner. I identify myself as a small business owner not just a lawyer. I’ve been through the same issues as a small business owner that they’re dealing with. I can advise them not just on the legal issues, but the practical issues, because sometimes there’s the legal ramifications of a decision, but then there’s the business aspects. I had a conversation with the client the other day and said essentially, “the law says this. You can absolutely stand on that. So, the practicality is this for your business. What position do you want to take? Here’s the pro and con from the business side.” They had the advantage of both the legal and business answers. Now let’s think about what this means for reach, purpose and values of your business. And that’s not advice I generally see clients getting from other firms.
What would you say are a few of the biggest mistakes that you see business owners make as far as legally legal matters are concerned for their business?
Some of the biggest mistakes I see business owners make in regard to operating their business include frankly, Google searching their business questions, relying on outdated and outmoded advice as to what their obligations are or trying to take shortcuts. The issue of who is an independent contractor and who isn’t trips business owners up all the time. The states and Federal government are really cracking down, especially in the construction industry, on the misclassification of workers, both for independent contractor status and on overtime violations because they’re losing lots and lots of money and tax revenue. And that is a huge danger zone. That business owners mistake partially because wage classification is difficult and partially because people misunderstand it and aren’t getting the right advice.
The other area that business owners make mistakes, especially small business owners of less than a million in gross revenue but I’ve seen it in companies that are 10 million plus, in terms of what the owner thinks they can and can’t run through their business. They do and take steps that jeopardize their corporate shield, which is the nice legal fiction that companies are people a separate and apart from us. Business owners will put personal expenses through the business, or they’ll allow corporate registration documents or corporate minutes to lapse or not happen, which runs the risk of the owners personally, being responsible for their company’s debts. The paperwork that we all hate; we’ll forget that it’s important or how important it really is. They’ll underestimate the value of that. It will be that paperwork, ultimately that trips them up five, 10, and I’ve seen it 20 years after the fact just come out and devastate the business owner.
Those are some of the really big mistakes. The other really big mistake I see is not taking the time to document properly a business deal, whether it’s with a business partner or a vendor, and having that deal blow up down the road.
Those are the three biggies.
Got it. Got it. Got it. Okay. All right. Obviously we’re all going through the whole COVID era
What are the new types of legal concerns that businesses should be concerned about or that you're seeing in relationship to, COVID-19?
Some of the new issues facing the businesses in the workforce since COVID are really managing the company’s proprietary information and managing virtual offices. There’s been a push for work at home and virtual offices for decades, but COVID really forced that to happen. Now that workers have gotten the taste of working at home, they’re resistant to coming back into the office. In some cases that’s a rightful resistance because the argument has been, we’ve done it for over two years and look, the company is still there. So, it’s managing the employees and getting them to shift back into an office environment, but it’s also reassessing from the company standpoint of do we really need that office environment really reinventing what business is today and in the situations where a company decides to keep a virtual office or at least part virtual office, employees now have remote devices with company proprietary company, confidential information, and companies need to be putting in an infrastructure to protect that as well as, when that employee ultimately leaves, figuring out how do we get it back.
Really looking at what the company’s business needs, what’s the need for brick and mortar. How often do we need to interface personally?
If we have workers scattered all over, what does that mean for our corporate registration? Lawyers are wrestling with this here in the DMV Metro Area. We have our lawyers in our licensed DC, Maryland, and Virginia, which helped, but we had lawyers who worked a DC firm. We’re fortunate enough to have multiple offices. And then, okay, I work in DC. I’m licensed DC, Maryland, and Virginia. Maybe I’ll go to Florida and stay with my folks there. Now I’m operating my DC law firm from Florida. I’m not a licensed Florida attorney. Am I now practicing law in Florida? Do I need to register in Florida? And my violating Florida unauthorized practice rules?
Now let’s say your employee who was commuting in from West Virginia to your Virginia office is now establishing a remote office for you in West Virginia. Do you have to register your business in West Virginia? These are some of the issues we’re wrestling with as virtual offices are becoming more common and as well as the IT backbone stuff, new compliance challenges, and how to manage that whole new spectrum. I think you’re going to see companies become much operating in many more places than they really think they are as a result of these virtual workplaces and running into additional legal problems as a result.
Excellent. Last question. Now I know that you, of course, help businesses of all kinds, but I know that one of the things that are important to you is helping and working with women’s own businesses. Why is that?
I started really focusing on helping women own businesses for several reasons. The first, probably most honest is I am one. I was looking at my business and as I was looking at the cases and matters that were coming to me, I noticed a trend. A lot of my cases were women business owners, who had gotten themselves into situations in those businesses because they weren’t taking the steps they needed to protect them. A lot of that was their business partners who were almost exclusively, all men, 80% of the cases, they were male business partners had talked them out of getting documentation for their business relationship. They met them and trusted them because they were their husband’s racquetball partner, or they met them through a church group or some other social related function. They weren’t documenting their things or they’d gotten a form online, or they just were so busy giving back to the community and serving the clients that they hadn’t stopped to take care of themselves.
A lot of the same issues you hear about women being the caretakers for families and children and not taking care of their own health. I was seeing happening with their business. They were so busy doing the business thing, they weren’t taking care of their businesses’ health. I really want to make sure women do that. I was also then looking at American Express, who puts out annual report on the state of women businesses and the numbers there supported what I was seeing in Fairfax, Virginia and Loudoun County, Virginia. The American Express report was and remains shocking in terms of just how much women business support the economy and how poorly we do compared to our male counter-parts. Women hire more, but make less. A lot of that is just not only a failure to pay attention to it, but a failure of education. It’s part of why I launched my speaker’s platform was really to get that information out to other women business owners.
That’s really the origin of why I started really specializing in reaching other ways that women business owners and connecting with them and serving them in this capacity.