Northern Nevada Business Weekly In His Own Words: Austin Sweet

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Austin headshotNorthern Nevada Business Weekly: Tell us about Gunderson Law Firm and the duties of your position.

Austin Sweet: We do general business law, so we represent a lot of businesses in town for any issue that might come up. Our primary focus is litigation, so we do trial work, contract disputes and things like that. We also help form and dissolve businesses, advise business owners on potential issues that might come up, lease disputes — it’s a pretty wide range of business-type issues. I get the opportunity to handle my own cases, but with bigger cases Mark Gunderson will be more involved and is there to advise and oversee a lot of the bigger decisions. My role includes everything that can be done on a case, which is why I came to this firm. It’s not common starting out of law school that you’ll get that opportunity. I take depositions,argue cases, handle trails and arbitrations by myself, which I really enjoy.

NNBW: How did you get into this profession?

Sweet: I originally wanted to do engineering and in school I was a math and science guy. I wasn’t entirely convinced I wanted to do engineering, so my backup was business, and Washington had a great program for business. I was in the electrical engineering program at UDUB, and it just bored the hell out of me. I took at basic business law class, and at the same time I was taking a logic class. I really saw a big correlation between the thought processes of math and logic and the law. To me, it’s the exact same thought process — instead of taking numbers and plugging them into formulas you are taking facts and plugging them into laws and you need to figure out variables equations to reach a logical conclusion.

NNBW: In your five years of working as an attorney, what’s the most important thing you have learned in that time that helps you succeed?

Sweet: Realizing what I consider an interesting legal problem and what is the best interest of my client. Sometimes you have a fascinating legal dispute, but there’s no reason to charge your client thousands of dollars to go to trial and litigate it. It’s important to keep the focus on what’s in the best interest of your client.

NNBW: What’s been your most challenging case and why?

Sweet: Probably the one I am handling now. We have a major lawsuit that’s spread out over several states, and we are going up against a notorious litigant. It’s really helped me learn the global scope of practicing law and litigation. It’s like a game of chess — you always have to think six or 10 steps ahead and see what they are planning six to 10 steps ahead.

NNBW: What do you like most about your job?

Sweet: The challenging logical work and the variety. Every day is something different and new. There’s always a new challenge and twist to every case and issue and it keeps me on my toes and thinking actively. The second part of it is the people I get to meet. We do a lot of business law, and I get to learn about business, what people do and their passion for it. I really enjoy getting to meet those people and see into their world.

NNBW: What was your first job?

Sweet: My dad was a contractor, so it was working for him. I was doing that when I was five, since I was old enough to know the alphabet and put things in the right order.

NNBW: Tell us about your dream job. Why aren’t you working it?

Sweet: Honestly, I think it’s this. I think if I wanted to do something else I would do it.

NNBW: Have any advice for someone who wants to enter your profession?

Sweet: Try it out first. Get your foot in the door at a law firm, even if you are just working as a runner. Experience the profession first. I went to a pretty pricey law school and I knew a handful of people there in about their third year, after they had done their intensive summer internships that realized they didn’t want to be lawyers. But they were $100,000 in the hole and had wasted years getting a degree they didn’t want. It was hard to see that happen. If you are thinking about becoming a lawyer I recommend going to work at a law firm first.

NNBW: What are your favorite hobbies or pastimes? How do you spend your time away from work?

Sweet: Outdoors with my family. We play a lot of soccer, go rock climbing, skiing, hiking, backpacking.

NNBW: What did you dream of becoming when you were a kid?

Sweet: Probably a professional athlete, a soccer player or skier.

NNBW: If you had enough money to retire right now, would you? Why or why not?

Sweet: I would work less, definitely. I would travel more and spend time with my family.

NNBW: What’s the last concert or sporting event you attended?

Sweet: I went to an Aces game.

NNBW: Where’s your perfect vacation spot?

Sweet: Going somewhere new with my family.

NNBW: Why did you choose a career in northern Nevada? What do you like most about working/living here?

Sweet: I grew up here, and when you leave I don’t think I realized how good Reno is. I got to see Seattle and Boston, and that made me appreciate the culture of Reno and the outdoor activities we have to offer. A lot of my friends work for big firms in Boston, Seattle, Chicago and New York, and they are working 80- to 100-hour weeks. When you come back to Reno, there really aren’t firms like that; I have a good work-life balance that is hard to find other places. I really like the small legal community; you get to know the judges, they get to know you, and it’s a place where you can really build a reputation that can help you with your practice.

See the original story here

Does Your Client Have Enough Licenses?

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View the original article from Nevada Lawyer Magazine here

Like many lawyers, I’m faced with an unfortunate number of clients who call me to help them solve their legal problems rather than to prevent them before they happen. A recurring issue involves entrepreneurs who start new businesses: they know that they need “a business license,” but they often don’t know exactly which licenses they are required to obtain. So they head down to city hall, apply for a business license, pay the fee and leave with the erroneous belief that they are now fully compliant with all licensing requirements. After all, if there was something else they were supposed to do, wouldn’t the person behind the counter have told them? Unfortunately, the answer is “no.”

Businesses Need State, County and Municipal Business Licenses In Nevada.

Entrepreneurs typically need a business license from every state, county and municipality in which they plan to conduct business. Although this article only addresses Nevada business licenses, it is important to remind your clients that they may need to register their businesses and obtain even more business licenses in other states where they perform services.

The general rule is that any person who engages in a business or trade for profit in Nevada is required to obtain a business license from the State of Nevada. As always, there are several exceptions, most notably nonprofit entities and religious entities. Most exceptions still require the person to file a request for exemption. If you think your client may be exempt, be sure to consult the statutes to determine whether or not such a request needs to be filed. In addition to the state business license, counties and municipalities may require their own business license. Not all counties and cities have elected to do so, but most cities and municipalities require an additional business license for anyone conducting business in their jurisdictions. Each county and city has discretion to set its own guidelines for business licenses, so the fact that your client is exempt from obtaining a state business license does not necessarily mean he or she is exempt from obtaining a local license. For example, a natural person whose sole business is the rental of four or fewer dwelling units is exempt from obtaining a state business license, but a natural person whose sole business is the rental of three or more residential dwelling units on one parcel of land in Reno is required to obtain a business license from the City of Reno. You should therefore review the rules for each jurisdiction in which your clients are conducting business in order to determine whether they need a business license for that jurisdiction. Each jurisdiction requires licenses from businesses actually conducting business within the jurisdiction. A brick-and-mortar retail store would, therefore, need a business license based only upon the location of the store. However, a business that provides services in various places, such as a landscaper, needs a business license in each jurisdiction in which the business performs services. In areas like Reno, Sparks and Tahoe, a landscaping business might need business licenses from the state of Nevada, Washoe County, Carson City, the City of Reno and the City of Sparks, depending on their clients’ locations. A landscaping business in the south might need business licenses from the state of Nevada, Clark County, the City of Las Vegas, the City of North Las Vegas and the City of Henderson. Entrepreneurs are typically less than thrilled to learn this. Luckily, businesses can obtain multi-jurisdictional business licenses for Reno, Sparks and Washoe County or for Las Vegas, North Las Vegas, Henderson and Clark County.

Check Nevada Licensing Boards

Entrepreneurs may also need additional licenses due to the nature of their businesses. Many such licenses are obvious: you are unlikely to encounter an entrepreneur looking to open a doctor’s office without realizing he needs a license to practice medicine. However, as Uber can attest, the licensing requirements for other professions and businesses can be more ambiguous. Be sure to determine whether or not your client needs any additional licensing based upon the nature of his business, and don’t assume that your client will already know his professional licensing requirements.

A Business License is Not a Business Approval

It is important to ensure that your clients are aware that all these licenses do not constitute broad governmental approval of their businesses. Entrepreneurs sometimes believe the various government agencies that they have paid for business licenses have conducted thorough compliance reviews prior to granting those licenses.This mistake can lead to very costly consequences.

For example, a barber might assume that, since he applied for a business license for a barber shop and listed the intended address of the barber shop on the application, the city, county and/or state must have confirmed that the listed location was actually zoned for a barber shop, and that the barber has all the licenses required. So when the barber receives his business license, he assumes that his barber shop is “government approved” and that there’s nothing else he needs to worry about from a regulatory standpoint. Unfortunately, as we know, his is not the case; the well-intentioned barber could be shut down by the Nevada Barbers’ Health and Sanitation Board for working without a license and charged with a misdemeanor and an administrative fine. This error can easily be avoided by taking the time to explain to your client what a business license is and what it means for their business. When working with entrepreneurs, especially when helping them start their business, always remember to explain to your clients that they might need a number of different licenses, and tell them what those different licenses do, and do not, allow them to do.

Do You Know What Your Bylaws Say?

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Austin headshotBy Austin K. Sweet.
If you own a business, you probably have a business entity. Maybe you heard that business entities provide some sort of liability protection, and someone mentioned that you should form an LLC, so you wen online, or better yet, to a lawyer, and formed and LLC. A few weeks later, you got a fancy looking book with your company’s name embossed in gold lettering. You played with the neat little company seal thingy for a few minutes, patted yourself on the back for being a responsible business owner with such an official looking book and seal, and then put to book on a shelf never to be touched again.

That is, of course, until your lawyer asked you to bring that book to his office because its contents will dramatically impact the outcome of the dispute you’ve recently entered into with your partner. Are you sure that book says what you want it to say? Do you even know what it says? How will this impact your business?

Read the full article featured in Northern Nevada Business Weekly Business Law Guide Here (page 7)

The Value of a Written Contract

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This article. written by Austin K. Sweet, Esq. appeared in Northern Nevada Business Weekly on September 15, 2014. 

One of the advantages of conducting business in Northern Nevada is that our relatively close community necessitates a certain level of accountability. Establishing a reputation for following through on your word can take you a long way in Northern Nevada, while proving otherwise can ruin a business or career. Because of this mentality, many Nevada business-owners resist written contracts and prefer to rely on the “handshake deal.” However, reducing your agreements to writing is always a wise decision for a number of reasons.

Miscommunications Happen and Memories Aren’t Perfect.

Subject to a few major exceptions, which will be discussed below, oral agreements are legally enforceable contracts. In practice, however, oral contracts can be very difficult to enforce because they necessarily lack physical evidence of the agreed upon terms. In other words, it’s much easier to prove the terms of a contract if you can print the contract out and show it to someone. Without tangible evidence to show a judge or jury, any dispute will boil down to your word against theirs. This can become exponentially problematic when both parties honestly believe they are telling the truth, either because the parties misunderstood the agreement from the outset or because one of the parties misremembered the deal.

Regardless of how strongly you trust the person you are dealing with, creating a written record of your agreement prevents miscommunication and protects against the dangers of human memories. Even good relationships between honest people can go awry when the two sides honestly remember the agreement differently. This situation can easily be avoided by simply writing down the terms of the agreement and giving both parties a copy. As the saying goes: “Trust, but verify.”

Not All Oral Contracts Are Enforceable.

The general rule that oral contracts are legally enforceable is subject to a few major exceptions, primarily encompassed under the Statute of Frauds. Contracts which fall under the Statute of Frauds are generally unenforceable unless they are written. The main types of contracts subject to the Statute of Frauds are contracts relating to real property, contracts for the sale of goods worth more than $500, and contracts which cannot, by their very terms, be performed within one year. You should always put these types of contracts in writing or you may not be able to enforce them.

The Statute of Frauds contains a number of exceptions and nuances. Rather than attempt to determine whether your particular agreement needs to be in writing, it is good practice to simply put all agreements in writing and avoid a problem with the Statute of Frauds.

A Written Contract Is Only Beneficial If It Is Accurate.

A contract is like an insurance policy – (1) you hope you never need to use it, but if you do, it had better cover what you need covered, and (2) it is worthless unless you put it in place before trouble arises. Simply having a contract is not good enough; it must be clear, accurately reflect the agreement, and include all necessary terms. Drafting a good contract while all parties are cooperating is much easier than attempting to interpret a vague, inaccurate, or incomplete contract after a dispute arises.

Contracts need not be long, complex documents full of legal jargon. A multi-million dollar contract can be hand-written on a single sheet of paper, so long as the correct terms are included. Written contracts need to include all essential terms of the deal (price, terms, dates, deadlines, etc.) and everyone’s signature. Be sure that any critical element of the agreement is included in the contract – do not rely upon any promises from the other party that are not included in your contract.

All good written contracts should also include provisions concerning how disputes under the contract will be resolved, such as whether you agree to arbitration, which state’s laws apply, and in which court any disputes should be decided. It is also important to include an attorneys’ fees provision, allowing the prevailing party in any dispute to recover its attorneys’ fees and costs if a dispute arises.

Understand What Your Contract Requires.

It is absolutely vital that you understand everything in your contract. It may be tempting to download a template off the internet, change parts of it to apply to your situation, and leave the several remaining pages of legal mumbo-jumbo because it “sounds good.”

I have seen contracts between local businesses that require them to file suit in places like Florida. I have seen contracts that include superfluous provisions that have absolutely no applicability to the actual agreement at hand. I have seen contracts that include applicable, important requirements that neither party was enforcing because neither party understood their obligations. In some such cases, the parties would have been better off with no contract whatsoever than to have used a contract that included language that the parties did not understand.

Having a contract with provisions you do not understand can actually impede your ability to enforce your agreement. For example, you may be in breach of the contract without even realizing it, opening yourself up to liability or providing the other party with defenses they might not otherwise have. If you are not sure what a provision in your contract means or requires of you, consult with an attorney before signing.

Understand What A Contract Can and Cannot Do.

You can’t make good deals with bad people. No matter how iron-clad your contract is, it will not protect you from the improper dealings of dishonest people. What a good contract can do, however, is deter the other party from manufacturing a dispute they are unlikely to win. A good contract can also maximize your ability to resolve any dispute as quickly and inexpensively as possible.

A “loophole” in a contract may be enough for a defaulting party to drag a dispute through the legal process for several years at great expense to everyone involved, while a well-litigated dispute over an iron-clad contract can be resolved much more efficiently. While a good contract may not prevent a lawsuit, it can minimize the time and cost of a lawsuit.

Consult With a Lawyer.

In order to ensure that you have an accurate, complete contract that you fully understand, it is wise to meet with a lawyer before signing the agreement. Your lawyer can help you verify that your contract includes all necessary terms and appropriately applies to your situation, as well as explain to you all your rights and responsibilities.

If you are concerned with the cost, considering drafting the contract yourself, then sitting down with your lawyer to discuss any revisions that need to be made. The Gunderson Law Firm, for example, will review any unsigned contract and offer our comments, concerns, and advice free of charge for our existing clients. If your attorney offers a similar service, do not hesitate to utilize it and protect yourself and your business to the best of your ability.

Austin Sweet is an attorney at Gunderson Law Firm, practicing business law directed at helping business owners stay protected and prosper. He can be contacted at (775) 829-1222 or asweet@gundersonlaw.com.

 

Nevada Newsmakers With Courtney G. Forster

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Nevada Newsmakers Tuesday, September 17, 2013

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Host: Sam Shad

Guest: Courtney G. Forster, Esq., Gunderson Law Firm

Pundits: Sean Cary, Vice President, Nevada Matters Media Trey Abney, Director of Government Relations, The Chamber Stacy Woodbury, President, Appearances, LLC

Electronic Service – Three Days for Emailing?

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By Austin K. Sweet

The law is often slow to catch up with technology, but thankfully courts moved quickly to adopt electronic filing.  Most members of the Young Lawyers Section living in Washoe County or Clark County have spent our entire careers with electronic filing and can hardly bear the thought of actually leaving the office and go stand in line at the courthouse to file a document.  But the quick adoption of electronic filing left some oddities – namely, the handling of electronic service.

Before electronic filing, documents could be served by hand or by first class mail.  Because service by mail takes longer, the rules provide that a responding party shall have three extra days to respond when a document is served by mail.  NRCP 6(e).  This rule makes perfect sense.

Then fax machines came along, creating a new method of service.  Facsimile service is only acceptable if the parties consent, and still allows for three extra days to respond.  NRCP 5(b)(2)(D); NRCP 6(e).  As technology advanced, service by email became acceptable and was lumped into the rules with service by fax.  Again, three days are added to the prescribed period to respond.  Id.  That’s where the logic starts to get fuzzy.

Things became more convoluted when electronic filing was introduced.  The Nevada Electronic Filing and Conversion Rules (“NEFCR”) were adopted by the Supreme Court and became effective on March 1, 2007.  Second Judicial (Washoe County) has adopted the NEFCR.  NEFCR 9(b) provides that the court’s electronic service provider must send an email to all registered users that a document has been filed.  NEFCR 9(f) provides that electronic service is complete at the time of transmission of the NEFCR 9(b) email.

Eighth Judicial (Clark County) has not adopted the NEFCR, instead adopting its own electronic filing rules.  EDCR 8.05(a) provides that documents electronically served through that court’s electronic filing process are subject to NRCP 5(b)(2)(D) and, by proxy, NRCP 6(e).

So what does all this mean?  When documents are electronically served through the court’s filing system in the Nevada Supreme Court or in Washoe County, three days are not added to the prescribed period to respond.  When documents are electronically served through the court’s filing system in Clark County, three days are added.  Likewise, when documents are electronically served in accordance with an agreement between the parties, three days are added.

Not surprisingly, this has created confusion.  Practitioners in Washoe County regularly misinterpret the relationship between NEFCR 9(f) and NRCP 6(e) and mistakenly believe that they are entitled to an additional three days when documents are served through eFlex.  This confusion is so widespread that the rules are rarely enforced as written and the Second Judicial judges are discussing revisions to the rules.

There is an easy solution to this problem – stop adding three days for emailing.  In today’s world of computers and smart phones, most attorneys check their email constantly.  It is likely that the average attorney reads the automated notifications from eFlex / Wiznet within minutes of receiving them.  By contrast, documents served by hand must be driven (or biked) from one office to another, processed through the firm, and eventually delivered to the attorney handling the case.

Chances are, attorneys are able to access and read electronically-served documents hours, or even days, before they are able to access and read hand-served documents.  Why then are attorneys granted three extra days to respond to documents served electronically?  If logic ever existed for this rule, it does not exist today.

The state and local rules throughout Nevada should be amended to reflect the realities of today’s electronic world.  Adding three days for electronic service is counterintuitive and unduly dilatory.  The rules should be modified and clarified to plainly provide that documents served electronically are deemed received the day they are served without adding three days.

Austin K. Sweet is an Associate at Gunderson Law Firm. He earned his Juris Doctorate from Boston University School of Law and can be contacted directly at asweet@gundersonlaw.com or 775-829-1222.

A View Of The TIP Program

A View Of The Transitioning Into Practice (TIP) Program From The Mentor/Mentee Perspective

By Theresa Freeman, Client Protection Manager

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The Transitioning into Practice (TIP) program is well underway; the third six-month cycle began in January 2013. The program replaced the previous Bridge the Gap program with a one-on-one mentorship program that individualizes the transition into practice by pairing each new attorney with a Supreme Court-approved mentor. Mentors and mentees are matched by general interest in similar areas of law and are required to complete a mentoring plan for the program. Portions of the mentoring plan are standardized and require that certain elements be met. However, many elements of the mentoring process are left to the mentor, along with the new lawyer’s input. Mentors and mentees may also customize the plan to suit their needs within their particular area of law. With two six-month TIP pilot cycles completed, most of the feedback has been positive.

 

Mark Gunderson is a small practice owner in Reno and has been in practice since 1979. As an official TIP mentor, and an unofficial mentor to his daughter, son-in-law and various young attorneys, he gives his unique perspective on the TIP program and what can be gained by both mentor and mentee:

“TIP is a forward-thinking and practical way to better prepare new attorneys in Nevada to practice law effectively and ethically. The TIP program very thoroughly and completely addresses many critical practice areas and tasks to better serve new attorneys in becoming effective and ethical attorneys. The interaction required between the mentor and mentee to address the critical practice areas and tasks provides a unique and well suited way to start new attorneys in practice.

In my experience, if both the mentor and mentee approach the required tasks with a positive attitude in a fostering learning environment, a great deal can be gained from the TIP program. That, of course, requires a good faith commitment by both parties. While that may not always be possible, the opportunity is there for a very positive and educational experience.

The days of when new attorneys would largely be mentored in public practice or private practice law firms before starting their won individual practices are gone. TIP fills that gap and provides uniquely tailored mentoring to better serve the new attorneys as well as the public.

As a mentor, it has likewise broadened my experience with new attorneys, their attitudes and approaches, and been a good educational experience as well. In fact, those I have mentored still reach out to discuss their practice issues, which facilitates more than the mere satisfaction of a requirement.”

Mark Gunderson is the founding partner at Gunderson Law Firm and can be contacted directly at mgunderson@gundersonlaw.com or by calling (775) 829-1222.