Here are some of the more frequent questions I get and my responses:
Q: If I’m a sole proprietorship, do I need to file anything with the California Secretary of State?
A: No. Sole proprietorships are not regulated by the Secretary of State.
Q: If I’m a sole proprietorship, do I need to file anything with the California State Bar?
A: No. As long as the State Bar has your current address, phone and email address, you’re good. Bus & Prof. Code 6002.1(a). Just log onto your State Bar profile to update your info.
Q: If I’m a corporation, do I need to file anything with the California Secretary of State?
A: Yes, you need to fill out and file Articles of Incorporation of a Professional Corporation and pay $100 to the Secretary of State.
Q: If I’m a corporation, do I need to file anything with the California State Bar?
A: Yes, once you receive an ORIGINAL certified copy of Articles of Incorporation, fill out and file an Application for Issuance of Certificate of Registration as a Law Corporation and pay a feee to the State Bar ($200 as of 2015).
Fictitious Business Name/DBA (Bus & Prof. Code section 17900 et seq.)
Q: If I’m operating under my own or my corporate name, do I need to file a FBN Statement?
Q: If I’m operating under a name other than my own or my corporation’s name, do I need to file a FBN Statement?
Q: Where do I get a FBN form?
A: Each county has its own form, so check with the County Recorder where your principal place of business is.
Q: Where do I file a FBN Statement?
A: With the County Recorder where your principal place of business is. Some might argue that you have to file in every county where you operate. But I think that’s too onerous given how much business is done cross-county nowadays. For example, before I joined JAMS, I mediateD throughout the state under the Flashpoint Mediation brand, but it’s ridiculous to require me to file in every county in the state, especially when my website identified Shirish Gupta as the person behind Flashpoint Mediation.
Q: After filing the form with the County Recorder, what else do I need to do to perfect the FBN?
A: Place a notice in a newspaper of general circulation in the county. The County Recorder will tell you which newspapers qualify. Each newspaper’s website lists what and how you need to submit the information and payment — go for the cheapest newspaper. The newspaper will publish the notice once a week for four successive weeks with five days between each date of publication and give you an affidavit of publication, which you’ll file with the county clerk within 30 days after the completion of the publication. (Bus. & Prof Code section 17917, Gov. Code section 6064).
Q: As a sole proprietor, do I have to use my SSN as my tax ID number?
A: Absolutely NOT! Do not use your SSN as your business tax ID number. Instead, get a Federal Employment Identification Number (FEIN). It takes 5 minutes to complete the IRS’ online form and is free. Use the FEIN to open bank accounts, file your EDD forms and on your W-9/1099 forms.
Q: Do I have to tell the State Bar what my firm name is?
A: No. Bus. & Prof. Code section 6002.1(a)(1) only requires a member to disclose the following info to the State Bar: “The member’s current office address and telephone number or, if no office is maintained, the address to be used for State Bar purposes or purposes of the agency charged with attorney discipline.” See also Cal. R. Ct. 9.6(a).
LLP v. Corporation v. Informal Partnership
Q: Which form should I use if I have a partner?
A: I haven’t researched this since I was a solo, so it didn’t apply to me. That said, unless there are any concrete, quantifiable benefits from an LLP, I doubt the costs outweigh the perceived benefits, especially when malpractice insurance should take care of your biggest potential liability. I would think an LLP makes sense when you don’t know all of your partners well or if you have a lot of partners, so you need the protection that the LLP provides. Check with your accountant.
Q: Do I need a Westlaw/Lexis account?
A: Generally speaking, you don’t need one. Try to go without it because you can always get one later. I started without one, then signed up for a 3-year Westlaw contract when I got a couple of big cases. When those matters wound down, I didn’t touch Westlaw for months and couldn’t wait for the 3-years to run. I went without an account for years without any problems.
Q: How can I get free/cheaper legal research?
A: My main sources were: Google Scholar (it has federal and California case law with page citations), California Official Reports Public Access Web Site (free Lexis caselaw search), the Rutter Guides (they’re substantially discounted at the State Bar Annual Meeting — also, its cheaper to buy a new set every 3 years than updating them yearly), my county law library, Google (chances are someone has written an article on your topic and published it for free), and my lawyer friends on Facebook. There are a lot of other services available who provide caselaw, but unless they have official Reporter pagination, they have limited value.
Q: How can I manage my client list for conflicts?
A: There’s software that will manage this for you or you can do like I do and maintain a spreadsheet listing your client, adverse parties, interested parties, opening date, closing date, and matter description. Chances are, if you’re a solo, you’ll know who your clients are and who the potential conflicts are, so there’s little need to pay for software to do this. Plus, if the matter closed years ago and you haven’t done anything for that client since, you can ethically take a matter adverse to that former client, as long as you comply with Rule of Professional Conduct 3-310 (Adverse Interests) and 3-100 (Confidentiality).
Shirish Gupta is an award-winning mediator and arbitrator with JAMS. He is a past-Chair of the California State Bar Solo and Small Firm Section Executive Committee and had his own solo practice from 2008 through 2015.
Book a mediation with Shirish.