Q&A With David Surprenant, Managing Partner At Mirick O'Connell In Worcester
David Surprenant, the managing partner at one of the largest law firms in Central Massachusetts, was recently selected by his peers for inclusion in the 2012 edition of The Best Lawyers in America in the field of corporate law. He has consistently been named one of the state's top lawyers by Law & Politics.
One of your firm’s notable practice areas is labor and employment law. What one or two new things in that area should business leaders know more about?
Probably the primary one … is the proper classification of employees for federal and state wage and hour laws. Because if you don't classify them appropriately, you can have wage claims and in Massachusetts, they can carry treble damages, plus attorneys' fees. And one of the big issues is classifying employees as independent contractors when they're not independent contractors. And Massachusetts has probably the most difficult standard to classify somebody as an independent contractor. But a lot of businesses do it because they don't want to pay taxes.
The other area is advising clients of the need to conduct training around things like sexual harassment in the workplace. It's amazing how many people don't do it, and they worry about it after they have a problem.
Does the average citizen know more about the law today than, say, the average citizen of 15 to 20 years ago?
I think not. I think people were more informed a generation ago than they are today. It's interesting; I think certain people that are informed are well informed. But I think as a general rule, the average person … is not well informed on the law.
Well, could that be a function of frequency of changes in the law?
I think that's part of the issue. It's difficult enough for lawyers to keep up (with) all the changes. Every once in a while you read a statistic of how many more regulations and statutes we had in the last 10 years, and my guess is that … it's probably double what it was in the prior 100 (years). I think people get so overwhelmed by it that they kind of tune it out, because it's just too hard to keep track of it all.
Now, how does an attorney keep up with changes in the law?
Lawyers today tend to be less generalist and more specialist. I hesitate to say that too strongly because I think in a firm of this size, a middle-market firm, you can't be a complete specialist. Therefore, it's easier to keep up on what you've got to keep up on. It's not as important for me to know what's prevalent in labor law today. But in my practice, I need to know what's going in the mergers-and-acquisitions world and the commercial lending world. So you're a little more focused on what you need to worry about. A lot of it today you get electronically — like anything else — so you subscribe to newsletters and different kinds of feeds … (Also) legal periodicals, Lawyer's Weekly, the usual suspects — and your colleagues.
Many people think about starting their own businesses — or even franchising — but may not be aware of all the legal issues that come with it. What one or two areas can law firms help most in guiding new ventures?
I think probably the areas that I see the most concern about — and I think are probably the key ones to deal with up front — are how to structure the entity itself for the business. Oftentimes I'll have two or three people come into my office. They're unrelated. They want to start a business. They're excited about it and (want to) move forward and you want to talk with them about how to structure it. You usually get their attention. They want to minimize taxes and they want to protect their houses and minimize liability. One of the areas they don't want to start thinking about is what if this doesn't work out and one of (the partners) wants to leave the business. So, that exit strategy and building in some kind of thought process around a “buy-sell” agreement or something of that nature up front is another key component that people don't think about. n
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