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Episode 223: Protecting Your Consulting Business Legally—with Sarah Swank

Deb Zahn: I want to welcome you to this week's episode of the Craft of Consulting Podcast. So on this episode, we are going to be talking about how to protect yourself legally and in particular when you need to prioritize spending some money on a legal professional. To help make sure that you mitigate risks and you're as protected as you possibly can be in your business. So I brought on a lawyer to talk to us about that. Sarah Swank is going to walk through some of the details of why it matters to get some legal assistance and when it makes sense to do it, so let's get started. Hi, I want to welcome Sarah Swank to the show. Sarah, I'm so delighted to have you here.

Sarah Swank: Thank you, Deb. I'm so excited to be here today.

Deb Zahn: So let's start off, tell my listeners what you do.

Sarah Swank: So I am a health attorney. I've been an attorney for I think almost 24 years now and I work in the healthcare industry doing fraud abuse contracts, regulatory work and especially where the cutting edge of healthcare is going in care transformation.

Deb Zahn: Which it's going fast and in many directions.

Sarah Swank: Yes.

Deb Zahn: We could have a whole separate series just on what the heck's going on with healthcare. But I wanted to have you on because so many consultants are always asking me legal questions and I don't want them to because I'm not a lawyer, I can't give legal advice and the firm where you work for Nixon Peabody. Who I love and adore, and I've worked with many times is also my lawyer, and so I know better than to try and step in a lawyer's shoes. So you were kind enough to come on so we could talk about, for consultants, some of the things that they should consider when the right time is to avail themselves of actual true legal professionals who can give them legal advice and help them with things. So let's start off and let me ask you. So we were talking ahead of time. A lot of consultants, particularly because at the beginning of the consulting journey you don't have a ton of money if you haven't gotten a lot of business yet.

So money's tight and so legal documents and working with lawyers can cost some change. So they might try and do it yourself or Google things and then put together Frankenstein legal documents and language. Let's just right off the bat say what's the risk of doing that?

Sarah Swank: I think the risk of doing that is did you even know what you just wrote? If you don't know what those provisions are that's probably not a good sign, right? First of all, you don't know whether you have protection in those provisions. You don't know when you go out to negotiate with your clients. How are you going to explain, "OK, I want to swap out the governing law provision. What does severability mean? I don't know, I just saw it on the internet." Right? So I think understanding that is really good to be protective and be able to negotiate. Also, I think it makes you look best in class if you want to actually... The business answer also is you look good.

Deb Zahn: Yeah.

Sarah Swank: You look like you know what you're doing, you look sophisticated. I mean my personal writing style is elegant, short, sweet, easy to read. Right? That can actually go a long way as somebody who has looked at consulting contracts as a lawyer for clients too. When it comes across your desk and it's easy to read you're like, "I can get this one-off. I can move forward with this." So I think there are a lot of reasons why you want to do it right in the beginning.

Deb Zahn: So in your point, which is so helpful is on the client side they often will have their lawyers look at it. So if you've got this Frankenstein language in there that doesn't make sense because you didn't know what it meant or they come back with a red line and you're like ah. Then what are you supposed to do?

Sarah Swank: Yeah. I can say I've actually worked on people's contracts where I've had things come across my desk and then I've re-written it for them and they're like, "Thank you. I'm going to use this moving forward." And I'm like, "I'm not your lawyer. You don't know if this is even favorable to you or not. So you probably want to get your own lawyer or have me be your lawyer." But it's really important. There are some provisions in there that you may not even realize, you may have skipped out, maybe you don't realize that you want to have indemnification or a limitation to liability provision.

I'll use the limitation for liability for example to start with. If you're a new company, you don't have a lot of insurance, you don't have a lot of... One bad issue is going to bankrupt you or make you go out of business. You might want to look at a limitation liability, it's industry standard. People are not going to be that surprised by it, but you have to understand what the pushback of that is going to be for example too.

People will push back. How do I change it if I do throw one in? What would be reasonable? Where do I look reasonable or not? So those kinds of things are really important. It really could be the difference between something not quite going and you might not be in business later. Because something didn't go well ,and you didn't have that provision or you didn't understand it.

Deb Zahn: Yeah. A huge risk. One thing you're also pointing out is the risk of a delay. So you're a consultant and you got to get some income coming in the door, well cashflow grinds to a halt if their lawyers don't like the contract that you sent over.

Sarah Swank: Yeah, that's true. It's true. I mean I hate to say this, I've done this before where I'm like I have four contracts I have to do which one am I going to do first?

Deb Zahn: Right.

Sarah Swank: Like think about that, we're all like that. Human nature is can I get these three done real fast and fourth it's going to take me a little longer? But if you look at one and you skim it and you go, "I can get that one out like that." It's going to go out like that.

Deb Zahn: Yep. You're reducing any friction to actually getting a signed contract, I love that. So if someone's a new consultant, what should they be prioritizing in terms of saying, "Look, I need to spend some money on a legal professional who's going to help me." What'd be sort of the first stop you would tell them to make on that?

Sarah Swank: I think first would be if you can get a really good template in place that you feel comfortable, and again someone's explained the different parts of it. If it's really well-written, you'll know where you might get pushback or not and you can even have an alternative clause. So I would start with your basic like you're about to get engaged template and have that set up and maybe your SOW or your scope of work document like template and not filled out. But something that might work, and also something that's going to be practical. Because if you're really successful you might want to have a contract where you keep the main contract so you don't have to keep negotiating it and then you can just add scopes of work. Right? So there are these sorts of practical business-minded discussions. If you can have those upfront like you said you don't want to slow down, you just want to grow. Right? So if you can get your document, get a lane and you say I can go as fast as I can in this lane and I know I'm good. That's a great strategy to start with.

Deb Zahn: Yeah. I have to admit at one point I didn't know that a master service agreement was a thing and obviously, this is relevant to the folks in the US,  and I just kept doing new contracts and that took forever and that delayed income. Because we would have to stop whatever we were doing and it delayed the goodness I was able to give to the client, but I didn't know it was a thing because I'm not a legal professional. So let me ask this, is there anywhere that... Well, let me dig into contracts a little bit more. Because I actually have people question whether or not they should even have a contract if they're doing a client engagement. So I want to start off first by clarifying with you that a pinky swear is not legally binding when you're working with a client.

Sarah Swank: I mean you can go in and you could try to say, "Well, if we wrote it in crayon on a cocktail napkin then I guess it's technically a contract." You could try to figure out do you have a contract because you both talked about it? But they call it something about the four corners, right? The four corners of the contract. So the best evidence of what everyone's supposed to be doing, like getting paid for example if you're the consultant and the scope of services on the other side for your client side is a piece of paper that's easily understood, read. A meeting of the minds, right? If you're outside of that and something doesn't go well like you don't get paid or there's a misunderstanding. That's when that document is going to be really important, and if you get that all set in the beginning, then you're great. So I think not having something in place, you might think this is easy, and it's going to go faster. But you might end up halfway through they're going to say, "Well, I don't know.

I'm a little disappointed because we're not in phase four yet." And you're like, "There's phase four?" Now you're like, "Wait, what do you mean? Or why are you not paying me?" And they're like, "Well, you didn't get this done." So I think there are both legal reasons that are protected but I think also just business reasons. The idea is this is what we're both agreeing to do, and I think that, that's an important foundational thing. You could do it but if it goes wrong, you're going to have to try to work it out without being able to pull that piece of paper out of your back pocket and say, "Here's the contract."

Deb Zahn: Yeah. The other thing I see, so sometimes people will say, "OK, I have a contract." And it's just here's the scope of work and here's the terms related to pricing and nothing else, and they don't have terms and conditions. So sell anybody who's home going, "Hey. Yeah, that's me." On why you should have terms and conditions in all your contracts.

Sarah Swank: Yes. So if you just have that, you're just saying this is what I'm going to do, and this is how I'm going to get paid. But if there's a dispute, you have nothing about I'm going to say governing law. It might not seem like a big deal but if your client is in Minnesota and you're in New York where is that dispute supposed to be held? How about if for example, you'd rather have it go to arbitration? One reason... There are pluses and minus to arbitration clauses. But for example you could say, "Well, actually I don't want my name in the press." So if it's an arbitration it's confidential and it's not in the court docket. I don't like suing my clients so let's do mediation. These things that you can work through, those are these other clauses and then there are other standard clauses. Again severability, I mentioned that. A lot of people are like, "What does that mean? I have no idea." That's the one I always get, "I don't know what that means and the word sever is in it."

So I always say, "Just imagine a giant knife coming and a judge starts hacking up your contract, what stays and what goes." How about if that contract you did, you thought it was great. But then it does get to court or it does get to an arbitrator and they say, "You know what? This is just not legal or this isn't good." And the whole thing goes out the window and now you're starting over again. So these clauses that seem so standard actually really each of them has an intention and a purpose and they're so easy to do. I just want to tell everyone terms and conditions, it's so easy to do. It will be worth the investment to do it in the beginning because you can sleep at night knowing that it's in there.

Deb Zahn: Yeah. So I think that's an excellent reason for having it. But it involves choices just like you're pointing to, there isn't one way to do it. There are things that are going to work better for you, your business, your clients because not all of my clients has liked everything that's been in my terms and conditions. So how can a lawyer help sort of understand what the options are and help guide me in making those choices?

Sarah Swank: Yeah. So if you went to go like you said Frankenstein the contract out of the internet. So now your internet's a lawyer which is not a good place to be, right? You don't want the internet to-

Deb Zahn: It hasn't done good at being anything else this far.

Sarah Swank: You don't want it to be your doctor or your lawyer or a lot of other things or your consultant. I mean think about that everyone out there. Would you want your clients looking up the internet to try to solve the problems that you're solving? I don't think you would, right? So I think when you have an attorney they... I say pick the right lawyer too, pick somebody who meets your style that's pragmatic. That will actually help like I said get that document through, Deb I think that's so important. Because you really don't want to slow down your work then they should put it together and then if you talk to them they should walk you through what these are. Where the sticking points might come based on their client base, right? So these kinds of clients like... Let's make it up. Universities might push back on sovereign immunity which everyone's like, "What is that?" If you're a public university you can't get sued, but there are other alternative clauses you can throw in. Right? So a lawyer can walk you through those clauses and fix that.

Another place where they always say, "This is a lawyer clause." But Deb, I would say it's not but it is business which is term and termination. Or do you want to be able to get out of this partway through if you don't like how it's going and do you still get paid and where do you get paid? Those kinds of things are 100% business, but having a lawyer explain how do I write this? I think if you did, "I can always get out of it and the client never can." I've seen those, but it might be harder to get through and so that's a business decision too. You could say I'm putting all these resources in and I really need to not have someone bail on me for a while. Right? Because taking this engagement instead of this other one. So it's having those conversations that I think are really important. So it may be that you at least learn your options so that you can even customize it yourself as you go.

But it's as easy where you're just changing a number, for example, the number of days that you can terminate or something like that.

Deb Zahn: That's right.

Sarah Swank: I think that's important.

Deb Zahn: Now, one other place that I've seen issues come up with clients is what constitutes a work product and things related to intellectual property. So when you're working for a client you show up with some goodies because you've done this a long time, you have tools, you have whatever. They're asking you for a particular type of work product and they're bringing some intellectual opportunity and you're bring... That gets messy very, very quickly. I've certainly had in the past clients who regardless of what was in the contract had different assumptions. So if it wasn't in the contract, all we would be talking about was our feelings and our assumptions. So how do you work out sort of that type of stuff when you're looking at a contract?

Sarah Swank: Yeah. I was going to say, in some ways lawyers are not supposed to have a lot of feelings. We're supposed to be very straightforward about it, right? We're cutting through the feelings. I think I'm a compassionate person but we're not supposed to have a ton of feelings about it. Someone said this to me once and I thought it was great and they said it to me 20 years ago and it's always stuck with me. Which is, "Lawyers are there to look at the divorce while you're doing your courtship."

Deb Zahn: Wow.

Sarah Swank: We're looking for it to blow up, go bad and everyone depart ways in some really bad divorce. Right? If we can look at the document and we can look at that example, intellectual property. One of the more messy issues and say, when this goes bad what will happen and are you still protected? Right? Like, "I get to keep this dish and you get to keep this record." Right? Like who gets to keep things? I think that's really, really important. I'm not an intellectual property lawyer but I know the clauses that you need to put in there and I talk to my colleagues if it gets really, really complicated. Because you do want to not lose something, other times you might be doing something for a client in which your work product they're going to want ownership of it.

Deb Zahn: That's right.

Sarah Swank: Right? Other times they want ownership of it, but you want to have some data that gets pulled out of it or something else that puts out of it. Maybe you have a report that you like to do and it's really customized. So they get the report and they can have the information in the report, but they can never use how your report's structured or how you pull your data. So I think it's really important to put that upfront. Some of those clauses look very I don't want to say generic on their face, they look like well this would apply to a lot of situations. But when it goes wrong it will be really, really important to talk about it and to understand am I taking my own stuff with me or am I not? Right?

Deb Zahn: Yeah.

Sarah Swank: If you have something really special sauce out there, you may even want to list it in or really be specific in those provisions.

Deb Zahn: Because some of this stuff are business assets. So I think about engagements I've done with clients, where in a particular engagement we built a decision making support tool for a client that had difficulty making decisions and that's my bread and butter for consulting is indecisive people. So that's a business asset to have something that can be customized for different folks. Well I better make sure that folks understand that, that is not something that they own however I customize it for them. They get to use it, they get to amend it, they get to do whatever, but they can't turn around and sell it, they can't tell me I can't use it. So those are the sticky things that can happen when you might have folks on the other side who are just thinking about reality much differently than you are. If it's not in those four corners, now you're arguing and now you're in that bad place you warned us about.

Sarah Swank: Yeah, you don't want to be there. I agree with you, because you might have something that even while you're working with a client and you're modifying something that you've done for them. But you might still want to own that, so you can use it at another client and you don't want them to go off and say, "OK, great. Now, I'm going to go use that." For example they might be a licensing part of your intellectual property and if you have a process that's in a patent or if you have your logo for example or if you're going to co-brand something together. I mean, all those different decisions and different things need to be laid out in the contract.

Deb Zahn: Yeah, love it. So subcontracts can be a wonderful way for consultants to augment either the projects that they're on because they're a subcontractor or bring in subcontractors who can augment their team. But those have to have contracts, and I always tell people, "Those have to have contracts." Those aren't a handshake. I don't care if you were at that person's wedding, you still really need to have a contract. Anything special you want people to think about in terms of those types of consultant to consultant partnerships?

Sarah Swank: Yeah. I think whatever you have with your client, if you're going to subcontract for someone else to do it. You want those obligations and responsibilities to flow down to that consultant because otherwise the buck starts with you and they're going to look at you. Now, a little bit does start with you because you're pulling in those people and it's your reputation and your business on the line. But if say the consultant just totally fails on something and the client looks at you. You'd want to look at the subcontractor and say, "Hey, actually that was on you." So I do think you want these obligations to waterfall through to your subcontractors. You also want to look, are you contracting with an entity? Are you contracting with an individual? Are they starting to look like an employee versus an actual subcontractor? Just be cognizant of the IRS has rules around when someone's a contractor and when someone's an employee, so think through that.

Deb Zahn: Yeah.

Sarah Swank: I did have a client a long time ago who got dinged with that and you should have seen their contract. It was pages and pages of IRS. I was like, "I don't know if we need all that." But you need a process or a thought process behind that to know are they really my employee because I'm using them a lot? Do I need to employ them through my entity or do they have their own entity and I'm subcontracting?

Deb Zahn: Yeah. The other term that I've seen where there have been mistakes is clarity around payment terms. So I'm really clear in my contracts when I have subcontractors that I get paid and then within a defined period of time you get paid. I've had subcontractors and I've seen other people struggle with this where the subcontractor assumed as soon as I'm done with the work I get paid. That hurts your revenue picture when you're a consultant if you have to dish out a bunch of money before you've gotten any from the client. Not in the contract, what are you going to do?

Sarah Swank: That's a great point. If you can lay out your... Let's say it's a phased project and you're going to get paid so much upfront and a third, a third, a third. I always make that up. Then you know your subcontractor is going to do phase two, you might have some money upfront but you might not. So you might want to do a half and a half to them, or if they won't do it unless you give them some money. You could figure that out or they can get paid at the end of the project. Again, it depends on how you're thinking out your phases, your cashflow and then who you're trying to attract as your talent to subcontract and how busy they are.

Deb Zahn: Love it. So one other thing that most consultants do these days is of course the first thing they think they need to do is to have a website and I will say you don't. But for a lot of folks, it does make sense to have a website, but they don't know that there's legal language that they should include in terms of use and privacy statement. Why do they need to ensure that type of information is included?

Sarah Swank: So if you put a website out, it's kind of no different than anything else where you could potentially be misrepresenting yourself to consumers. Right? So you want to make sure that people understand when they land on your webpage what is happening with their data. You need to understand what's happening with the data too. You might not even know what you're pulling and you start, "This is cool, let me start using it." You realize actually I can't. If you look at the FTC, they've been cracking down across a lot of industries. Healthcare, just happens to be one of them where they're looking at what did you say you were going to do with someone's data and what did you end up doing with it? You might not even think that when you launch your page like why does it matter? But it actually does, it really could come across as potentially defrauding a consumer in not understanding what happens with their data. The other places like attorney generals are looking at this, it's not just the federal government.

because you could get a complaint from somebody and say, "I didn't understand what happened with my website. I didn't understand when I went there." So you do not just want to put a landing page up and, also the other thing is when you put your page up if you don't have your logo protected yet and you're putting other intellectual property up there. That may be good, some intellectual property lawyer might say, "Yeah. Now it shows that you own it." And it also may be like, "Yikes, you should have protected it first." So that's another reason to talk to people before you start loading your website with a lot of information.

Deb Zahn: I love that. The other thing I've seen is... And I think there's always caution in consultants doing that. If on their website they are making any promises in terms of outcomes. One, caution against doing that. Because unless you truly, truly control enough of the variables that you actually feel relatively assured to make such a bold statement. But that's where having clarity about what does it mean for someone to come to your website, consume your blogs, or listen to your podcast or whatever it is? Relative to the results that they actually achieved by consuming your goods and services or whatever lawyers actually call it. Any thoughts or cautions you would give relative to that?

Sarah Swank: Deb, I think you're completely right. Because if you're in there saying, "Guaranteed results. I will get you this return on investment within 40 days." And you don't which you probably can't, no one can guarantee that. I think that you could definitely trigger something like that, commerce is on the internet now and there's enforcement now. So it's not like you're just hanging up a shingle outside an office and hoping for the best. You really are in this digital storefront and you've become a part of that. You need to understand, what are your legal obligations? What have you done by putting that website up?

Deb Zahn: That's right. Even having case studies or something like that. It's sort of like when you watch the diet ads on TV and it's in teeny, tiny letters at the bottom. It says, "Your results may vary. These are very unusual circumstances." But to protect yourself. So if somebody comes they aren't looking at this and saying, "I did what you told me to do and that didn't happen with me and now I think you're somehow liable for that."

Sarah Swank: Yeah. I think that's an excellent point. The other thing about websites is if you do want... Like you said the case study, that's a really interesting point. If you wanted to put that on there and you go back and you look that you signed an NDA or a nondisclosure agreement. Or your confidentiality language is really strong and it looks like all of a sudden now you could figure out who it was, that actually could be a problem. Or if you said you weren't going to publish any of their papers, even if you redact it you have to be careful. It could be really interesting to put some information or case studies out there but you still need to make sure you're not violating some contract provision or some... Even if it's not a contract, but some expectation of your client.

Deb Zahn: Yeah. I've known people who've gone on podcasts and said the names of their clients. I'm like, "No. Do you have written permission to do that? Is there something that enables you to do that without violating the confidentiality clauses in your contracts?" I think people get so excited and they just go for it and they don't think that their client might have very different feelings about what you just did.

Sarah Swank: Absolutely, yeah. Even though you're very easy to talk to and it'd be very easy to want to spill the beans but you still can't do it.

Deb Zahn: Exactly. I'd be like, "Well, just tell me an example and you can say their name." So that's fabulous. Now, you've mentioned trademark. So you mentioned logo. I have a podcast, you folks actually did the trademark work for both my logo and my podcast art. Why does that matter?

Sarah Swank: Yeah. I think otherwise, if you spend the time to put together this really beautiful piece of art and you're going to put it out there. You want to protect that, because that's no different than we're copywriting a piece of paper that you have or even instead of white paper or something. You want to make sure that you're protecting out there. Because what could happen is if someone goes to try to steal it or do something like it, you're protected. So maybe you have a brand that looks really interesting and cool and if you put it out there and it looks a certain way and I can't say any examples. because we just said we wouldn't talk about clients. But it looks a certain way, I have this kind of thing and it's for this kind of service. Again, I'm not an intellectual property lawyer. But if you have that out there and someone else tries to do that and copy you, you might be able to stop them.

You might be able to send a cease and desist letter saying, "Nope. You can't do that, I thought of it first. I already have it, you can't have it."

Deb Zahn: Yeah. I can give you an example because it happened to me.

Sarah Swank: Oh, no.

Deb Zahn: Before my husband and I got married we did a toolkit on how to sustain improved outcomes and it was beautiful and by the time we were done with it we were married. I think the toolkit really brought us together, but it had this beautiful logo on it or it had essentially what was hidden romance. It had a big oak tree because we met in Oakland and it looked a certain way. We did not trademark it, we had copyright statements on the bottom but we hadn't done anything in addition to that. We recently found out that somebody took our stuff which was in the public use because it was paid for by foundations. But took our stuff, altered it a little bit and got paid for it. They were actually a subcontractor to a prime contractor with... I'm going to say the name because you're going to know who it is. HRSA, which is a government healthcare entity and they took our stuff and pawned it off as their own and they had one little tiny thing saying it was adapted from us.

But they didn't get permission, they didn't get anything and we hadn't thought enough about what types of protection should we have so that folks didn't have the ability to suddenly say something was theirs.

Sarah Swank: I think it's important. Yeah. If you can do it in the beginning, that's best.

Deb Zahn: Yeah.

Sarah Swank: Also, if it already happened you still might want to talk to an attorney because there may be some remedies against that. Because ultimately if you think about it, if you take any name brand product and someone else tries to take it you can get money off of that. Money damages if someone takes your work products, again I'm not going to guarantee results but.

Deb Zahn: Let's go get them Sarah.

Sarah Swank: Yeah, let's go out there. But I would say it's not over, right? Everything I'm saying is like it's better to do it in the beginning. But if something happens to you and it really is your work product and you're like, "This is my livelihood and this person really has stolen it." You still might have some ability to say there are some... They call them common law protections. There might be some other protections under state law, there might be other protections. So don't give up if it's a really big deal, really don't give up yet.

Deb Zahn: Oh, no. I definitely have and when I saw it I'm like, "We're having some conversations and we might bring a lawyer in." Because it is something that's a valuable asset. Part of what we assumed my husband was going to use post-retirement to generate some revenue and someone got paid for it. Someone took money essentially to erase two parts of what we did and everything else is word for word.

Sarah Swank: That would be a fun one, wouldn't it?

Deb Zahn: That would be fun. Well, just it's also we like our stuff out there because it helps people but at the same time you got to be a good person when you're doing it. So yes, thank you. We are not dropping it because we were kind of appalled when we saw it. Is there anything else that you would say to a consultant look, if you're going to prioritize spending some money to protect yourself it should be these things?

Sarah Swank: Yeah. I think part of what you want to look at is... I think you said intellectual property confidentiality. You might want to get an NDA, because sometimes people don't want to engage you yet. I think I talked about it but I was thinking, "What about something else I would say?" Getting a very easy maybe one or two pager, front and back NDA which is a nondisclosure agreement and you could even use those with your subcontract. I mean that's like a multipurpose, you could use it with your clients, a subcontractor, an employee. There are a lot of places that could go if you can get a good one that's more flexible because that's protecting your information when you're talking to somebody. You can have a mutual one so it applies to both them when they're talking to you because you're not engaged yet and also, you can look sophisticated too. If you know you're going to do something really confidential with someone's information and they're not engaged, they don't have any protection to get for themselves. So if you can say, "Yeah, we usually have this NDA that we do."

They might be like, "That's great."

Deb Zahn: Yeah. You do look sophisticated because then you can also say, "Well, why don't you send us yours? We'll send you ours and then we'll figure out which one works best for us." Clients like it because you look like a grownup business.

Sarah Swank: Yeah. You look like you know what you're doing, and it's also protective of you too. Because if you sit down and start talking about... Let's say they want to see your amazing white paper and you don't have it out in the public and you are saying, "Yeah. Let me give this to you to look at. But you can't use it past this moment." Right? "This is just to get the engagement and then after that I don't want you using it." I know it's hard to un-see things. Everyone says, "Sarah, I can't un-see things." Yeah. But you have obligations when you sign something, and you have to follow what you sign.

Deb Zahn: That's right. So I'm going to give you another example, again I've been consulting 13 years now. I've been through a lot. I've learned a lot of lessons and that's why I wanted you on so other people could avoid it. So way back when I had... Without a nondisclosure agreement, because I didn't think about it. I had reached out to a foundation because I had an idea for a project and of course I reached out to them because I wanted to do the project for them. It was completely and utterly my idea and we didn't have a non-disclosure agreement. There was nothing that sort of obligated them to not run with it, and they loved the idea. Then they put an RFP out for it. It was so painful, and I was shocked by it because I thought, "Well, don't we have a personal relationship here?" And we did, two of them I'm still friends on Facebook with and it's fine. But they didn't think about it the same way I did, they weren't trying to screw me over.

They conceptualized it just as me being friendly saying, "Hey, wouldn't this be cool if you did this?" I was pitching to them, and a non-disclosure agreement could have given me some protections with that.

Sarah Swank: Yeah. So I think that's something that would be worth it to do. Another thing I think you and I were talking before, it's like when do you do something under privilege? When do you actually want a lawyer in the mix and how do you engage in that way? I would say, I've had where we're working on something and then there's an audit that's about to happen and then I meet the consultant and they're like, "I've been looking for you all my life, I'm so happy that you're here. Because I have a bunch of corporate people or I have a bunch of these kinds of people and we're just so that you speak my language. I know it's under privilege, it can't get..." If we do, I want to say an audit for example or an evaluation or something that could go either good for the client or bad for the client. If it's done under privilege then it may not be disclosed in litigation or otherwise and it could be part of a due diligence, a government investigation, an internal investigation.

It could be used in a lot of different ways and having that attorney engaged with the consultant. For me, that goes the other way too. Where I'm working on something and I'm like I'm just cost prohibitive to do this work and it would be really fantastic if I had a consultant doing this piece. Or I need them to do this piece, they need to be third-party independent and the clients ask me a question and now I need to have a third party come in and do this assessment. We're not supposed to influence them but it's going to be under privilege. So I think it is understanding how to work with your lawyer friend when you have that idea and also when you're like, this client's getting a little bit out of my comfort zone. because I've heard that too, where they're like, "Feel comfortable, I'm an expert in this." But they're starting to ask me legal questions, like real hardcore legal questions, and I can kind of answer them. But I don't want to Google, Frankenstein the legal answer either and I need somebody to come in here and help.

Deb Zahn: Yeah, exactly. "How should someone do a merger, Google?" It's like you don't want to be the person that does that. But you've also brought up lawyer friends, so some of my best friends are lawyers and that is a wonderful way that I've been able to really serve my clients. But also have a really good time and so there are including your firm some folks at your firms that I've worked with over the last decade. We love working together, we often call it getting the band back together. So what are some options for when a consultant who's not a lawyer should think about this might be a great opportunity to partner with a lawyer because now we bring something more?

Sarah Swank: Yeah. I think again, if you have something that has an underlying complicated legal issue, or it could be disclosed in litigation or to a regulatory agency. Or if you have a really good area of expertise where lawyers are out working in that area. But from a cost perspective, it would be probably better to execute on certain ideas with a consultant and also I love what you said Deb, which is when they're stuck. I said when clients are spending and you're trying to advise them out of the spending and you're like, "You know what? You need somebody to come in and figure out what path you're going to be on. Because otherwise you're going to be talking to me for a long time and you're going to spend money on me trying to coach you somewhere." Sometimes I can do that. But other times it's so deep-rooted in their operations that you really do need somebody to help direct it, maybe it's just not what they do all day. Right? Maybe it's not their expertise or maybe they don't have the bandwidth right now because they have another strategic goal they're doing.

Deb Zahn: That's right.

Sarah Swank: So I think it's really great. I mean I think consultants pull lawyers in and lawyers pull consultants in and if you have a really good trusting relationship and you work well together and you have fun, it's great and the clients see that too. I don't know what you think Deb. But when I've done it, when it's gone really good for me from my perspective. They're not overselling my clients, they're not pitching over me, we're in unison together and the same thing. A consultant doesn't want to bring a lawyer in and then they're pitching work over you. It just doesn't feel good, right? But it seems like you're in unison. Everyone understands their lanes and where they're going to be and where we overlap and it feels more efficient, I think the clients end up really happy with that.

Deb Zahn: They love it because what they hate, and I've heard this many times from them is now they have to manage all of these different hired guns. What they really want is, "Can y'all just operate like a project team?" So anytime I've worked with you folks or I've worked with another law firm, you can't tell that we don't work together. It looks like we're seamless, there's someone who's the lead, who's basically making sure everything's going the right direction and being the client interface. But no one's trying to sell on the side, no one's going over anybody's head and it's fun. I mean this is how you also get to work with other people who have different experience, different lives and then they think of you next time there's a gig and you think of them next time they need someone who can do what you do. I have gotten so much business from my relationship with lawyers who have seen me in action, and I've seen them in action and I've given so much business to lawyers because we like working together.

The clients love how we work together, and we recognize where our limitations are and where the other one's wonderful goodness starts. So that's when it gets great.

Sarah Swank: Yeah. To me, I don't know. Maybe a lot of people that are listening. I get energized when I'm on a really good team, smart people working hard and efficiently and really getting a good result for their client. That is when I feel like I'm at my best and inspired and it's just sitting there just in your ivory tower as a lawyer. That's not that much fun.

Deb Zahn: It doesn't sound fun. Yeah, I love it. I recall meeting where it was a bunch of CEOs, and we were sort of going around and they had ideas because they're CEOs and CEOs have ideas, and I was facilitating. I kept turning to the lawyer saying, "Are we in jail on that one? Are we going to jail on that one?" His answer was, "Yeah. You're kind of running afoul of this federal regulation, so let's rethink this." What it did is the CEOs didn't have to come back another time and have us say, "Yeah. We checked with a lawyer and it turns out you can't do that, now we're back at square one." It happened in the moment and the lawyer was part of it so that we ended up with the result we needed in real time.

Sarah Swank: I think that's great. Yeah. I think for anybody it's frustrating when somebody gets 50, 75% down the road and you're like, "I wish you called me in the beginning." Because you have a really cool idea, and you just went totally south on, you do not want to be over there right now. But your concept is awesome, but you just did not go in the right direction with that. So, yeah. I mean, you can always fix it but like I said all this is about prevention, right? Doing it right in the beginning so that you're not later trying to fix it. It costs more money and time, right?

Deb Zahn: If anybody is listening to this and they're like, "She seems really cool. I want to work with her." Or, "I want to hire her." Where can they find you?

Sarah Swank: Yeah. So I'm at the law firm of Nixon Peabody and you can email me at S-S-W-A-N-K. So my first initial Sarah Swank at or you can give me a call if you want at 202-585-8500. Which seems like it's the main number to the law firm, but it actually is my direct dial number. A little known fact, it looks like you're calling the main... Who has an 8500 extension? I don't know but I do.

Deb Zahn: That's fabulous. We'll have that all in the show notes. Now, let me ask this. When you're not out doing good things as a lawyer, how do you bring balance to your life however it is you define that?

Sarah Swank: Yeah. I think for me, as I'm kind of... Maybe the pandemic did this to me, maybe I've just always been like... I think just stopping. I know that sounds so strange but I'm a go, go, go high energy person and I love what I do so I'm very into it. But I think there's something about finding just even some quiet moments in the morning every day or a little quiet... Whether it's to take a step out of your office and go for a quick walk, or just to sit and give yourself time in between calls. I just think that's where I find my balance, it's just that moment by myself here and there and the other place I find balance is with people. I really get energized by people and working on really interesting projects and trying to solve really, really complicated problems that everyone's stuck on and rolling up my sleeves and fixing it. I find balance in that, which is probably why I need to sit quietly from time to time and be like OK. But I mean I keep two rocks on my desk. One says, "Think," and one says, "Inspire."

So every time I get a little lost I touch either my think stone or my inspire stone or I show them to clients on Zoom calls when we think we need a moment that-

Deb Zahn: That's so cool, I love that. Well Sarah, thank you so much for being on the show. I loved it and you have filled a void in the podcast which was getting on and talking about some of the legal protections that folks need to think about. So I really appreciate it.

Sarah Swank: Yeah. No, this was great and thank you so much for having me.

Deb Zahn: Thanks so much for listening to this episode of the Craft of Consulting podcast. I want to ask you to do actually three things. If you enjoyed this episode or you've enjoyed any of my other ones, hit subscribe. I got a lot of other great guests that are coming up in a lot of other great content, and I don't want you to miss anything.

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