Practitioners in closely held companies and family business law recognize the need to provide legal services that further the strategic objectives of the enterprise while simultaneously accommodating the personnel, familial, and estate planning goals of enterprise owners. The practitioner’s toolkit must include the tools of the business organizational expert (deep familiarity with the alternative legal frameworks for organizing an enterprise, including corporations and limited liability companies) and of the estate planner (knowledge of the means by which ownership and management succession can be effected, which includes trust law and may include mergers and acquisitions, and the tax consequences of each succession alternative).
Depending on the jurisdiction, closely held company law may differ significantly from the law of the same jurisdiction that is applicable to corporations and other enterprises that are publicly held. For example, in many jurisdictions owners in closely held companies are subject to heightened fiduciary duties to one another, which may preclude structural actions or transactions that would be permissible in the public company sphere. On the other hand, closely held companies are free from many of the disclosure and other regulations that constrain publicly held enterprises in their activities. This is true even when the closely held company is of equal size as a publicly held participant in the same industry. Practitioners in this area must be experts in recognizing these legal and regulatory differences and also be aware of the alternative governance frameworks available in other jurisdictions.
The key challenge in family business law is to structure an environment in which familial goals and interests and enterprise goals are mutually reinforcing. This requires empathy and creativity on the part of the practitioner, particularly the ability to translate essentially non-legal concepts such as stewardship into legal script, all in a tax-efficient manner.
Edward E. Steiner, Partner