Starting an independent consulting business can be an exciting and rewarding career move. However, being your own boss comes with a lot of freedom and flexibility, as well as some significant legal considerations that all independent consultants must take into account.
Having a solid understanding of the legal landscape is essential for protecting your business interests and avoiding any issues down the road.
In this comprehensive guide, we'll explore the key legal aspects independent consultants need to keep in mind when starting their own business.
Structuring Your Business
One of the first legal decisions you'll need to make is how to structure your independent consulting business. There are several options to consider:
The simplest business structure is a sole proprietorship, where you operate the business as an individual. The major advantage is the ease of setup; you can just start conducting business right away. However, the flip side is unlimited personal liability if your business is sued! (believe it or not, but this may happen!)
Forming a limited liability company (LLC) keeps your personal assets protected from business debts and liabilities. LLCs take more time and money to establish, but they limit your personal exposure. You'll need to register your LLC with your state.
S corporations have a special tax status with the IRS, with profits and losses passed through to your personal tax return. This avoids double taxation. Filing as an S corp. requires filing specific tax forms but can provide tax advantages.
Consult an accountant or attorney to determine the ideal structure for limiting liability and optimizing taxes.
Independent Contractor Agreements
The agreements you establish with clients are critical for avoiding legal issues as a consultant. You'll want to use a carefully crafted independent contractor agreement that lays out the terms of the relationship. Key sections to include:
- Statement of Work - Detailed description of the services you will provide.
- Payment Terms - How much you'll be paid and when, such as an hourly rate or a monthly retainer.
- Intellectual Property - Who owns any IP created, like custom software or designs?
- Expenses - What expenses will you be reimbursed for, and what is the process for submitting receipts?
- Term & Termination - Length of the contract and how either party can terminate early.
Having strong contracts prevents misunderstandings down the road about expectations, payments, and deliverables.
Taxes & Licenses
As an independent business owner, you'll need to make sure you have any required licenses and that you're staying tax-compliant.
- Business license - Most states and localities require a business license to operate legally.
- Sales tax collection - If you sell taxable goods or services directly to end customers, you must collect and remit sales tax.
- Estimated quarterly taxes - As a business owner, you pay self-employment taxes. Make quarterly estimated payments to avoid penalties.
- 1099s for subcontractors - If you hire subcontractors, you may need to issue 1099 tax forms if annual payments exceed $600.
The right business insurance coverage is essential for all consultants.
- General liability - Protects if a third party sues for property damage or bodily injury caused by your operations.
- Errors & omissions - Covers financial loss arising from a mistake or failure to perform your professional services.
- Cyber liability - Covers data breaches, hacking attacks, and electronic privacy violations.
- Business property - Reimburses you for lost or damaged office equipment and other business property.
- Workers' comp - Required if hiring W-2 employees, provides benefits for work-related injuries.
Shop around for customized policies that fit your consulting niche and clientele.
Intellectual Property Protection
You'll want to make sure any intellectual property developed through your consulting services is properly protected.
- Copyrights - Automatically granted for written material, design work, and software code authored by you or your employees.
- Trademarks - Register important brand names/logos associated with your business to prevent unauthorized use.
- Patents - Can protect unique inventions and processes but require submitting a patent application.
- Non-disclosure agreements - Require clients/partners to keep proprietary information confidential.
Be mindful not to infringe on any of the IP rights of other companies in your consulting projects.
Hiring Contractors & Employees
If your consulting business grows to the point of taking on contractors or employees, additional legal considerations arise:
- 1099 vs W-2 - The IRS has stringent criteria for contractor vs. employee classification to prevent misclassification.
- Employment practices liability insurance - Covers claims like discrimination, wrongful termination, and harassment if hiring W-2 staff.
- Employee agreements - Have staff sign NDAs, IP assignments, and confidentiality agreements to protect business interests.
- Employment/labor laws - Comply with laws on minimum wage, overtime pay, discrimination, family leave, etc. if hiring W-2S.
Other Common Legal Needs
Some additional situations that commonly crop up for consultants from a legal perspective are:
- Non-compete agreements - Review carefully and try to negotiate if a client demands an unreasonable non-compete that restricts your consulting with other clients.
- Travel and expense policies - Establish policies aligned with IRS rules on deducting business travel, entertainment, and other expenses.
- Vehicles - Follow IRS rules on deducting vehicle mileage and expenses if using a personal car for business.
- Office space - Look at any zoning restrictions if you plan to operate out of a home office.
When to Engage a Lawyer
While learning the legal landscape is important, consultants shouldn't hesitate to tap legal counsel when needing professional advice. Common situations where engaging a lawyer makes sense:
- Reviewing contracts and agreements with large clients
- Collecting outstanding payments from difficult clients
- Handling intellectual property matters
- Navigating business disputes or potential litigation
- Buying liability insurance or dealing with claims
- Addressing landlord/tenant issues for office space
- Staying compliant as the business grows and takes on contractors and staff
The right legal counsel familiar with working with consultants can save you headaches down the road.
Navigating legal issues is a reality for every consultant, but not a reason to be daunted. Being mindful of key legal considerations from the start and establishing good contracts and business practices can set your consulting business up for success.
Don't hesitate to seek legal help when needed as your business grows. With a proactive approach and the right legal foundations, consultants can confidently take on new clients and maximize their independence.
Disclaimer: While this article covers common legal considerations for independent consultants, it does not constitute legal advice. The author is not an attorney and cannot provide legal counsel. Any independent consultant should seek guidance from a qualified lawyer when making legal and business decisions to best protect their interests. This article is provided for general informational purposes only!