Recently I could not resist jumping in on what turned into a debate on the right way to practice franchise law. Long story short, a colleague maintained that in franchising, attorneys have to “pick a side.” The franchise lawyer/litigator claimed one could either represent franchisors, or one could represent franchisees–but never both without, apparently, being morally deficient.
As someone who spent the first 10 years of her practice representing exclusively franchisors, I strongly disagreed and here is what I said:
My franchisor clients are quite comfortable with my franchisee representation and vice versa. When we are discussing choices/decisions, I offer them the arguments and positions I could take from “the other side.” This allows them to make better informed decisions about the potential consequences.
Of course the larger franchisors are most likely to say pick sides, because they are more likely (in a broad sweeping generalization) to say my way or the highway. They don’t have to care what the law appears to say, just get it done their way–except for fear of consequences. Smaller franchisors can’t afford to pick unnecessary fights and are often more amenable to radical concepts like “fair” and “balanced.”
Of course franchisors want “mere technical violations” to be deemed inconsequential while franchisees feel violations of the law call for consequences. As franchisor’s counsel does that mean we can tell our clients it is OK to ignore franchise laws and regulations? That it will be niggling and unreasonable of a franchisee to want a remedy in such a case?
There is always a juggling of business practicality versus the legal consequences. Who chooses what? Where are the ethics in that?
Isn’t it unreasonable of the cop to give us a ticket for going a mere 65 in a 60 mph zone? So what if the speed limit is 60 mph. Who’s on the dark side?
I have seen a lot of small start up franchisors poorly served by developers/advisors who come from the “think big” “ramp up big” side of franchising, all packaged with franchise agreements that keep the franchisor’s foot on the throat of the franchisee and do not reflect the intent or desire of the entrepreneur, but they train the founder/newbie franchisor to view their franchisees as the enemies to be kept in line and slapped down “as deemed appropriate” “in their sole discretion.” Then when the novice franchisors stumble, as they inevitably do, they are surprised by the hostility and unreasonable expectations of their franchisees.
My first years of practice were all for franchisors, and I count my blessings that I landed in private practice and have counseled advised and fought for and with so many franchisees while still working with entrepreneurs to build their franchise systems. I am still learning all the viewpoints. Holistic, not antagonistic.
Bad guys show up every day on both sides.
It’s OK to choose plain vanilla, but I like the rainbow, sometimes with a large dose of problem-solving, and that’s OK too.
It doesn’t always have to be easy.
I also think my way gives a balanced, more fairly reasoned approach to decision-making for my franchisee and my franchisor clients. Happily, I heard from many colleagues who applauded my rebuttal.