Having a solid attorney at your side is crucial. Your clients have an attorney, most likely. Why shouldn't you protect yourself as well?
Note: This article assumes you're already incorporated. If not, then you need to stop reading and get incorporated now.
The Web Design Business is Risky
Web design and programming are both fickle beasts. When it comes to design and creativity, sometimes you simply need more time for things to "click." Programming is less right-brain intensive, but can still easily take up more time than you thought. A small change requested by a client, reasonable enough, can add a significant amount of time to programming. If those two weren't enough, add in third-party services or unique integrations you haven't worked with before, and you could find yourself in a project seemingly made of quicksand.
Those two aside, the business is risky for other reasons. Often, projects can take months to complete at a cost of many thousands of dollars. There's a lot at stake here, from being capable of doing the work to performing accordingly and on time. Sometimes, you're dealing with businesses who have much more in their coffers than you do. Often, you're the little guy.
Projects can easily turn into disasters if you are not prepared. The first step is ensuring that you have a solid Discovery Phase built into your process. You need to go above and beyond in the first stage to ensure you know what needs to happen. Additionally, it gives you an opportunity to set expectations. For me, what's not discussed doesn't happen without a Change Order.
Change Orders are crucial. You cannot be expected to do something that you did not know about, or didn't plan a timeline and cost for. Often, clients do not realize how complex, time intensive, or unique their requests are. This isn't a dig against clients, but you need to have an established Change Order process. This is where a solid attorney comes in. You should have an attorney draw up a contract for you, as well as a Change Order addendum that you can use for each additional request a client makes. Again, I cannot stress how important it is to set expectations in the Discovery Phase. You don't want to spring the idea of a Change Order on a client the first time they make a request.
The Role of an Attorney
As alluded to above, an attorney is absolutely necessary. There are many facets of contracts that you simply would not know. Don't try to be something you're not. A good attorney will ask questions and explain things to you, including weak areas of an agreement. He or she will work hard to protect you from litigation. For instance, if you assign all rights to your client, you could be giving a client ownership of your Designer Tools and/or previous code developed (including code already in use in previous client projects). This could literally be giving up the methods you use to earn a living. Not good! Worse yet, you could be giving a client the ability to resell, and profit from the reselling of, your work. If they want that ability, you deserve a cut.
Poor copyright or ownership terms are incredibly dangerous territories. Furthermore, you need to insure that you are working as an independent contractor and not as a Work for Hire. Hint: Work for Hire (PDF) means everything you do is owned by your client, and your work behavior, methods, et cetera are dictated by the client. Furthermore, you could be signing away rights to something you don't own (open source materials, for instance). You'll need an attorney to draft a contract that states the unique sum of the parts of the Work Product (the legal term for the entirety of the project) and how they relate are owned by the client.
An attorney is also crucial in making sure you get paid and that the Client has the ability to pay, irregardless of your Client's contracts with other third parties. In other words, a Client must promise they have the ability and willingness to pay, and that the payment doesn't depend upon their future or assumed income, contracts, et cetera.
There is a plethora of other considerations your attorney will discuss with you, and add to the contract. What happens if the client doesn't pay? When do you get paid in the first place? What happens when the contract is breached or one party gets sued? These things do happen in business; you, and your client, are no exception.
You're a Professional - Act Like it
I assume you actually do already act like a professional in your behavior. You wouldn't be where you are if you didn't. However, there's a second part to acting like a professional that is often overlooked: demanding respect. You're a consummate pro who knows their job and does it well. But, do you know your worth? Chances are you're undercharging. However, that's a discussion for another day. Part of acting like a professional is ensuring you're respected. Your clients do not have dominion and control over you. You're a partner in their success, and you need to make sure they understand that. Establish your worth and make sure they look to you for guidance. You're not there to simply perform a role (i.e. an employee). You're there to provide consultation, professional services, and a return on investment above what they are spending on you. Your actions, words, and behavior all dictate how a client will view you. If you're unsure about yourself, shy, or nervous then they will pick up on that fast; any good business person would.
What does "acting like a professional" really mean? Well, let's look at one thing professionals do: they have documents drafted and reviewed by attorneys. They don't assume they, or their client, understands the law and the consequences of an agreement, and therefore have a knowledgeable attorney review such. Do not sign a contract that has been altered from your original contract (one that was drafted by an attorney), and certainly do not negotiate or sign an addendum without legal aid. Furthermore, do not let a client tell you that their attorney said your contract or agreement is unenforceable or that you're in the wrong. Let your attorney tell you that, if it's even true. Don't be bullied by opposing counsel.
Trust, but Verify
You've most likely heard this mantra before in connection with politics. It also has great meaning when it comes to contracts and working relationships with your client. There has to be trust involved. After all, in the US anyone can sue anyone for pretty much anything, even if the contract says they can't. Granted, a suit may be likely to be tossed out, but even the threat of litigation is going to cost you hundreds or thousands of dollars. Sometimes you have to make concessions. An attorney will help you decide which areas are negotiable and which are not (for instance, never sign a personal guarantee). Be truthful and transparent with your client, and expect the same. A contract or Statement of Work cannot possibly contain every single task that is needed to be done. Your job is to make things as clear and concise as possible in the listing of your duties, and bring up topics with your client that may warrant an inclusion in the contract. This could be a great opportunity to expand the scope of work, and thus your income. Overall, make sure both your duties and the duties of your client are clear.
Your Client's Reaction to a Contract
Almost every single client expects for you to present them with a contact. If you're just getting started, you might feel that a client could be offended by you asking them to sign a contract. Don't. If they are offended, you need to run away as fast as humanly possible. But, here's a list of things you can, and should already be doing, to build up a great relationship with your client:
Put Client Satisfaction First
Understand that your client has goals; make sure they know you care and work diligently to make them happy. At the same time, don't agree to something that will hurt you.
Set Professional Expectations
Your duties should be clear, as well as the duties of your client. Make sure both parties are on the same page in terms of expectations for due dates, acceptance of milestones, and delivery of assets from your client to you. They have responsibilities, too.
Know, Follow, and Exceed Professional Standards
You know your industry, and your client might as well. In fact, most of my clients have used freelancers in the past, and had horrible experiences. Have high ethical, moral, and etiquette standards. Don't take your client for granted. Be better than your competition.
Be an Expert
This may sound obvious, but too many fail to become an expert, and maintain expertise in their field. Do so. Clients can tell.
Under Promise and Over Deliver
Be sure to promise what is required, of course, but don't promise too much. Then, go about your business in an exceptional fashion, providing way more service and professionalism than your client expects. Impress them.
Communicate Effectively and Often
Don't leave your client wondering what's going on. Talk to them respectfully, often, and be sure to ask if they have any questions. Make sure they don't doubt your dedication and interest. Use something like Zendesk for support; it's cheap.
Be Fruitful and Multiply
Woah boy. That's not what I meant. What I mean is share your knowledge with your clients. Not necessarily how to code, but what makes a website good and how to keep it rolling smoothly. Give them pointers (no pun intended).
Be Honestly Thankful
They are paying your bills; be thankful. Tell them thank you, and that you appreciate the fact that they chose you. When negotiating contracts, or an addendum, do this often and be genuine.
I don't want to be this person, but you should smile and be happy. It's incredibly clear when people aren't happy. In fact, if you aren't happy with your work, you should find another career or team up with someone who can motivate you.
Don't Be Too Defensive
Sometimes clients ask for things you simply cannot agree to. While from your perspective some requests may seem unsavory, that doesn't mean they are. If your client has a good attorney, or one trying to justify their existence, they may ask for considerable concessions. Stay true to yourself and be a professional by not agreeing to unfair terms, and instead be understanding and cordial in your response.
Business Without An Attorney
Get ready for some doomsday predictions that are a lot more likely than a comet hitting the earth. First and foremost, if you don't have an attorney to assist, you could be sued a lot more easily than with an attorney. Having an attorney, and mentioning to your client your attorney needs to review things before moving forward, further cements your professionalism in the eyes of your client. Without an attorney, you could also be giving up significant rights surrounding copyright and your performance. You could be losing a significant amount of money if there is no process to handle additional requests by your client or no way to demand payment. Chances are high that any contract template out there does not conform to the laws in your state, and could actually be in the wrong. Without proper language in the contract (a severability clause), the entire templated contract could be null if one part of it is unenforceable.
There are equally as many ways that a bad contract, or one you do not understand, can hurt you as there are ways having no contract can hurt you. One of the, if not the, single most important aspect of business is to have an attorney, especially one that roots for you (shoutout to my attorney, Jack!).
Have a Question?
If you have a question, I'd be happy to answer it. Granted, I am not an attorney nor can I provide legal advice, but I'd be more than happy to give you my perspective as a freelance web designer incorporated under the laws of the State of Florida. Leave a comment below or shoot me a message!
Thank you for reading.