Bach's Legacy and How an Outside General Counsel Can Help Your Business Sustainability
Sustainability simply means the ability to be maintained or to continue. Today, we usually think of sustainability in the context of energy or the environment. However, sustainability also is important to every individual and every business, because without a sustainable foundation, the individual or business will “burn out.”
The Bachs were an esteemed musical family, which produced some 50 musicians and composers[1] in central Germany from the 16th into the 18th century. One might say that family had created a “sustainable” family occupation that had been passed from generation to generation. Yet most professional musicians would be unable to name most of the Bach family, except for one: Johann Sebastian Bach, who lived from 1785-1750.
There was nothing remarkable about J.S Bach’s career. Like most of his family members, Bach lived most of his life within a 50-mile radius in central Germany. He was a sought-after and respected organist and spent much of his career as the chief musician for a princely court or a community of churches.
As was the custom, he composed prolifically for his employers, but was far from an esteemed composer during this life. In fact, J.S. Bach was a second choice to Georg Philipp Telemann[2] for a major post at Leipzig, which J.S. Bach obtained only after Telemann turned it down.
Why J.S. Bach’s Music Was Extraordinary and Sustainable
Why, then, is J.S. Bach one of the greatest and most extraordinary western composers who ever lived?
J.S. Bach became extraordinary and his music was sustainable because he stepped outside of the comfort zone of the Central Germany music community and found novel solutions to overcome obstacles that prevented musical innovation.
During Bach’s time, each keyboard instrument was tuned to a particular key. Music played on a keyboard not tuned for that key would sound terribly out of tune, limiting the selection of pieces that could be played before the instrument would need to be re-tuned. Bach promoted tempering[3] of keyboard instruments, so that they could play in every key, a radical departure from the norm of the time. Bach wrote his famous collection “The Well-Tempered Clavier,” consisting of 24 pieces (one in each major and minor key) to demonstrate the value of tempering. Today, it is difficult to find a keyboard instrument which does not use tempered tuning.
Some businesses are like Bach contemporaries, such as Reinhard Keiser[4], Johann Aldolf Scheibe[5], or Christian Pezold[6] (none of whom are known today outside perhaps of Baroque music academia). Or the businesses may even be like Telemann, who is known to have secured a salary three times that which J.S. Bach commanded during his lifetime, but who now is known as a prolific and solid, but not particularly creative composer. Those business are running well: there is a nice profit, the owners and employees are happy and successful; they are doing the same thing they have always done and expect their fortune to continue forever.
Yet without good legal infrastructures that include solid formation documents, strong contracts, and protection of intellectual property, those businesses lack sustainability. Unless they have a creative business attorney helping to guide them, those businesses may find they are built on legal quicksand without anyone around to keep them from sinking. Without innovation and a creative approach, they are less likely to be sustainable for the long haul.
Creative General Counsels Help Ordinary Businesses Become Extraordinary and Sustainable
Some business owners avoid dealing with attorneys, because they view attorneys as the people who put restrictions on their businesses. However, a creative attorney can help business owners find solutions to their legal problems and to create a sustainable legal framework and infrastructure that frees the business and its owners to do extraordinary things that help the business to attain long-term sustainability.
A creative and detail-oriented business attorney can help business owners form a legal infrastructure that
Includes the best business structure (corporation, limited liability company, or partnership) for your business’ current needs, while providing for flexibility as your business grows;
Proactively evaluates the tax consequences of business options and minimizes tax liability for you and your business;
Identifies and assures compliance with laws and regulations specific to your business;
Includes carefully negotiated strong contracts and leases that accomplish your business goals, while protecting your business from the unexpected;
Prevents lawsuits by employees, customers, and vendors and minimizes the damages if your business is sued;
Protects the business’ intellectual property and helps the business comply with intellectual property laws relating to websites, social media, and other business activities; and
Plans for the unexpected so that the business can continue to operate in the case of partner disputes, death or disability of the owner, divorce, or simply a change in the economy or the industry.
An Outside General Counsel Has the Business’ and its Owner’s Backs
For nearly a decade, I was in-house general counsel for a national company. A general counsel develops an intimate knowledge of a company – not just of the company’s business but also of the company’s leaders and their personal and business goals, risk tolerance, and the business culture they want to create.
With this specialized knowledge about your particular business, a general counsel can
Assure that your business is up-to-date on its “routine maintenance,” so that it remains in good standing and in compliance with legal requirements;
Provide highly customized service to your business;
Quickly identify and prevent potential legal problems before they become big legal problems;
Get up to speed much more quickly than an attorney who doesn’t know the company well when legal concerns do arise, saving money and frequently producing a faster and more suitable result for the company; and
Proactively address developments which threaten the long-term sustainability of the business.
Although small businesses usually cannot afford a full-time inside general counsel (and many larger businesses choose not to do so for a variety of reasons, including cost allocation or privilege concerns), even small businesses can benefit by engaging an experienced outside general counsel who has their back and is there to pull them out of the legal quicksand onto a sustainable foundation.
Outside General Counsel May Help Sustain Privilege for Sensitive Matters
As most business owners know, communications to their attorney are privileged, which means they are confidential, and generally, the attorney cannot be required to disclose the communications in Court proceedings. In-house counsel frequently provide both provide legal advice and participate in the business operations, which can make it difficult to determine which communications are privileged. This challenge is exacerbated where the in-house counsel serves both as counsel and as an officer or director of the business.
This mixed role generally does not exist with outside general counsel, who are not officers or the business and nowadays rarely will serve on the board of directors. Therefore, even where a business has in-house counsel, it may be in the best interest of the company to have outside counsel handle certain investigations and highly sensitive matters where preservation of the attorney-client privilege is key.
A business can have the “best of both worlds” if in addition to in-house counsel, it has a regular outside counsel who functions as an outside general counsel has developed an intimate knowledge of the business through frequent and routine representation of the business. An outside counsel with intimate experience of the business is uniquely suited to handle the business’ most sensitive matters while also preserving the attorney-client privilege for communications and reports.
Sustainable Business
Every business has in its future. For some businesses, the day will come when a new legal or other development will threaten very existence of their businesses due to unsecure business foundations. Other businesses, which have built a sustainable legal infrastructure, are likely to be able survive the test of time.
©2018 by Elizabeth A. Whitman
[1] Vitus Bach, the great, great grandfather of Johann Sebastian Bach, started the family music tradition in Germany in the latter part of the 16th century. The family was so tightly connected that Johann Sebastian Bach’s first wife, Maria Barbara Bach and the mother of his first seven children (including twins who died soon after birth and a third child who died before he reached one year of age) was his second cousin.
[2] Georg Philipp Telemann, just four years older than J.S. Bach, came from a non-musical family and was largely self-taught as a musician. At one point planned to pursue law as a career, but musical activities soon overwhelmed his law studies. His personality and energy made him a popular composer and sought-after musical director. During his lifetime, his music was published and distributed not only throughout Germany, but also abroad, such that during his lifetime, Telemann was widely considered to be the greatest living composer. Telemann was not only a contemporary of J.S. Bach but also was a friend, and was godfather to J.S. Bach’s son Carl Philipp Emanuel, who became a famous musician in his own right.
[3] At the risk of oversimplifying a topic on which treatises have been written, for unfretted string, vocal, and wind instruments, it is possible for a performer with an excellent ear to adjust the tuning to the music so, for instance, a C-sharp is slightly higher than a D-flat. However, a keyboard instrument has a limited number of keys, and they are set up so that the same key is played for both C-sharp and D-flat. Fretted string instruments have a similar challenge, as they have pre-set divisions of the string lengths. Therefore, traditionally, a keyboard or fretted string instrument would be tuned for the key of the music (since key signatures never include both C-sharp and D-flat, that particular key would be tuned to one or the other depending upon the key signature). Tempered tuning was first suggested in the 15th century by musical theorists for instruments like keyboards in which the performer cannot easily adjust the tuning of a note during a performance. Tempered tuning, referred to as even temperament, involves dividing an octave into equal semitones, so that most intervals are slightly out of tune from an acoustical standpoint but still are not dissonant to the human ear.
[4] A prolific and popular opera composer of the early 18th century.
[5] A friend of Telemann’s who was a German-born composer and music theorist of the early- to mid-18th century.
[6] A German composer who was a contemporary of J.S. Bach, most of whose works have not survived to the present day. Ironically, the Minuet in G from J.S. Bach’s Notebook for Anna Magdalena Bach, now is believed by many actual to have been written by Petzold. Nevertheless, Minuet in G continues to be attributed to J.S. Bach in modern repertoire, including the highly popular Suzuki string method books.
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