A Conflict of Agents: How Attorneys Kill Deals

Russ Allred MBA 

A business broker’s job is to bring a willing buyer to a willing seller and draft a deal that benefits them both.  A typical deal, with SBA financing requires that the seller carry some paper, ensuring ongoing oversight for the new and inexperienced buyer.  A cooperative working relationship is essential to a successful deal.  The broker’s compensation depends on both sides accepting the deal and working together.  This past month I spent negotiating, cajoling, encouraging and babysitting the buyers and sellers of two deals that had been polluted by the influence of their respective attorneys.   

I have many attorney friends.  I required the advice and services of attorneys to represent me in a commission dispute.  An attorney prepared my family trust, helped me incorporate my business, and attorneys refer me as a receiver to mitigate losses while business partners work out their differences.  I like and need attorneys and my Business Broker Code of Ethics requires me to recommend my clients seek the advice of an attorney, but when it comes to selling a business they can be deal killers.

The job of an attorney is to aggressively represent one side.  They get paid based on the time that they work.  It is to their advantage to foment discord between parties.  Attorneys decry that business brokers have a conflict of interest because they may represent both the buyer and seller in a transaction.  They seldom see their own conflict of interest, in that their client wants to do the deal.  Their job should be to facilitate that transaction and prepare against a worst-case scenario. 

In one of the deals I had to save this month, I negotiated a $2.3 million dollar compensation package for my sellers.  My client had previously hired a broker who listed their business for only $1.6 million.  It was truly the best deal that anyone could have offered them.  The buyer demonstrated his competence by negotiating an SBA loan, and had a back up loan with another willing lender.  In my 36 year career working with businesses, the situation was unprecedented.  The Sellers specifically said to me, “We really like these buyers.”

The sellers hired their attorney to prepare the stock transfer.  As the transaction progressed, the attorney also prepared the seller carry note.  A job that escrow usually does.  As is often the case, the purchase loan was delayed due to bank requirements.  The sellers started to refer to the buyers as “incompetent, inexperienced.”  The seller carry note became more restrictive.  The sellers tried to infuse punitive damages on the buyers for delaying the deal.  When the loan was funded, they refused to provide the transitional consulting that they originally agreed to.  When the buyer had questions about the new requirements the sellers’ attorney told the buyer to have their attorney call her.  Their business broker certainly didn’t advise these actions.  The contention came from the attorney.  In the end the sale was consummated on the terms I had originally suggested, but the parties are off to a very bumpy relationship.  The attorney nearly killed the deal and on her advice the sellers may yet lose the $300,000 they are carrying. 

When you seek the advice of your attorney, take charge of the transaction.  Make your best deal and instruct the attorney what you want them to do.  They work for you.  Keep a lid on the cost by controlling the time they work.  Above all, recognize that you can’t sell your business without a buyer and the buyer must be successful to pay you.  Don’t let your attorney put a wedge between you and your future.

Agency Disclosure in Business Sales

By: Phil Haney     Senior Executive Broker & Sales Associate

Agency Disclosure for the Bureau of Real Estate and for Business Brokering in California with the California Association of Business Brokers is mandatory and critical when representing a Seller in Selling a Business and a Buyer in the Purchase Process. This is the Law under California and the California Civil Code. This Disclosure insures that any Seller and Buyer understand fully their rights when it comes to representation and transactions under the Law. So you are aware a Business Broker can be the agent of a Seller or Buyer or both the Seller and Buyer or what is called a Dual Agency. The Agency Disclosure explains concepts and definitions concerning the relationship between a principal and an agent in the sale of businesses and is required. You should read it very carefully and acknowledge that you have been advised of the contents. 

Here are a few of the main points in the Agency Disclosure: 

1. As a Seller Agent the Agent under a listing agreement with the Seller acts as the agent for the Seller only.

2. As a Buyer’s Agent a selling agent can, with a Buyer’s consent, agree to act as agent for the Buyer only. In situations like this the Agent is not the Seller’s agent.

3. An Agent representing both the Seller and Buyer can legally be the agent of both the Seller and Buyer or what is called a Dual Agency situation.

 In all cases the Agent must operate and give fiduciary duty of utmost care, integrity, honesty and loyalty in dealing with various parties and other affirmative obligations with fairness.

 Under California Law for Full Disclosure the buyer and seller of a business are each required to fully and fairly disclose to the other any and all information which is known or should be reasonably known which could impact the other party’s decision to enter into a transaction.  

 With Agency Disclosure each party is advised to consult with independent attorneys, accountants, and other competent professionals on entering into a transaction. Business Brokers and Agents are not licensed, qualified or entitled to provide legal, accounting, or tax advice under Agency Disclosures and Transactions under the California Civil Code for Agency Disclosure. 

  A Business Broker Professional & Consulting Service Executive such as our Sunbelt Business Broker & Advisors organization can provide the necessary professional knowledge, skills, and business advice and Representation to either sell your business, provide consulting and an improved thought process for you, and for prospective buyers to purchase what they desire. To also represent the sale of the Business for you when ready or to assist you as a Buyer.  Give me a call or email me to coordinate a confidential meeting on your business and representation or buyer requirements. I can be reached at my email address at phil.haney@sunbeltnetwork.com or calling our main office or my personal cell phone at 661-644-5313.