By Andrew Branan, Extension Assistant Professor, NC State University
Over the years, my name has gotten around the state as a “farm lawyer.” This chosen label is how I’ve been known in the various North Carolina farming and conservation circles (such as CFSA), which was, of course, my intent when I started this career — first with American Farmland Trust — years ago.
But as I remind everyone, I’m just a regular lawyer who chose to work mostly with farmers. After all, most farm and agriculture law is just regular law applied to farming.
I’m currently continuing down the “farm lawyer” career path as an appointed Extension Assistant Professor with the Department of Agriculture and Resource Economics at North Carolina State University (NCSU), both as campus faculty and statewide Cooperative Extension agent. In this role – as I have throughout my farm law career – I travel across North Carolina to develop programs and educational materials for farmers and landowners on various legal topics. I’ll also teach courses in agriculture and environmental law to students enrolled in NCSU’s College of Agriculture and Life Sciences. People who know me well call this appointment my dream job.
The downside is that this transition to NCSU means leaving the private practice full-time. For some, this is perceived as a legal service void. I have been asked more than a few times, “Who will I send farmers to?” CFSA has asked me to discuss that question.
What Is Farm Law?
To me, farm law is the aggregate of various statutes and court decisions that apply to all human endeavors, including the elements of growing, processing, packaging, marketing, and selling the primary ingredients of food. These general laws concern real property, business structures, contracts, labor and immigration, taxation, waste disposal, general tort (e.g. injury) liability, debtor-creditor law, intellectual property, and so on. This is far too many areas of law for any one lawyer, or small size firm, to develop an efficient service model. It is how these areas of law apply in court, to the fact patterns of farming, that partly give us what most consider agriculture law.
Within the various state and federal general statutes and interpretive regulations, there are numerous preferences and exceptions for farming and forestry uses with peculiar processes and deadlines. That said, many state and federal statutes deal directly with agricultural production, such as seed regulation, perishable commodities, livestock integration restrictions, as well as the Farm Bill and its distributive infrastructure.
What Does a Farm Lawyer Do?
Speaking only for myself, most of my time in private practice was spent finding solutions to otherwise mundane challenges to farmers and landowners. I settled numerous real property transactions and otherwise designed, what I call, farm transfer systems (farm estate and business organization planning). I prepared hundreds of acres of leases–the smaller the farm the more creative and challenging that work. I counseled on how land disposition and subdivision impacted property taxes. I was also exposed to matters unique to farming, such as the National Organics Program appeal, the NCDA&CS seed dispute process, federal litigation on a poultry plant shutdown in Siler City, some Perishable Agricultural Commodities Act cases; even a Chapter 12 (Farm) bankruptcy, where I stood by in the courthouse and watched Farm Service Agency auction off my client’s land. I organized master farm entity structures to maximize Farm Bill program payments, negotiated solar and wind leases, reviewed fracking leases, litigated land disputes, and even labored for title solutions to what we call “heirs property” (land with multiple co-tenant owners).
Which Bar Recognizes Farm Law as a Specialty?
Yet, even with all these farm-specific issues and laws, there is no agriculture law specialty.
The North Carolina State Bar (the ‘mandatory bar’ licensing board) does not recognize agriculture law among its sanctioned specialties, and thus prohibits use of the very phrase “specialize in agriculture law” and all that term implies (though multiple bar-sanctioned specialties encompass various legal issues faced by farmers). However, the North Carolina Bar Association (NCBA, the ‘voluntary bar’) does have an agriculture subcommittee to its full Environment and Natural Resources Committee (to which I’ve attached myself). There’s also a robust national association, the American Agricultural Law Association (AALA), where lawyers who self-identify as working in agriculture as private practitioners, government lawyers, and academics (that’s me now) learn and network within their private practice or job portfolio working with farming and food.
How Do I Find a Farm Lawyer?
In short, finding a “farm lawyer” is a matter of finding a lawyer who self-labels as one concentrating their practice on serving the farming sector and publicly demonstrates their ability to service certain matters that farming involves.
How Do I Become a Farm Lawyer?
In my case, this meant making financial sacrifices to serve a large geographic area (most of North Carolina and parts of Virginia) necessary to encompass a critical mass of clients involved in farming, forestry, and other rural land uses, so that I could be exposed to a wide variety of issues in a short amount of time. I was motivated by a desire to do my part of working in a critical industry (i.e. food) and sustaining a concentration in the sector (without resorting to other types of practice like traffic tickets to keep the lights on), and to really wear it on my sleeve.
I’m often asked by younger lawyers how to go about developing such a concentration, and my only answer is to do it like I did if you can develop and afford to live along that path–because that’s the only path I know. As far as the need to serve a large geographic area, for years many people have said to me, ‘We need a lawyer like you, but in our area!’ My response: “I am in your area!”
A lawyer who takes such steps gets exposed to an array of common farming issues, but I, still, don’t know anyone who does this. A lawyer who practices in a small geographic area must handle all types of matters for all types of people and can never really develop the affinity to farming unless they decide to deliberately do so and hold themselves out as such.
Given the vicissitudes of managing a private practice alone or in a small firm (41% of lawyers are solo practitioners and 28% practice in firms of 2-4 lawyers according to the NCBA’s 2012 economic survey), a lawyer will decide what they like to do and what offers a sustainable wage (and weed out those types of matters that cause too much stress and risk). They will then design, develop, and implement a system that will allow them to deliver legal service efficiently while keeping their sanity, making the living they want, and staying out of trouble with the state bar. I have always imagined farming is much the same way.
Of course, the key challenge to developing such a concentration over a broad area is time, travel, and networking. Fortunately, I had previously run a non-profit that offered exposure and time to read. I acquired clients because I’d made the rounds, and a lot of people already knew my name. They knew that I wanted to work with farmers.
Normally, getting a client would go down like this: a farmer whom I admired as a key producer in the sustainable agriculture sector came to me for legal counsel, and I told him how honored I was. He usually said, ‘Well, you are the only lawyer I know.’ That was good enough for me because I got to learn from doing their legal work and get experience to do more of it.
The Gist
I have approached Part I of this topic autobiographically in an effort to illustrate that I have held a somewhat unique role given my career goals and lucky choices I’ve made along the way, perhaps to dissuade people from the idea of holding out for a lawyer concentrating their practice in farm law.
What to Expect in Part II
In Part II: Access to Legal Services, I’ll offer my opinions and tips on who and how farmers and landowners should approach lawyers seeking legal service in various matters related to land, farming, and forestry, particularly from the small farm perspective.
About Andrew
Andrew Branan is an Extension Assistant Professor with the Department of Agriculture and Resource Economics in the College of Agriculture and Life Sciences at North Carolina State University. The majority of his work is devoted to providing legal education and resources through North Carolina Cooperative Extension. His email is rabrana2@ncsu.edu.