By Andrew Branan, Extension Assistant Professor, NC State University

Editor’s note: this blog post is the second installment of a two-part series exploring the ins and outs of agriculture and farm law. If you missed Andrew’s first article, read it here.

CFSA originally asked me to discuss whether or not farm lawyers exist. In the first installment of this series, In Search of the Farm Lawyer, Part I: The Myth, we explored that very question. 

The short of it is not necessarily. 

So what’s a farmer to do when they need legal help?

Below are my opinions and tips on who and how farmers/landowners should approach lawyers seeking legal service in various matters related to land, farming, and forestry (particularly from the small farm perspective).

  • First, a lawyer’s job is primarily that of a problem solver. The bigger the problem (e.g. property or income at risk of loss), the more the solution will cost. In negotiations, the lawyer’s job is to get your side to the middle with as little risk as possible. Don’t expect your lawyer to take advantage of the “other guy” on your behalf. This is a dispute, and possible litigation, waiting to happen.
  • Always ask any lawyer that you call whether they have handled such a farm-specific matter before, even if they advertise that service on their website. I once had a peer ask me to guide them in a Perishable Agricultural Commodities Act (PACA) case, and when I checked his website, he was already advertising PACA cases in his offered legal services.
    • It’s OK if the lawyer has not previously handled the type issue you’re coming to them with. Especially if they offer to do some initial research on their own dime into what’s involved and then decide if taking your issue on makes sense for their ability.
    • Don’t expect them to apply their initial research to your issue (this you have to pay for).
    • Sometimes, if you hire that lawyer, you have to accept that the matter you’re coming to them with is so unique that you will be paying for some of the learning curve as their knowledge grows.
  • On that note, don’t assume that all lawyers offer a free initial consultation. I faced this often and normally refused, as, at least in my practice, the initial consultation was essentially a counseling session on which I drew heavily upon my experience to frame the matter at hand.Free consultations are generally offered in matters appropriate to contingency fee arrangements, whereby the lawyer is trying to determine whether they will invest and risk their own resources in the case for a potentially high fee award.
  • Always ask for a written retainer agreement outlining the scope of service and the fee basis (e.g. hourly, flat fee or contingency). Most routine transactions or documents – such as land transactions – have flat fees somewhat determined by market forces. If the matter requires interaction with third parties, such as a government agency, or other business negotiations, expect to pay an hourly fee. 

    It’s perfectly reasonable to ask for an estimate, but understand that, given the unpredictability in disputed matters, an estimate is just that: an estimate.

  • If you have a real estate transaction, go to a firm that has the infrastructure to effectively manage the process. Most small town lawyers will have extensive experience and perspective dealing with land disputes, such as boundary issues quiet title actions, and heirs’ property. Make sure the lawyer has a support staffer that does most of the legwork.
  • When dealing with a land or contract dispute, I’d recommend working with a lawyer in the judicial district where the land or matter is located. The NC court system is divided into 50 districts, where elected judges rotate to hear matters in various counties within the district. Though judges are considered to be impartial, they can nonetheless rule on issues in discernable patterns of which local lawyers will be aware of (plus, North Carolina state judges are elected officials and may express certain values on the campaign trail).  

    Nearly 90% of filed court cases settle, often in mandatory mediation. For those that slip through, calendaring to secure a judge in a particular county who may be sympathetic to your fact ledger can be an important litigation strategy. Further, lawyers tend to know other lawyers in the district, which can be useful in effectively dealing with certain issues (to reduce costs) and otherwise finding a solution to the problem before filing a court case.

  • If you have a property tax question, particularly with Present Use Value (PUV), before seeking a lawyer, go speak with the county tax office person who deals with that program. It is good to find out how your particular county deals with farming and forestry scenarios, most deferring to the PUV program guide.  

    When asking any lawyer to execute a land disposition for you, if the land is in PUV, make sure they understand what that means and how to handle it.

  • For lease and other contracts associated with farming, I recommend doing your own research online. Leases and contracts are simply written expressions of an agreement with boiler plate thrown in (which can be important in a pinch). Anymore, there are an array of examples of nearly all types of contracts online. As far as any unusual takes on a common lease or contract go, the first thing most lawyers will do is search Google for keywords; it’s what I did.  
    • There are numerous examples of leases and contracts out there that can give you the basics of their structure. Once you find one, you can customize it according to your specific ideas on what the lease or other agreement should look like.
    • I adapted many found from land-grant extension services in the Midwest, California, and the Northeast. I intend in my new appointment with Cooperative Extension to remedy the dearth we have in North Carolina!
    • In short, go to a lawyer and educate them on what you want, then allow their basic legal knowledge on contracts and potential disputes guide you on any changes. Each lawyer may want to use their own template (I developed mine over the years), into which your ideas can fit but is organized according to their experience.
  • As far as organizing your operation as a distinct business entity (e.g. an LLC), most lawyers can help you with the formation (it isn’t specific to farming, and you can even handle the Secretary of State filing yourself – North Carolina, South Carolina).
    • The limited liability company is, to me, the most modern form, and was my choice 95% of the time (mostly except for non-profit entities).
    • If you are forming a new business with another person – or adding a partner to your operation – you will need a more formalized operating agreement (legal governing document), which any business lawyer can do. You will be the one supplying the essence of the agreement (ownership, buyout terms, and valuations, etc.) with your partner(s). The lawyer will help to limit it to what is feasibly enforceable.
  • For matters such as immigration, employee relations, social security and disability eligibility, it’s very easy to search for these practitioners online, as most devote their entire practices to these topics (and have developed their contacts within the administrative agencies necessary to efficiently resolving certain issues).  

There are many more tips and such that have not yet occurred to me at present time, but as my work with NC State and Cooperative Extension continues, access to legal services for small farms is one I will continue to study and develop resources to address.

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.