Bach to Business: Building a Sustainable Foundation that Will Survive the Test of Time

By Elizabeth A. Whitman

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.


[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.

© 2018 by Elizabeth A. Whitman

For more information, please contact Elizabeth A. Whitman at (301) 664-7713 or

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC or any of its attorneys.

Making “Best Efforts” to Play in Tune or to Comply with Real Estate Contract Covenants

It is difficult to play a violin in tune.  For one thing, unlike with a guitar, there are no frets or markings on a violin fingerboard to tell the violinist where to put his/her fingers.  The fingers must move up and down the fingerboard and from one string to another, always hitting the perfect spot.  Even a millimeter difference in finger placement can be the difference between an in-tune and out-of-tune note.

It is particularly difficult for a violinist to play in tune if the violin is out of tune. Yet, violin strings are prone to going out of tune. The type of string,[1] weather, bumps to the instrument, and even playing the violin normally can cause the strings to go out of tune.

If it were not difficult enough, what being “in tune” means can change with the type of music being played.   Violins are not “tempered”[2] instruments; a D-flat and C-sharp are the same note on a piano but not so on the violin. The skilled violinist must be able to adjust his/her ear between tempered tuning when playing with a tempered instrument, such as a piano, and untempered tuning when playing with a string quartet, for instance.

As a result, even though it is of critical importance that a violinist play in tune, what sometimes, that doesn’t happen under the best of circumstances.   Likewise, in a real estate transaction, most parties work hard to accomplish the transaction goals, but sometimes that doesn’t happen either.

Also, like the violinist, who must play with different intonation in different environments, sometimes participants to real estate transactions are asked to modify their efforts to reach a goal through contract terms.  Various real estate contracts terms may require things such as “reasonable efforts,” “commercially reasonable efforts,” or “best efforts,” which may be as amorphous to the real estate party as tempered and untempered tuning seem to the uninitiated musician.

Terms such as “reasonable efforts,” “commercially reasonable efforts,” and “best efforts” are used in a contract to show the level of effort a party is obligated to use to pursue a covenant or promise that party has made.  For example, let’s use the covenant “I will play the violin in tune.”  If that isn’t qualified, then I have an absolute obligation to play the violin in tune no matter what happens. If I do not succeed in playing the violin in tune, I can be considered to have breached my covenant. That type of covenant frequently isn’t attractive to a party making the covenant, so the party will ask for the covenant to specify a specific level of effort required.

If the covenant is changed to say, “I will make best efforts to play the violin in tune,” then I might be required to keep my violin in good shape, practice many hours a day, take any lessons necessary from the best available teacher, and purchase any equipment necessary, regardless of the time commitment or cost or adverse consequences to my job, family, or health.  However, as long as I make that high level of effort, if I still do not succeed in playing the violin in tune, I will not have breached my covenant to “make best efforts to play the violin in tune.”

However, maybe I don’t want to have to give my all to playing the violin in tune.  In that case, I might ask that the covenant read “I will make reasonable efforts to play the violin in tune,” which doesn’t require as much effort be expended as best efforts.  “Reasonable efforts” still would require that I keep my violin in good shape, practice every day, and possibly, take lessons and purchase some equipment, but it would not require that I give up my job and family life and go bankrupt in order to play the violin in tune.

“Commercially reasonable efforts” is a newer term.  If I say, “I will use commercially reasonable efforts to play the violin in tune,” then most attorneys would say that adds an element of economic reasonableness and business practices given the circumstances into the mix.  Therefore, if, for instance, the typical violinist practiced two hours a day and had one lesson per week and used only an iPhone app as a tuner, rather than a fancy standalone one, I should be considered to be complying with my covenant to use “commercially reasonable efforts” if I do what the typical violinist would do.

So, just as a D-flat and a C-sharp aren’t the same note on a violin, “best efforts,” “reasonable efforts,” “commercially reasonable efforts,” and silence as to efforts don’t mean the same thing in contract covenants.  Just as violinists must adjust their tuning to the circumstances, contracting parties should the level of effort required to comply with covenants be adjusted in contracts to the circumstances involved.


[1]   Originally, violin strings were made of sheep gut, and violins also were tuned to a lower (flatter) A than they currently are. As tuning changed and increased tension were placed on the strings and technical demands on violinists increased, violinists started wrapping the gut strings in metal.  Eventually, the smallest string, the e string, (which has to be quite thin to produce the required pitch and therefore, tended to break when it was made of sheep gut), transitioned to an all-metal e-string.  Although there were experiments with all metal and metal core strings, metal-wrapped gut strings remained the gold standard until the 1990’s when synthetic core strings were accepted as producing a sound comparable to gut strings with more reliability. As an early adopter of technological advancements, I am proud to say that I started using synthetic core strings in the early 1980’s.

[2]  Violin tuning is based upon acoustical physics, such that the length of the string is changed so that it produces certain wave lengths when played. In untempered tuning, a C in the key of C major might not be the same as a C in the key of D-flat major. This untempered tuning, proved to be a challenge for keyboard players, because they had to retune their entire instruments in order to play in different keys. Therefore, in the 18th century, tempered tuning, where the sizes of intervals between notes is modified slightly so that it sounds close to in tune in every key was adopted for keyboard instruments.  The method, famously taken advantage of by Johann Sebastian Bach’s Well-Tempered Clavier, now is commonly used by violinists when playing with keyboard instruments.  However, an advanced violinist still will use untempered tuning when playing unaccompanied pieces or when playing chamber music with other string players.

For more information, please contact Elizabeth A. Whitman at (301) 664-7710 or

© 2017 by Elizabeth A. Whitman

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC or any of its attorneys.