I have learned from fellow Script Magazine columnists like Danny Manus that it is sometimes okay to be controversial. With that example in mind, today I am taking a somewhat controversial stance to tell you that you don't always need an entertainment lawyer! But of course, sometimes you really do. As always, it depends. This column attempts to clarify some of the questions about what a lawyer can and cannot do for you to help you determine when and how to seek one and what to expect from him or her.
What is a Lawyer?
Attorney at Law, Counselor, Lawyer, Solicitor, Esquire, Suit, Mouthpiece – there are lots of names for lawyers. (A lot bigger list of names that can't be printed here!) But who exactly do we mean when we use one of them?
My law license reads “Attorney and Counselor at Law” and that's a long-winded description of my job title. The root of the job comes from the word Attorney, which is best defined as “one who is legally empowered to act for another.” It is really an indicator of substitution, one to “stand in the place of” another and in reality that's the whole of it. An attorney at law cannot do anything for a person that that person couldn't have done on their own for themselves, in the right circumstances. It is just a specific instance of the broader term.
This is why you may have heard the term used in non-lawyerly aspects such as “power of attorney” or “attorney-in-fact.” In those other uses, the appointee selects someone to stand in their stead for a particular purpose, e.g. giving them the power to make medical decisions for them while they are incapacitated or incapable. When you add on the “at Law” bit you just broaden the scope of the power to act, but with that broadening there are a lot of restrictions levied on the actor for the protection of the assigner.
When granted the authority, a lawyer takes on the full power of attorney to represent the client in potentially any aspect of that person's dealings. Because of the all encompassing nature of this grant, the exercise is strictly regulated, by licensing rules by the state in which the attorney acts, and by rules of conduct, protecting the interests of the client, usually administered by the state bar and courts of jurisdiction. To quote a movie, “with great power comes great responsibility,” and the lawyers are held closely accountable because of it.
But a lawyer isn't only available to act for a client. Don't forget about the “Counselor” part. Just like any other profession, a knowledge base grows with exposure to the subject. Lawyers deal a lot with the legal and business aspects of their chosen focus. Entertainment lawyers learn a lot about the field by dealing with it every day and trying to best serve their clients' needs. That builds an experiential base that can come in quite handy to a client. Although most state bars restrict lawyers from every adopting the moniker “expert” in a particular field, experience goes a long way and can be quite helpful. No matter how experienced a filmmaker has been, they've likely only experienced their own films' journeys, and there's a wealth of other examples out there most writers, directors and producers are too busy to learn about. When you run into something you've never handled before, asking for advice is often the wisest choice before rushing into the fray.
Additionally, lawyers are trained to negotiate, mediate, and advocate. Each of these skills can be utilized to the best interests of the parties at the table. But, and here's a bit more of the controversial part, sometimes it might be best to keep the lawyers out of the room. (But not out of the discussion.)
When do I need a lawyer?
Of course this short essay cannot cover all that a lawyer does, nor can it touch on all of the possible areas where a lawyer's involvement might be contemplated. But we'll hit the highlights and hopefully set up a pattern that can be extrapolated to other areas. When do you need a lawyer?
When you're sued or want to sue – (Actually, you should have gotten one earlier.)
One of the “no brainer” times to use a lawyer is when a lawsuit is involved. Though it is usually allowed for a person to represent themselves in court (it's called pro se) there are so many esoteric and highly important niggly bits to a legal case that relying on the expertise of a trained litigator is usually the best course of action. Going to a lawyer ahead of time is highly encouraged. There you can consider courses of actions that might lead you into a lawsuit, and if you choose to forge ahead anyway, best prepare you for what comes. If you are considering suing, it is best to discuss what grounds you think you have compared to what ground you actually have. A lawyer can best be the conscience in sorting those differences out, calming the waters or preparing the battleship.
Litigators, those lawyers whose focus is on all the elements that go into fighting a court battle, are often a special breed of lawyer, staunch advocates and well versed in the archania that matters in a courtroom. I am not one of those, but I highly respect them and hire them when needed.
Often, in the entertainment industry, the route to the court room happens because of a disagreement arising from a contract, one with problems or one problematically structured, followed or misunderstood. (Or ignored.)
Do you need a lawyer to write a contract? - It depends.
A well-articulated and understood contract is best when it sets everyone's mind in exactly the same frame of reference regarding the commitments and expectations of the deal. Really good contracts discourage lawsuits. There's no point. It's right there in black and white. It's the badly formed or obtuse contracts that get litigated because someone thought it said one thing or insist it says another. Only a judge can clear it up – and usually no one is left fully happy with that kind of clarity.
If you understand the contract and don't feel like the deal is worth it as stated – then don't sign because THE DEAL ISN'T WORTH IT. It is never an ideal strategy for either side to try to hide their intentions in an agreement, since eventually those intentions will be found out and be accounted for. If you do it later, the accounting will be very costly.
Whether you can negotiate and construct a contract that is clear, concise and acceptable in full to both sides without a lawyer is your own call. Regardless of whether you have a lawyer draft a contract or not, it is never a bad idea to have a lawyer review a proposed contract to make sure you haven't overlooked an important detail and covered all the bases. As to whether you should have the lawyer do the actual negotiations of the contract...
Negotiations – It depends.
Here I might be controversial, but lawyers like to argue. It's in their nature (and duty) to advocate for the best interests of their client. If you have two lawyers in a room, both inclined to never give ground up against their client's interests, it might be a very long day indeed (paid for by both sides). Sometimes, if the lawyers are left outside the room, the cool heads of the parties might be able to make calmer, more considered modifications of their stance to keep the flow going in a genial manner that would not have been as organic. Sometimes just having a lawyer in the room makes one side go on the defensive. That might be a tactic that either side might try to take advantage of.
The one thing to always remember is that you don't have to sign right then. You should always have the opportunity to take a proposed agreement to be reviewed by someone who didn't hear the conversation, to judge it on what the document says, not what was discussed at the coffee pot but not written down. That way you get the cooler negotiations as well as the legal piece of mind of just what it is that is being agreed to. But it is always up to the client. Remember, lawyers are only “standing in your stead.” You can stand there yourself if you so desire or find it an advantage.
Mediation – It depends.
When two parties reach loggerheads, mediation is an attempt of reaching an agreement short of arbitration or a journey through the courts. A mediator is a disinterested third party who helps guide two sides of an argument into a mutual, common ground. A mediator can be a lawyer but doesn't have to be. But the mediator does have to be impartial, which means that neither side's lawyer will likely be able to serve that role. But a mediator often can be a way of distancing the heat of the disagreement and finding an agreeable place to find that agreement both sides thought might be there.
Advocate – It depends but is probably a good thing.
Sometimes you do need to have someone with a metaphorical “big stick” fighting for your cause. In the courtroom, the lawyer is that go-to person. Historically, the idea of lawyer evolved from the medieval knights in shining armor, fighting for the honor of others. (When jousting it was a literal big stick.) If you have other times where you need someone whose entire interest is in protecting your own, having a lawyer be that advocate is a good choice.
What can a lawyer NOT do?
Sometimes choosing a lawyer isn't the best option, like picking someone to do your laundry. And there are times when you can't have your lawyer do the task for you, no matter what.
In most states, a lawyer can't get you a job. Especially in the entertainment field there are licensing restrictions that protect people from being exploited. Agency licensing is one of those areas where only a state licensed agent can find you future employment. A manager or lawyer is not licensed to do that, often they are precluded from being licensed while holding that other position. The lawyer is in the same boat as a manager in that they can only help you sell already created work (e.g. a spec screenplay) but cannot secure future employment (e.g. get you cast on a TV show). For detail see my previous article on representation.
It is highly doubtful that a lawyer would be able to work for both you and others in the same deal due to conflict of interest issues. A conflict of interest for a lawyer entangles the fiduciary duty owed to every client of paramount advocacy of that client's interests above all other interests. If you have two clients, in essence, it is possible that their interests might conflict with one another in some way. If that happens, it becomes impossible for the lawyer to fulfill the duty owed to both clients. The only out would be for the lawyer to withdraw from representation, likely both clients, at least as far as the conflict extends. A waiver cannot solve a true conflict of interest. A waiver can only allow two knowing parties to use the same lawyer knowing a conflict might arise and agree that the lawyer has to be excused out of the deal if an actual conflict happens.
How to Find a Lawyer
By law a lawyer can only practice law within the jurisdiction their license allows them. Usually this is within a state's borders. A lawyer can only take a client that has some connection to that jurisdiction, either residence or business ties, usually. Lawyers are allowed to be licensed in multiple jurisdictions as long as they abide by all those jurisdictions' rules and requirements.
All lawyers are considered General Practitioners, meaning they are competent to handle any legal matter. That doesn't mean they are equally good in all legal matters. You can be a bad lawyer and still provide competent service. You can be a great lawyer and fail to do so. It is a minimum bar but the only level guaranteed. Most lawyers focus (can't say specialize, legally) in particular areas of practice.
Therefore whom to choose as a lawyer is a tricky question. Research before you need one. Find one who “gets you,” your project, your industry. Find one who is in your jurisdiction and who practices within the areas of law you need covered.
What's it going to cost?
You can guess my answer; it depends. There are no guidelines, set rates or payment grids to go by. Hourly rates, flat fees, retainers from which fees are extracted, retainers just to keep an attorney available when the call does come, overhead, commission – there are nearly as many ways to pay a lawyer as there are lawyers. There are at best, general tendencies, but every instance is different, sometimes tremendously so. (There's a reason why the attorney ads on TV have a disclaimer like, “Prior results do not guarantee a similar outcome.”) Even very similar situations might be different in just such ways as to cost considerably different to the respective clients.
You can get costs figured out ahead of time, at least enough to know whether to continue in a direction or not.
Hopefully this very long brief overview has shed a little light on the issues of bringing a lawyer on board your project. There are LOTS of areas I haven't covered. Maybe in a future article. It depends...
- More Legally Speaking, It Depends by Christopher Schiller
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- Legally Speaking, It Depends: Are Ideas Free to Steal?
- Legally Speaking, It Depends: Life Rights - Who, What, Why?
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