Agreement Between Lawyer and Media Representatives
Rule 1.8(c) does not apply to an agreement between a lawyer representing a client and representatives of the media who are interested in obtaining the lawyer’s story.
But Rule 1.7(b)(4) does apply in such circumstances, and the lawyer must be vigilant to determine those circumstances where an agreement with media representatives gives the lawyer a personal interest in the matter that may be at odds with the lawyer’s obligation to the client.
Obtaining valid consent of the client under Rule 1.7(c) to a conflict arising in such circumstances is difficult because it requires the client to anticipate future aspects of the representation to assess their potential impact on the lawyer’s ability to represent the client. In such circumstances either the client should have independent counsel or the lawyer should consult independent counsel to assure that the lawyer will obtain an objective view of whether the representation can proceed with consent.
The inquirer is a lawyer who represents a pro bono client in litigation. Under their agreement, the client pays nothing for the legal representation and is not required to reimburse the lawyer for expenses of the litigation. The litigation had drawn the interest of the press, and the inquirer finds it necessary to speak to media representatives in the course of the representation. The inquirer has been approached by reporters for newspapers and magazines who are contemplating writing books, and “perhaps” producing motion pictures, about the litigation. The inquirer states that the primary interest of these media representatives is in the lawyers who are conducting the litigation rather than the client. The media representatives would like to discuss an arrangement under which the inquirer would receive compensation from them for the inquirer’s cooperation and the rights to the inquirer’s story; the client, while not the primary focus of the media’s interest, would also receive compensation “for his life rights.” The inquirer would not divulge any confidential information protected by Rule 1.6 (that is to say, the inquirer will disclose neither “confidences” nor “secrets” under that Rule) about the client without the client’s consent. The inquirer asks whether the arrangement sought by the media representatives would violate Rule 1.8(c), which provides:
Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
In particular, the inquirer notes, this Rule expressly applies only to an agreement giving the lawyer literary or media rights of the client while, by contrast, in the situation at hand the media, not the lawyer, seek the client’s and the lawyer’s literary and media rights.
We conclude that (1) Rule 1.8(c) does not apply to the facts as presented but (2) Rule 1.7(b)(4) does, and the inquirer cannot proceed to negotiate with the media representatives without full disclosure to the client and an appropriate waiver under Rule 1.7(c), if such a waiver is possible.1. Rule 1.8(c).
This Rule, quoted above, deals with a specific and defined conflict of interest: it arises when a lawyer acquires literary or media rights concerning the lawyer’s representation of a client where that representation is ongoing at the time of the acquisition and where the lawyer generally has the intention to exercise those rights later on, for example by writing a book about the matter. The existence of those media rights in the lawyer’s hands may influence choices made by the lawyer in the representation because the media rights may be worth more if some steps are taken by the lawyer rather than others. If, for example, the lawyer had acquired the right to popularize the client’s story, acceptance of an early settlement might diminish the value of that right, so that the lawyer would then have a personal financial interest in maximizing the value of the media rights that might negatively influence the lawyer’s ability to make the best decisions for the client.
The policy served by the Rule is obvious. A lawyer holding media rights to the story of the very case in which he is involved has an interest in seeing the case sensationalized. The lawyer also has the means of sensationalizing it, by his choices of tactics and by the recommendations he makes to the client (not to plead guilty to a lesser charge, for example). Thus the risk that the lawyer will succumb to these temptations and actually provide less than vigorous representation is not trivial.
1 Hazard and Hodes, The Law of Lawyering, §12.10 at 12-28 (Third Edition, 2004 Supplement). The Rule therefore forbids the acquisition of such rights by the lawyer while the representation is ongoing and the lawyer’s decisions for the client still may be so influenced, and there is no provision therein for waiver by the client.
2. Would the sale of the inquirer’s story that is the subject of the inquiry be barred by Rule 1.8(c)?
Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client . . . by which he acquires an interest in publication rights with respect to the subject matter of his employment . . .
This provision thus simply barred the lawyer from acquiring literary rights from the client. The modified version in the present Rule 1.8(c) maintains the focus on barring the acquisition by a lawyer of literary rights, but broadens this bar so that it is not just the client, but anyone, from whom the lawyer is barred from acquiring such rights.
When the D.C. Bar Board of Governors recommended adoption of the Rules of Professional Conduct, it observed only that the new Rule 1.8(c) was “substantially similar” to the Code provision, noting only that the term “publication” rights had been changed to “literary or media” rights, “a more generally inclusive term.” Proposed Rules of Professional Conduct and Related Comments at 75 (November 19, 1986) (“The Jordan Committee Report”).2 The Board of Governors did not mention that the text had also been changed to bar the acquisition of media rights by the lawyer not only from the client, but from others (for example, a client’s spouse or relative). But, as noted, with these changes the focus of the prohibition remained on the lawyer acquiring media rights that could later be sold to media representatives.
The transaction contemplated by the inquirer would involve a sale of media rights by the inquirer to media representatives, not the acquisition by the inquirer of someone else’s rights, and specifically, not the unconsented use by the inquirer of confidences or secrets of the inquirer’s client.3 This difference takes the inquirer’s proposed transaction outside of the language of Rule 1.8(c). Equally as important, this factual difference is significant in that in some circumstances such a distinction diminishes the potential for evil that the Rule was designed to address. In a situation of the type prohibited by the Rule, the lawyer obtains media rights, say from the client, and holds those rights while continuing to conduct the representation, while intending to make a media deal involving those rights at some later time. Thus the lawyer acquires and holds an asset (the media rights) whose value may fluctuate as events occur in the representation. This gives the lawyer a financial interest in handling the representation so as to maximize the later value of the media rights, but that course might well not coincide with the course that is best for the client. As succinctly stated in comment  to Rule 1.8, “Measures that might otherwise be taken in the representation of the client may detract from the publication value of an account of the representation.” This interest is so likely to conflict with the lawyer’s interest in procuring the best result for the client that the prohibition of Rule 1.8(c) is absolute; as we have noted, D.C. Rule 1.8(c) does not allow for the possibility of waiver in any circumstances.
In the situation posed by the inquirer, by contrast, the lawyer does not seek to acquire literary rights that may be the subject of a later arrangement by the lawyer with a media representative, but instead seeks to make an arrangement now with such a representative, based on the lawyer’s story. As we have suggested above, there are many such situations that could create serious conflicts of interest, depending on the particular circumstances. But there are also circumstances that would not necessarily raise any such conflict. For example, a lawyer might give an “account” of the matter by writing an article or delivering a lecture for a fee that was fixed and could not vary with later developments in the representation. In such a situation the lawyer’s later activity in the case would not subsequently be influenced by any financial interest in what that fee would be, as it would be fixed and unchangeable by later developments.
Indeed there are at least some familiar transactions that are similar to the inquirer’s in concept but do not appear ever to have been thought to involve a violation of Rule 1.8(c). The most prominent example would be a situation in which a lawyer writes an article for a publication about the legal profession, or makes a speech or appears at a seminar, where the subject matter includes giving an “account” of current and uncompleted client matters. Such events are extremely common. Some such instances have raised other issues such as the possibility that they would constitute ex parte communications with a court (D.C. Bar Legal Ethics Committee Opinion No. 5, April 23, 1975) or inappropriate advertising (cf. Opinion No. 41, November 22, 1977), but they have never been considered to constitute the acquisition of literary rights so as to trigger Rule 1.8(c) or its predecessor, so far as we are aware. These types of transactions do not fall under the language of Rule 1.8(c), and especially since Rule 1.7 is present and would apply to any such arrangement that constituted a conflict of interest, there is no reason to strain the language of Rule 1.8(c) to cover them.
That conclusion is all the more justified because there are other benefits that may flow from some kinds of public attention to “accounts” of ongoing legal matters – as long as that can be done without violating Rule 1.7 (a subject to which we turn below). In addition to education of the bar, as suggested in the previous examples, there can also be benefit to clients whose causes may be assisted by better public understanding, and to the public at large from better understanding of legal issues that may affect it. Thus there would, in at least some circumstances, be good policy grounds to avoid overextension of the reach of Rule 1.8(c).3. The application of Rule 1.7(b)(4).
The situation described by the inquirer raises a serious issue under D.C. Rule 1.7(b)(4). Rule 1.7(b)(4) generally provides that a lawyer may not represent a client with respect to a matter where:
the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.
This subparagraph clearly covers the very wide range of interests or responsibilities that a lawyer may have that do not involve representation of a different client (conflicts created by differing interests of multiple clients are handled by subparagraphs (b)(1), (2), and (3)) that will or reasonably may affect the lawyer’s ability to represent the client. Obvious examples would be such matters as personal investments of a lawyer in company X that might influence the lawyer’s ability to pursue a claim against X on behalf of a client; a friendship with an officer of company X that might reasonably be thought to affect the lawyer’s ability to represent a client in pursuing a large claim against X; or the lawyer’s guardianship of a person who appears to have played a role in activity that the client wants to challenge. The broadly worded scope of subparagraph (b)(4) shows that any kind of interest or obligation of the lawyer can trigger the applicability of the subparagraph if the presence of that interest could reasonably adversely affect the lawyer’s ability to represent a client in a matter.
The inquirer’s situation clearly creates a potential for a conflict under Rule 1.7(b)(4). The inquirer proposes to make an agreement with representatives who cover the litigation the lawyer is engaged in for various media companies and who are considering writing books or possibly producing a motion picture about that litigation. The situation as presented in the inquiry sounds as though the media representatives’ plans are not fixed; for example it is not clear whether they will seek only to write a book or whether they will attempt to produce a motion picture. Thus it sounds as though whatever financial arrangement the media representative would make would have some contingent features, which would depend upon whether, say, merely a book, or perhaps a movie, may be made out of the story of the litigation. Further, the inquirer states that while the primary focus of the media representatives is on the litigation and the lawyer, the lawyer’s client “would also receive compensation for his life rights.” No confidential information would be used without the client’s consent.
We first observe that even if the inquirer’s action would not violate Rule 1.8(c) because the lawyer is not seeking to acquire the literary or media rights of another, nonetheless something similar (at least) to the concerns underlying Rule 1.8(c) may well be present in some situations. In the situation posed by the inquirer, it seems possible that because the media’s plans as to how to present the story are not fixed, the inquirer might well face a conflict between, on the one hand, obligations to do the best possible thing for the client, and, on the other, a personal interest in having the case be the kind of story that would enhance its interest to the media and the public. Such a situation would present a serious conflict of interest, in our view. Indeed, any agreement made by a lawyer with media representatives presents a conflict of interest if, as a practical matter, its value to the lawyer might fluctuate depending on later events in a related matter in which the lawyer is representing a client.
By contrast, a transaction with media representatives in which any financial compensation was immediately fixed and would not change regardless of what later happened in the case would be less objectionable because the inquirer’s later steps in the case would not as obviously be influenced by the possibility that some steps might tend to increase the value of the media contract available. There still could be features requiring attention under Rule 1.7(b)(4). For example, the publicity value of the agreement might still fluctuate in a meaningful way to the lawyer, depending on certain choices that are made in the course of the litigation; or the negotiations over the terms of any agreement might take place during a period in which the lawyer’s actions in the litigation might well be influenced by the negotiations themselves. The inquirer should also be extremely circumspect in describing, in any negotiations, those later events in the case that the inquirer expects to occur and should not make any representations about the future of the case where there is any doubt at all that such eventualities might occur.
The question of how, and even whether, a client may consent to the conflict under Rule 1.7(c) is highly important. Valid consent may be obtained only after consultation with the client, which the Rules define as “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.” D.C. Rules, Terminology . In situations involved here, the question is whether the lawyer’s judgment on how to conduct the representation for the client might be adversely affected by the lawyer’s pecuniary or publicity interest. There are two impediments to a clear appreciation by the client of what is at stake – first, future developments in the representation involve possibilities that may well not be presently understood, so that an appreciation of them currently might be difficult or impossible. Second, questions of the impact on the lawyer’s judgment in carrying out the representation involve issues peculiarly within the knowledge of lawyers but nor of clients.
As to the first of these problems, our Opinion No. 309 comprehensively examines the question of the degree to which consent can be valid where it is given in advance of events that affect the scope of the conflict. We there concluded that a valid advance consent can be given only where full consultation as described in the Rules can be had, and a client has the ability to give fully informed consent, in advance. We note that the situation presented here – where a conflict that arises under Rule 1.7(b)(4) is sought to be waived in advance – was not specifically treated in that opinion, but it is clear that a large part of obtaining a valid waiver of any conflict caused by the lawyer’s negotiation of a contract with media representatives would involve the explanation to the client in detail of the kinds of choices that the lawyer is put to in litigation and the possible impacts on those choices that are the result of having the media contract. This is likely to be more difficult than explaining the usual conflict caused by potential loyalty to another client that arises under Rule 1.7(b)(2). Loyalty, and the ability to act despite somewhat divided loyalties, is a relatively simple concept to understand. But the impact of the lawyer’s personal interests on the lawyer’s ability to make tactical and strategic decisions for a client, which is presented in a conflict arising under Rule 1.7(b)(4), requires the lawyer to explain, and the client to understand, the significance to the client of influences on the lawyer’s handling of specific issues. In these circumstances, it would be highly advisable for the client to have the benefit of independent counsel to offer advice on the scope of any adverse impact on the lawyer’s ability to provide adequate representation despite whatever influence the media arrangement may have. If that is for some reason not possible, the lawyer should likely obtain independent legal advice to provide the most objective view possible of the lawyer’s ability to act adequately for the client in the circumstances.
Actually the problems involved in this situation are more common than might be supposed. Although it might be rare to encounter a media arrangement in which a lawyer is paid money for participating in a story about the lawyer’s ongoing representation, many lawyers know that working on particular matters might draw attention and publicity that could be valuable to them. Moreover, it is quite possible that, without having had any contact with the media concerning a particular representation, a lawyer might know or at least anticipate attention from the media concerning a matter on which the lawyer is working. It may also be true that such media attention is more likely if one issue predominates (say a widely anticipated one arising from a newly enacted statute) than another (say an older issue that may render the newer one irrelevant). A lawyer should always be alive to the possibility of potential influence on the lawyer’s judgment and ability to pursue the best course for the lawyer’s client. We do not mean to suggest that such instances regularly, or even often, create conflicts of interest. Our purpose is to show that there is a wide range of issues involving actual or potential media attention that could raise questions under Rule 1.7(b)(4) but do not raise issues under Rule 1.8(c).
4. The “principle of priority” under Scope Comment .
Scope Comment  enunciates an important rule of interpretation. It states, in its entirety:
In interpreting these Rules, the specific shall control the general in the sense that any rule that specifically addresses conduct shall control the disposition of matters and the outcome of such matters shall not turn upon the application of a more general rule that arguably also applies to the conduct in question. In a number of instances, there are specific rules that address specific types of conduct. The rule of interpretation expressed here is meant to make it clear that the general rule does not supplant, amend, enlarge, or extend the specific rule. So, for instance, the general terms of Rule 1.3 are not intended to govern conflicts of interest, which are particularly discussed in Rules 1.7, 1.8, and 1.9. Thus, conduct that is proper under the specific conflicts rules is not improper under the more general rule of Rule 1.3. Except where the principle of priority stated here is applicable, however, compliance with one rule does not generally excuse compliance with other rules. Accordingly, once a lawyer has analyzed the ethical considerations under a given rule, the lawyer must generally extend the analysis to ensure compliance with all other applicable rules.Scope Comment  makes clear that where conduct is proper, either explicitly or implicitly, under a specific rule dealing with that type of conduct, a more general rule should not be used to render that conduct improper. Thus, for example, if lawyer A moves from partnership in firm X to partnership in firm Y, and firm Y is adverse to firm X on a heated matter, which, however, lawyer A has had nothing to do with and has learned nothing of, Rule 1.10(b) provides, as a result of the balance struck in that Rule, that firm Y does not have a conflict of interest despite the fact that A used to be a partner in firm X. Scope Comment  provides that no general rule, such as Rule 1.3 (which requires that a lawyer represent a client “zealously and diligently”), should be cited to upset this balance. The reason is that the conflict of interest rules exist, ultimately, to assure that no such conflict should impede a lawyer from acting “zealously and diligently” for a client. Thus, when Rule 1.10(b) was written, it took into account, and balanced, the considerations behind Rule 1.3. Citing Rule 1.3 in a particular case to invalidate some activity permissible under Rule 1.10(b) would upset that balance written into the Rule and disserve the other considerations.4
None of this pattern is present in considering Rules 1.8(c) and 1.7(b)(4). First, this is a case where the inquirer’s situation does not fall precisely under the terms of the specific Rule – 1.8(c). There is no indication at all, from the purpose, terms, or history of Rule 1.8(c), that it struck any kind of a balance or was in any other way intended to exonerate behavior that was similar to, but fell outside of, the defined scope of behavior that it covers. Instead, Rule 1.8 simply mandates particular treatment of a specific fact situation and says nothing, explicitly or implicitly, about other situations that might be similar. This is in keeping with the general character of Rule 1.8, which “deal[s] with a series of specific situations in which the lawyer’s own interests – often her financial interests – may conflict with the interests of a client. Many of the conflicts of interest that are per se prohibited are catalogued in this rule.” 1 Hazard & Hodes, The Law of Lawyering, §10.4 at p. 10-14. (3d ed 2004 Supp.)5
Some situations are so fraught with danger of serious impropriety . . . that a per se rule of disqualification is imposed – a prophylactic ban that sometimes is not waivable, even by a sophisticated and well-counseled client. In these situations, (some of which are catalogued in Rule 1.8) the public interest in maintaining public confidence in the legal system outweighs the interests of individual lawyers and clients in freely contracting with each other.Id., §10.4, at 10-12. Thus, as we have concluded, Rule 1.8(c) creates a special class of per se rules covering situations as to which the drafters concluded that the level of potential impropriety and adverse impact on the lawyer’s ability to represent the client properly is so great that such a specific rule is warranted.6 But that alone does not mean that where a situation is presented that does not fall under the strict Rule 1.8(c) formula it should, by virtue of Scope Comment , escape any consideration under Rule 1.7(b)(4). This situation accordingly falls under the more general doctrine expressed in that comment: “Except where the principle of priority stated here is applicable, however, compliance with one rule does not generally excuse compliance with other rules.”