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Negotiations for Literary or Media Rights

Lawyers taking on high-profile cases are often in privileged positions – they not only may earn a nice fee for representing a famous person, but they earn a whole lot of free advertising when their faces appear on television or in newspaper photos. The First Amendment and associated freedoms of the press dictate that the government and/or the ethical rules cannot prevent the media from covering cases or from giving air time to attorneys. (Although, courts can put some limits on media coverage of a trial). See Hamilton v. Municipal Court for Berkeley-Albany Judicial District of Alameda County, 270 Cal. App. 2d 797 (1969). Nonetheless, the ethical rules and courts still can govern the lawyers’ own conduct when dealing with the media. 

The Model Rules hold that before the end of a case or before the conclusion of representation, a lawyer must not make or negotiate for an agreement giving the lawyer literary or media rights to a portrayal or account based on information related to the representation. See Rule 1.8. The biggest concern is that a lawyer will divulge client confidences in return for profit. It is of special concern that a lawyer does not divulge client confidences while the client is in the middle of a case. 

EXAMPLE: Imagine if O.J.Simpson's lawyers were paid to speak about the defense strategy in the Simpson murder trial. Media companies would have compensated the lawyers handily for inside information, but the representation would surely have been compromised had defense secrets been divulged. The prosecution would have been keyed in on defense strategy, giving it an advantage. 

In states such as California, where the media is an incredibly powerful force, there exist special rules that limit media contact with lawyers working on a case to ensure clients are protected. In California, if a trial judge in a criminal case finds out that the defendant has made an agreement with defense counsel to allow for defense counsel to tell its story to the media, then the judge is required to ensure that the defendant understands that a conflict in the representation might develop. If the defendant fully understands the consequences of the lawyer’s negotiations for media or literary rights, then the judge may waive the conflict and allow the lawyer to continue his representation.