Can a lawyer accept payment from the media for the rights to the lawyer's own story about an ongoing case?

Plain-English summary

Opinion 334 (published January 2006) addresses a lawyer representing a pro bono client in litigation that has drawn press interest. Reporters contemplating books, and "perhaps" motion pictures, want to pay the lawyer for cooperation and the rights to the lawyer's story; the client, who is not the media's primary focus, would also be compensated for his "life rights." The lawyer asked whether this would violate Rule 1.8(c), which provides that, before the conclusion of a representation, "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."

The Committee concludes that Rule 1.8(c) does not apply on these facts. By its terms, Rule 1.8(c) addresses the lawyer acquiring literary or media rights concerning the representation; here, the media seek the lawyer's and the client's rights. Applying Scope Comment [5], the opinion explains that Rule 1.8's specific provisions dictate how Rule 1.7(b)(4) applies to particular situations, and where a Rule 1.8 provision affirmatively permits or carves out conduct, a more general rule should not override that balance. But nothing in Rule 1.8(c) immunizes conduct outside the particular circumstances it covers.

Because Rule 1.8(c) does not cover this arrangement, the general personal-interest conflict rule, Rule 1.7(b)(4), governs. That rule applies where the lawyer's professional judgment may be adversely affected by the lawyer's own financial, business, property, or personal interests. A media deal can create exactly that risk: a lawyer paid for a sensational story has an interest in seeing the case sensationalized and the means to do so through tactical choices and recommendations. The opinion concludes the lawyer must be vigilant about when such an agreement creates a personal interest at odds with the client's interests, and cannot negotiate with the media without full disclosure to the client and a valid Rule 1.7(c) waiver, if one is possible. Obtaining a valid waiver is difficult, because it requires the client to anticipate future aspects of the representation and assess their effect on the lawyer's judgment. For that reason, the opinion concludes that either the client should have independent counsel, or the lawyer should consult independent counsel, to ensure an objective view of whether the representation can proceed with consent.

In practice

Under the D.C. rules as they stood at the time of the opinion, Rule 1.8(c) does not bar a lawyer from an arrangement in which the media seek the rights to the lawyer's story about an ongoing case, because that rule addresses the lawyer acquiring such rights. The opinion concludes that Rule 1.7(b)(4) still applies, because the deal can give the lawyer a personal financial interest that conflicts with the client's interests, and that the lawyer may not negotiate without full disclosure and a valid Rule 1.7(c) waiver.

The opinion concludes that a valid waiver is hard to obtain because the client must anticipate future effects on the representation, and that the client should have independent counsel, or the lawyer should consult independent counsel, before proceeding. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Does Rule 1.8(c) bar a lawyer from selling the rights to his story about a current case?

A: The opinion concludes Rule 1.8(c) does not apply where the media seek the lawyer's (and the client's) story, because that rule addresses the lawyer acquiring literary or media rights based on the representation.

Q: If Rule 1.8(c) does not apply, is the deal automatically permitted?

A: No. The opinion concludes Rule 1.7(b)(4) governs, because the media deal can give the lawyer a personal financial interest that may conflict with the duty to the client.

Q: Can the client just consent to the arrangement?

A: The opinion concludes consent is required but a valid Rule 1.7(c) waiver is difficult, because the client must anticipate how the deal could affect the representation; the lawyer cannot proceed without full disclosure and a valid waiver.

Q: What does the opinion say about getting independent counsel?

A: The opinion concludes that, given the difficulty of a valid waiver, either the client should have independent counsel or the lawyer should consult independent counsel to obtain an objective view of whether the representation can proceed with consent.

Background and rules framework

The opinion interprets D.C. Rule 1.8(c) (a lawyer may not, before the conclusion of a representation, make or negotiate an agreement giving the lawyer literary or media rights based on the representation) and Rule 1.7(b)(4) (the lawyer's personal-interest conflicts), with the waiver mechanism of Rule 1.7(c). It applies Scope Comment [5] on how specific rules in Rule 1.8 interact with the general conflicts rule, and relies on prior Opinion 292 (1999).

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.8(c) / Model Rule 1.8(d) (literary or media rights based on the representation)
• D.C. RPC 1.7(b)(4), 1.7(c) / Model Rule 1.7 (personal-interest conflicts; client consent)
• D.C. Rules, Scope Comment [5] (specific versus general rules)

Other opinions cited:

• D.C. Ethics Op. 292 (1999) (thrust-upon conflicts under Rule 1.7(d))

See also

• DC Ethics Op. 365: Government-Lawyer Furlough Conflict
• NJ ACPE Op. 743: Imputing Personal-Interest Conflicts
• ISBA Ethics Op. 870: Lawyer's Financial Interest in a Client

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-334