Can a lawyer sign a contract for the book or movie rights to a client's case while still representing the client?

Plain-English summary

A law firm represented a defendant in a widely publicized criminal trial, continued to represent him on appeal, and was acting as consultant in a related civil suit arising from the same facts. The firm asked whether it could sign a contract for the production rights to the story of the client's trial while the representation continued. The committee concluded it would be improper to enter such a contract, with the client or a third party, until all aspects of the matter, including the civil action, were concluded.

For contracts with the client, the committee pointed to DR 5-104(B), which by its terms bars a lawyer, before the conclusion of all aspects of the matter, from acquiring an interest in publication rights to the subject of the employment. For contracts with a third party such as a publisher or producer, the committee acknowledged DR 5-104(B) is not specifically directed at third-party deals but concluded such a contract during the representation would still be improper under Canon 5: EC 5-4 warns that a lawyer who gains an interest in publication rights may be tempted to subordinate the client's interests to anticipated pecuniary gain, and DR 5-101(A) bars employment, without consent after full disclosure, where the lawyer's own interests may affect professional judgment. The committee cited the Hearst decision as construing the policy of DR 5-104(B) to reach third-party contracts and expressly disagreed with the contrary reading in Wolfram's treatise.

The committee found no Code provision specifically governing publication contracts made after the representation ends, and recognized such publications may serve the client's and the public's interest. It cautioned, however, that any such contract risks violating DR 4-101(B) if it reveals client confidences or secrets without consent after full disclosure, and may implicate the advertising rules (DR 2-101) barring false, deceptive, or self-laudatory communications. The committee noted that recent Supreme Court decisions extend First Amendment protection to attorney advertising, raising a question of law on which it declined to opine.

Currency note

This opinion was issued in 1988, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Literary and media rights are now addressed by Rule 1.8(d), confidentiality by Rule 1.6, and lawyer advertising by Rules 7.1 and following. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer sign a movie or book deal about a client's case during the representation?

A: The committee concluded no; DR 5-104(B) bars a lawyer from acquiring publication rights to the subject of the employment until all aspects of the matter are concluded.

Q: Does that bar apply to deals with an outside publisher or producer rather than the client?

A: The committee concluded that, although DR 5-104(B) is directed at client contracts, a third-party publication deal made during the representation would still be improper under Canon 5, including EC 5-4 and DR 5-101(A).

Q: When does "conclusion of the matter" occur if there is a related civil case?

A: The committee concluded the matter is not concluded until all related proceedings end, including the civil action arising from the same facts, not just the criminal trial.

Q: Is a publication deal permissible once the case is over?

A: The committee concluded no Code provision specifically bars a post-representation deal, but cautioned that the lawyer must still avoid revealing client confidences under DR 4-101(B) and avoid false or misleading advertising under DR 2-101.

Background and rules framework

The opinion applied New York Code DR 5-104(B) (acquiring publication rights to the subject of employment), DR 5-101(A) (the lawyer's own interests), DR 4-101(B) (client confidences and secrets), DR 2-101(A) and (B) (false or self-laudatory advertising), and DR 7-107 (trial publicity), with the policy concerns of EC 5-2 and EC 5-4. These correspond to ABA Model Rule 1.8 (including 1.8(d) on literary or media rights) and Model Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• New York Code DR 5-104(B), DR 5-101(A), DR 4-101(B), DR 2-101(A)-(B), DR 7-107; EC 5-2, EC 5-4, EC 2-21 (applied in the opinion)
• MR 1.8 (prohibited client transactions, including media rights); MR 1.6 (confidentiality)

Cases:

• United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981), lawyer's publication contract during representation
• Wojtowicz v. United States, 550 F.2d 786 (2d Cir.), cert. denied, 431 U.S. 972 (1977), attorney benefiting from client's story
• Shapero v. Kentucky Bar Ass'n, 108 S.Ct. 1916 (1988); Bates v. State Bar of Arizona, 433 U.S. 350 (1977), First Amendment protection of attorney advertising

Other opinions cited:

• N.Y. County Op. 582 (1970): DR 5-104(B) and third-party publication agreements

See also

• NYC Bar Formal Op. 1988-7: Mortgage on a Client's Home to Secure a Legal Fee
• NYC Bar Formal Op. 1988-5: Lawyer-Tenants in Cooperative and Condominium Buildings

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1988-6/