Entertainment Law Outline

Jan 18th

Initial Meeting

Sometimes artist K’s will contain disclaimer’s which tells the artist he has a right to seek outside counsel
Failure to read an agreement is generally not a defense
An atty should recommend that an artist seek independent advice regarding the retainer agreement
When dealing w/ a group of artists, the atty should view the situation for potential conflicts and suggest the possibility of each group member to obtain separate counsel

Conflicts of Interest

When an atty on retainer to one party (record label), and attempts to negotiate a deal bw 2 clients w/ differing interests and objectives
Before an atty may be exposed to disciplinary action or a malpractice suit for representing multiple clients, the clients interests must conflict or be adverse
An atty can represent multiple clients in the same transaction if:

i. He can adequately represent the interests of each clients, and
ii. Each client consents to the representation
1. –After full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each

Business Relations w/ Clients

Atty cannot enter into a K w/ a client or acquire a financial interest adverse to a client unless:

i. The terms of the deal are fair and fully disclosed in writing to the client so that the client understands its meaning;
ii. The client is advised in writing of the opportunity to seek outside counsel
iii. The client consents in writing
1. Note: The burden is always on the atty bc of his professional responsibility and superior knowledge

Croce v. Kurnit

i. At the initial meeting, the lawyer reviewed the K bw Croce and record label. The lawyer had a relationship w/ the managers and publishers.
ii. Although the atty was not the Croce’s atty, court held him liable for failure to notify Croce to seek outside counsel regarding his K
iii. A lawyer who stands to profit from a transaction may find himself in a fiduciary relationship w/ a non-client by failing to advise them of right to seek independent counsel at the outset

There is no prohibition about an atty taking on dual roles (ie. Manager, agent, etc.), but a lawyer may not use his secondary occupation to promote his law business

Lawyer as witness

An atty who negotiates an agreement for his client may be disqualified from representing a client if the substance of the negotiations has become an issue in subsequent litigation and the atty’s testimony is deemed essential

i. Applies if the lawyer will be called as a witness
ii. However, the atty can still be an advocate and witness if the client gives his informed written consent

Atty’s are routinely disqualified when the lawyer negotiated an agreement which is now the subject of subsequent litigation

i. Ie. when the agreement is now being disputed by the parties
ii. Under the “unsworn-witness” rule, if an atty “ought” to be called as a witness then the atty must be disqualified even if no party calls him as a witness

Non-Refundable Retainers

Reasonableness of a fee

i. Time and labor required
ii. Likelihood that acceptance of employment will preclude other employment for the atty
iii. Fee customarily charged in similar situations
iv. Amount involved and results obtained
v. Time limitations imposed by client or the circumstances
vi. Nature and length of the relationship w/ the client
vii. Experience, reputation, and ability of lawyer
viii. Whether the fee is fixed or contingent

Non-refundable retainers are not presumptively invalid
A “specified minimum” is allowed when:

i. The amount is not excessive or unconscionable
ii. Non-refundability must be expressly conditioned on the absence of lawyer default
iii. Agreement must clearly and unambiguously explain in terms the client would understand what grounds would entitle the client to a refund of the otherwise non-refundable fee

An atty may be dismissed w/ or w/o cause

i. If dismissed, an atty is entitled to payment on a quantum meruit basis unless another amount is otherwise agreed upon

Preservation of Client Funds

NY and Cali have Client Security Funds to compensate victims of shady lawyers

i. NY: Lawyer must have been found guilty of misusing client funds in order for client to rec