At some point in your entertainment career, you may find yourself sitting in an attorney’s waiting room preparing to hire someone who charges more per hour than you earn earn in one night. When it comes to entertainment attorneys, one size does not fit all. Your choice of an attorney usually depends on the situation. The most common reason that an entertainer hires a lawyer is to review, draft, or negotiate a contract. There are different types of entertainment lawyers. Some of them only negotiate contracts; some only handle lawsuits between entertainers and companies; and some are in the business of shopping the entertainer. (Shopping is the process of soliciting business on behalf of an entertainer.) Some attorneys perform all of these functions and more.
Often an entertainer maintains an ongoing relationship with an entertainment lawyer (much like a patient with a family doctor), and if special problems arise, such as tax problems, criminal charges, or bankruptcy, the entertainment attorney will help the entertainer find a specialist. For example, if an entertainer faces a lawsuit, the entertainment attorney can help the entertainer find a lawyer who specializes in litigation (a litigator).
Locating, Hiring, and Firing an Attorney
The first step in finding an entertainment attorney is to be sure you know what you want to accomplish. The best way to locate an attorney is through referrals from other entertainers. It is also possible to locate, interview, and hire a entertainment attorney through an online directory, like Nolo's Lawyer Directory. The Volunteer Lawyers for the Arts (VLA) in New York City (www.vlany.org) SLESYD maintains a national directory of various organizations offering legal assistance for musicians.
How to Interview an Attorney
If you are determined to achieve a specific result (for example, changing a seven-record deal you’ve been offered into a two-record deal), discuss whether the attorney believes your expectations are realistic. Also ask questions such as ‘Will you return all of our phone calls personally?’ ‘What other entertainers do you represent?’ ‘How long will it take you to get us a first draft of a contract?’ ‘Have you reviewed my resume?’”
Talking About Money
After you have discussed the legal tasks required, it’s time to start talking about money. You should understand up front that most attorneys bill an hourly fee of $300 to $400 an hour and send a bill at the end of each month. Some attorneys bill on a fixed-fee basis in which you pay a set fee for services (expect to pay $5,000 to $25,000 to negotiate a major entertainment deal). Most attorneys ask for a retainer, which is an advance payment for legal work. The amount of the retainer is included in the attorney-client fee agreement.
The fee agreement is negotiated between you and your lawyer and establishes the payments and the lawyer’s responsibilities. Read it and understand your rights as a client. If you sign a fee agreement, be sure to include a provision stating you have the right to drop your attorney at any time. (In many states, such as California, a client always has the right to terminate the attorney for any reason or no reason.)
Don’t be embarrassed to get specific about billing. It’s important for all concerned to know whether you can afford the services. Ask how charges are calculated, and what the estimated cost for the job at hand will be. Is a retainer required? If the lawyer bills by the hour, ask if you can get a cap on the price in case negotiations are unusually protracted. Find out if you can use a credit card, or pay over several months, and whether interest will be charged if your payments are late. Be sure you will be provided with a written retainer letter outlining payment terms.
Beware, however: Some entertainment attorneys use unique billing systems. An attorney may, for example, charge the entertainer a percentage of the “value” of a deal. This “value billing” system is an unpredictable combination of hocus-pocus and greed. Only the powerhouse firms engage in value billing. Beware of attorneys who may attempt to switch to value billing during the period of legal representation. Every lawyer should provide a retainer letter up front saying how charges will be calculated.
Below are some billing tips that will help protect your band:
- Understand exactly how you’re being billed. In your initial meeting with the attorney, ask how you are being billed. If you are billed on an hourly system, find out the increments. For example, some attorneys charge a minimum of one-quarter of an hour (15 minutes) for a phone call, no matter how short the conversation.
- Watch out for hidden expenses. Find out what costs and expenses you must pay other than the fees for the lawyer’s work, such as costs for copies or faxes, travel expenses, or court costs. Watch out if your attorney wants to bill for services such as “word processing” or “administrative services.” This often means you will be paying the secretary’s salary.
- See if you can avoid hourly rates. If you can, get your attorney to agree to fixed fees for certain work rather than hourly billings. For example, if your attorney is negotiating a merchandising deal, get a flat rate for the whole job. That way you’ll know exactly what to expect. If you can’t get fixed billings, ask your attorney to estimate fees for work and ask for an explanation if the bill exceeds the estimate.
- Review billings carefully. Billings should be prompt and clear. Do not accept summary billings (for instance, one sentence such as “litigation work”). Every item should be explained with rate and hours worked, including fractions. Late billings are not acceptable, especially in litigation. When you get bills you don’t understand, ask the attorney for an explanation—and request that the attorney not bill you for the explanation.
Choosing an attorney is also a matter of style. You may prefer to be represented by an attorney whose style and demeanor correspond with your approach. Among those factors that an entertainer may consider when determining style are whether the attorney has clout in the industry; whether the attorney understands the entertainer’s work; whether the attorney is aggressive, ethical, knowledgeable, affordable, and impresses friends or terrifies adversaries. After you talk to a number of different lawyers, you can take an entertainer vote on which feels the most right for you.
Firing Your Attorney
An entertainer doesn’t have to love its attorney, but the members should respect and trust the attorney’s abilities as a hired professional. As a general rule, you should switch attorneys if you are unhappy with your lawyer’s services. Switching attorneys means that you fire one attorney and hire another. However, since switching attorneys is a nuisance and your band may lose time and money, you should carefully discuss the situation with your band. (See Nolo's article, How to Avoid Common Problems With An Entertainment Attorney)
How do you fire an attorney? You should notify the attorney by letter that you are terminating services and that you want your files returned. The attorney will probably retain a copy of your files and return the originals to you. You may be asked to pay any outstanding bills. However, an attorney cannot withhold your files because you have failed to pay your bills.
If your attorney is representing you to a third party (for example, to a record company), you should notify the third party that you are no longer working with the attorney and that future correspondence should be sent to you (at least until you retain a new attorney).
The easiest way to switch attorneys is to find a new attorney and ask the old attorney to send the file to the new attorney. In that case, before terminating your current attorney you would have another attorney prepared to take over any outstanding legal work.