Sadly, there are a number of common situations that result in disputes between entertainers and their lawyers. The best way to protect yourself from an ugly dispute with an attorney is to approach all relationships with lawyers carefully and anticipate problems before they catch you.
Lawyers’ fees can quickly get out of control if negotiations for contracts drag on too long. During this time an entertainer may be missing other, better opportunities or simply paying too much for legal fees.
It’s normal for contracts to go through many drafts to correct errors and ensure the language is exactly how everyone wants it. While it would be foolish to rush into signing a contract without examining it carefully and making appropriate changes, you also don’t want the revision process to go on forever. As long as you and your attorney are conscientious, the fewer drafts, the better. It is common for major film or music deals to take four to six months to negotiate. Independent deals should take less—usually under three months.
Make sure you and the attorney are in agreement as to the goals of the contract negotiation. For example, if getting a guaranteed two-picture deal is most important, tell your lawyer that is your number one priority. Once you have achieved most or all of your goals, then be flexible on remaining issues so that you can save time.
If you are involved in a dispute that’s made it to litigation, it may take months or years to resolve. Some lawsuits, such as the Jefferson Airplane’s dispute with its former manager, can go on for decades. During the dispute, the Airplane’s record company, RCA, refused to pay over $1.3 million in royalties and $700,000 in interest to the entertainer, claiming it could not make the payment unless the management problems were resolved. After 20 years, a San Francisco judge finally ended the lawsuits, and the record company was required to make the payment. As you can imagine, entertainers can easily get buried in legal fees during even a medium-length lawsuit. Plus, during the period of the dispute the entertainer may be under legal restrictions that cut into its profit-making ability—such as a ban on using a name or releasing a new recording.
Beware of litigation! One lawsuit can easily cost $10,000 to $100,000, and often the only ones who profit are the lawyers. If you’re in a dispute, before screaming “I’ll see you in court!” ask your attorney for a realistic assessment of your odds and the potential costs. The assessment and underlying reasoning should be in plain English. If a lawyer can’t explain your situation clearly to you, he or she won’t be able to explain it clearly to a judge or jury.
Also ask your attorney about alternative dispute resolution methods such as arbitration and mediation. Often these procedures can save money and are generally much faster than litigation. Mediation is a procedure in which a neutral person, experienced in resolving disputes, helps the parties find a solution. The mediator doesn’t make a decision or ruling; the mediator only helps the parties settle their controversy. Arbitration is similar to mediation except that the arbitrator makes a decision that is binding on the parties. In some states there are organizations that specialize in these alternative dispute resolution procedures, such as California Lawyers for the Arts and the Volunteer Lawyers for the Arts in New York.
Lawyers are bound by ethical rules to disclose if there is a potential conflict of interest. A conflict of interest occurs whenever the lawyer represents adverse interests; for example, if your attorney also represents your manager. When there is a conflict of interest, there is the potential that your attorney may not battle as forcefully for your position. For example, if the attorney represents you and a movie company, it is possible that the attorney will be apprehensive of endangering a lucrative relationship with the movie company. Another danger is that the attorney you use may enter into an unethical relationship with an entertainer’s manager or record company.
Attorneys should disclose a conflict without being asked, but they don’t always do so. Always ask your attorney if there is a potential conflict. Always investigate possible conflicts. If there is a conflict, discuss the matter with the attorney. It’s possible that an attorney can vigorously represent both your interests despite a potential conflict of interest. This is a judgment call that should be made based on your feeling for the attorney and any other information you have obtained, such as references from other clients.
Many entertainers proceed in the face of a potential conflict because they have faith in their attorney’s ability to protect the entertainer’s interests and perhaps because they believe that such so-called conflicts can be helpful. Keep in mind that many people shop for a lawyer because he or she has conflicts (also known in our business as “relationships”). These relationships can be great and provide otherwise unavailable access, until it becomes a double-edged sword.
If you want to proceed, your attorney may furnish you with a waiver in which the entertainer gives up any right to complain about the situation later. The waiver is used to protect the attorney from a malpractice claim. You don’t have to sign the waiver, but the attorney will probably not go ahead if you don’t sign it. If you do not want to sign, find a different attorney.