Year 1988 Ethics Opinions
THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1988-6
COMMITTEE ON
PROFESSIONAL AND JUDICIAL ETHICS
Printer
Friendly Version >>
June 14, 1988
ACTION: Formal
Opinion
OPINION:
A law firm represented a defendant
in a criminal trial that received widespread publicity. The firm
continues to represent the client as counsel on appeal from his
conviction on one of the charges against him. In addition, the
firm is acting as "consultant" to the client's counsel
in connection with an upcoming civil suit against him (arising
out of the same facts as the criminal case).
The question posed is whether the
firm may execute a contract for the production rights to the
story of the client's criminal trial while continuing to
represent him. In the opinion of the Committee, it would be
improper for the firm to enter into such a contract with the
client or a third party until the conclusion of all aspects of
the matter giving rise to the employment, including the civil
action. In addition, even after conclusion of the matter, there
are risks of improper disclosure of confidences and secrets and
misleading advertising that must be avoided.
DR 5-104(B) explicitly prohibits a
lawyer from entering into a production rights contract with a
client while the matter is still pending:
Prior to conclusion of all aspects
of the matter giving rise to his employment, a lawyer shall not
enter into any arrangement or understanding with a client or a
prospective client by which he acquires an interest in
publication rights with respect to the subject matter of his
employment or proposed employment.
Thus, an attorney may not enter
into a production rights contract with his client until the
entire matter (including all related proceedings) has been
concluded.
Nor may the firm enter into a
contract with a third party (e.g., a publisher or a movie or
television producer) until the matter has been concluded.
Although not specifically proscribed by DR 5-104(B), such a
contract made during the representation would be improper under
various other provisions of Canon 5. EC 5-2 provides that a
lawyer should not, after accepting employment "acquir[e] a
property right or assum[e] a position that would tend to make his
judgment less protective of the interest of his client." EC
5-4 is particularly instructive, warning that a lawyer who gains
an interest in publication rights relating to the subject matter
of employment "may be tempted to subordinate the interests
of his client to his own anticipated pecuniary gain." These
arrangements should be "scrupulously avoided" prior to
the termination of all aspects of the matter giving rise to the
employment, to avoid the type of conscious or unconscious
influence on the lawyer's course of conduct to which EC 5-4
refers. See also Canon 9, which requires that lawyers avoid even
the appearance of professional impropriety.
There is the additional risk that,
by entering into a prodution rights contract, the lawyer may
violate DR 5-101(A), which prohibits acceptance of employment
(without consent after full disclosure) if the lawyer's
professional judgment will or may reasonably be affected by his
own financial, business, property or personal interests. See
United States v. Hearst, 638 F.2d 1190, 1197-99 (9th Cir. 1980),
cert. denied, 451 U.S. 938 (1981) (criminal defendant's lawyer,
who entered into a contract during his representation to write a
book about the trial, may have violated DR 5-101(A)). See also EC
2-21.
Moreover, although DR 5-104(B) is
technically inapplicable to third party contracts, authorities
that have construed this provision have "disapproved the
practice of attorneys arranging to benefit from the publication
of their clients' stories." Hearst, 638 F.2d at 1198; N.Y.
County Op. 582 (1970) (suggesting that DR 5-104(B) proscribes
publication rights agreements with third parties made prior to
conclusion of the matter); Wojtowicz v. United States, 550 F.2d
786, 793 (2d Cir. 1977), cert. denied, 431 U.S. 972 (1977). See
also Lynn, Restricting Attorney Speech about Matters of Recent
Employment, 24 Ariz. L. Rev. 531 (1982). In Hearst, the court
indicated that the policy underlying DR 5-104(B) should prohibit
attorneys, during their representation of a client, from entering
into publication rights contracts with third parties. *
* But see C. Wolfram, Modern Legal
Ethics 525 (1986), interpreting DR 5-104(B) as permitting a
lawyer "to negotiate contracts for publication rights with
publishers and producers," a conclusion with which we
disagree.
Reference should also be made to
DR 7-107, which prohibits certain forms of trial publicity. These
provisions might be violated in a publication made prior to
conclusion of all the proceedings relating to the matter.
There is no Code provision that
specifically addresses the subject of publication rights
agreements with clients or third parties after the representation
has been concluded. Publications of this kind may often be in the
client's as well as the public's interest and may serve an
important informational function that might not otherwise be
fulfilled; nonetheless, the lawyer should be mindful of certain
ethical rules which may be invoked in connection with such
contracts.
Any publication rights contract
(with a client or third party) poses the risk that DR 4-101(B)
might be violated. Absent the client's consent after full
disclosure, an attorney is not at liberty to reveal any of the
client's confidences or secrets -- even if it would be in the
client's interest to do so. Nor may the attorney use any
confidences or secrets to the client's disadvantage or to the
attorney's own or a third person's advantage.
Further, there is a risk that such
publications might run afoul of the ethical rules governing
attorney advertising. DR 2-101(A) prohibits public communication
by lawyers that is false, deceptive or misleading, and DR
2-101(B) prohibits puffery, self-laudation, claims regarding the
quality of the lawyer's legal services, and claims that cannot be
measured or verified. These provisions are also contained in the
rules of each of the Appellate Divisions. We note, however, that
recent Supreme Court decisions have held that advertising by
attorneys is entitled to First Amendment protection (e.g.,
Shapero v. Kentucky Bar Association, 108 S.Ct. 1916, 56 U.S.L.W.
4532 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S.
626 (1985); In re RMJ, 455 U.S. 191 (1982); Bates v. State Bar of
Arizona, 433 U.S. 350 (1977)). In light of these decisions, it is
possible that publications that are neither false nor misleading
but are prohibited by the Code, by Appellate Division rule or by
statute may nevertheless be protected by the Constitution. That
is an issue of law upon which we cannot opine.
In conclusion, we believe that a
lawyer may not enter into a contract with his client or a third
party for the production rights to the story of the client's
criminal trial until all aspects of the matter are concluded. In
any event, we caution attorneys that there are also risks of
possible breaches of the ethical rules governing confidentiality
and advertising, which must be avoided in connection with such
publications, even after conclusion of the matter.
