Formal Opinion 1988-6

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.