Posted On: January 21, 2009 by Melvin N.A. Avanzado

ENTERTAINMENT LITIGATION: BARRY HIRSCH SUED FOR MALPRACTICE

WELL KNOWN ENTERTAINMENT LAWYER TAKEN TO TASK OVER HIS REPRESENTATION OF LATE WRITER-DIRECTOR COLLIN HIGGINS

The Daily Variety reported yesterday that entertainment lawyer, Barry Hirsch, has been sued by the trust of the late writer-director, Collin Higgins, for malpractice. You can find the Variety story here.

According to the report, the Higgins trust sued Hirsch on January 14 for malpractice and conflicts of interest over Hirsch's representation of Higgins on his deal with Fox to rewrite the screenplay for the film "9 to 5" in 1979. Fox hired Higgins to rewrite Patricia Resnick's original screenplay for that picture.However, Resnick later wrote a stage musical based on "9 to 5" -- and Hirsch supposedly represented her in that endeavor.

That did not sit well with the Higgins trust.

MALPRACTICE SUITS ARE DIFFICULT AND UGLY

Suing lawyers over their alleged mistakes is never an easy proposition. Just because a lawyer may have made a mistake doesn't mean that they will be found to have been "negligent."

Whatever Hirsch is alleged to have done, or not done, in connection with his representation of Higgins, the level of proof required to prove malpractice in any case is significant. Even if Hirsch made a mistake in his representation -- and I don't know enough to say that he did -- the Higgins trust will need to prove that Hirsch's conduct violated the "standard of care" by lawyers in that field. That's a big hurdle in any case.

The more interesting aspect of this story is the apparent claim by the Higgins trust that Hirsch was representing Resnick at the same time he had some continuing relationship to Higgins -- essentially a claim that Hirsch had a conflict of interest. As a legal matter, a conflict of interest -- representing two clients at the same time with competing interests without each client's consent -- will establish that the lawyer committed malpractice. I suspect that this will be one of the main battle grounds in this case. More importantly, if this case proceeds to conclusion, it could put at issue some of the accepted practices among entertainment lawyers working in Hollywood.

(In the interests of full disclosure, I previously represented Hirsch and his partners when Hirsch left his old firm to form Hirsch Wallerstein Hayum Matlof Fishman.)

This case should be interesting to follow. And if it goes beyond the initial stages, the proceedings are bound to get ugly.

The Entertainment Litigation Blog is published by Melvin N.A. Avanzado, an entertainment litigator and civil trial lawyer in Los Angeles. Mel is an accomplished trial lawyer with over 20 years experience. Mel's practice includes extensive experience representing plaintiffs and defendants in complex disputes, including the representation of motion picture studios, television networks, media companies, and significant individuals in the entertainment and sports industries.

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