ENTERTAINMENT LITIGATION: REPRESENTING THE UNPOPULAR CLIENT

WHEN DOES A LAWYER GET TO DITCH A CLIENT

Mel GibsonMel Gibson’s recent diatribes — lending credence to the widely held view that he’s a racist and abuser of women — provoke an old but interesting debate about lawyers’ duties to clients and when a lawyer can “fire” a client. Last week, Matthew Belloni of The Hollywood Reporter wrote a post on his THR, Esq blog about Gibson’s lawyer, Tom Hansen, staying “loyal” to Gibson — unlike Gibson’s agents who dumped him.

THR’s post was about deal lawyers. One lawyer, quoted (anonymously), says that he/she “couldn’t represent someone who I didn’t personally believe in” and that “a lawyer should be judged by who he chooses to get into business with — and who he stays in business with.” Interesting.

After the jump, why I disagree with this sentiment.

LAWYERS, ETHICAL DUTIES AND THE RIGHT TO REPRESENTATION

The issue of lawyers representing an unpopular client — the “guilty” client — has been debated and discussed ad nauseum even among non-lawyers. Harper Lee wrote about it in To Kill A Mockingbird. In that story, the protagonist, Atticus Finch, represents an unpopular defendant (Tom Robinson), a black man accused of raping a white woman. Gregory Peck won an Oscar playing the earnest, justice-seeking Finch who stands in the face of a mob to protect the wrongly accused. It’s not hard to see how Peck’s Finch was among my fictional lawyer “role models” when I was a young, aspiring law student/lawyer.

Of course, societal attitudes have changed since TKAM. Now, it’s widely accepted that even the most unpopular clients in criminal proceedings have an absolute right to legal representation. My former colleague, Bob Shapiro, and the late Johnny Cochran, were never subject to ridicule for representing (successfully) OJ Simpson in perhaps the most infamous criminal trials of our time. Because the “right to counsel” in a criminal case is so well established in our judicial system, few begrudge the criminal lawyer who represents the “guilty” client. Atticus would be proud.

But what of the civil trial lawyers (like me) and the transactional lawyers referenced in the THR post?

In one sense, the transactional entertainment lawyer is indeed “in business” with his or her client. Many take a percentage of the client’s earnings from any particular project. The other clients of the top entertainment firms, like Hansen’s firm, may also pay more attention to the firm’s other clients — and a pariah like OJ Simpson or Gibson on the firm’s roster may impact other clients’ perceptions of the firm. In the small world that these business lawyers live in, I can certainly understand the sentiment that such lawyers want to “believe” in their clients and their desire to dump unfavorable ones.

Also, the lawyer-client relationship is a very personal one. Clients want to “believe” in their lawyers too — and lawyers have to be able to rely on their clients to cooperate (at a minimum) on any number of issues such as scheduling, discovery, etc. When that trust is broken, the resulting injury to the attorney-client relationship may become fatal. I can certainly understand a client — who offends (repeatedly) millions of people through racist, misogynist rants — can certainly affect that trust by being that dumb.

While the transactional lawyer can make the business decision not to represent the unpopular actor in future deals, it’s a little more complicated for a litigator like me.

TERMINATING THE GIG — LIMITS FOR THE LITIGATOR

Court rules limit when a litigator can terminate his representation of a client. Once you accept a case, getting out requires more than a lawyer’s change of heart. Litigators are permitted to withdraw from a case without the client’s permission if there’s a “conflict of interest” between lawyer and client. Usually, that happens when a client doesn’t pay the lawyer’s bills. It can also happen when a client doesn’t cooperate with litigation obligations — such as responding to discovery or appearing for testimony.

Representing entertainment industry individuals presents its own challenges. These people can be terribly busy — and many travel extensively, for work or pleasure, which makes getting their cooperation with a lawsuit that much harder. A celeb’s fame also makes them huge targets — for lawsuits and just nut jobs in general. All of which makes it difficult to earn their trust or to get a result that they would consider a “win.” (I previously wrote about some of these challenges in the context of protecting a celeb’s reputation — and the factors to consider before filing suit.)

So for litigators who are already in a case, it’s not simply a matter of ditching the now-undesirable client. Counsel of record in a case need a reason to dump the client — and the court isn’t supposed to just accept what the lawyer says when the client isn’t agreeable to terminating the relationship. See, e.g., Manfredi & Levine v. Superior Court, 66 Cal. App. 4th 1128, 78 Cal. Rptr. 2d 494 (1998). The decision to take a case, therefore, is important — because you may get stuck until the end.

LESSONS TO BE LEARNED

Transactional lawyers are probably best able to dump a client for any reason. Criminal lawyers are the most restricted from doing so — leaving civil trial lawyers like me in the middle. This town has had many seemingly undesirable celebrity clients — from OJ to Lindsay Lohan and now Gibson — there always seems to be someone whom everyone hates. (In the non-entertainment context, how would you like to be asked to defend BP on the oil spill, or Bernie Madoff. Or the Nazis who wanted to march in a parade in a largely Jewish neighborhood in Skokie, Illinois.) The lesson from Atticus Finch is that lawyers should want to represent the unpopular client. It may not be the easiest gig — but certainly in the case of Atticus, it may just be the right thing to do.

Of course, TKAM is a work of fiction with a wrongly accused black man being railroaded in a system that would have ignored his rights if not for our protagonist hero. It’s easy to step up and want to represent that client. Still, there’s something to be said for standing up for someone when no one else will — not to mention being loyal to a long time client. Dumping a client because he’s done dumb things and offended enough people to get him off the “A-list” doesn’t seem right to me.

That’s my $.02.