The Literary Rights Rule

Literary and Media Rights

The Literary Rights Rule

Model Rule 1.8(d) bars a lawyer from turning a client's story into the lawyer's own commercial property while the case is still going. The rule reads: "Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."¹ An opinion quoting the rule sets it out as subdivision (d), captioned "Acquiring Literary or Media Rights."² The Model Rules treat a client's grant of such rights to the lawyer as a "forbidden" "financial arrangement."³ Four features define the prohibition: when the agreement is made, what the lawyer does with it (makes or negotiates), what the lawyer receives (literary or media rights to a portrayal or account), and where the account comes from (information relating to the representation). Later sections take each in turn. This one explains why the rule exists and why it is drafted as a bright line.

A lawyer is hired to advance the client's legal objectives. A lawyer who also holds the rights to the client's story has taken on a second objective that does not always point the same way. Holding those rights gives the lawyer an incentive to generate the maximum publicity about and suspense surrounding the representation, and it invites the disclosure of confidential information.⁴ Neither interest serves the client, and both act on the lawyer at the moment the lawyer gives advice.

The conflict bites hardest at a plea offer, because advice about whether to settle or go to trial is where a client most needs undivided judgment.

One opinion in Maxwell v. Superior Court, 639 P.2d 248 (Cal. 1982), captured the problem in a single image: counsel cannot simultaneously wear the hat of a literary or theatrical agent whose goal is commercial promotion and the hat of a counselor at law who is guided by strict ethical constraints.⁵ The opinion was a dissent, so it does not state that court's holding. It does show how the profession reasons about the arrangement. The objection is to the combination of roles, not to the character of any one lawyer, which is why a good-faith promise to stay objective answers nothing.⁶

The rule therefore attaches to the agreement itself. A lawyer who makes or negotiates a forbidden agreement has violated it whether or not the advice that follows is sound, and the text contains no element of actual harm to the client. The reason lies in the nature of the injury. A rejected plea cannot be rerun, and a client who loses at trial can almost never prove whether counsel's recommendation was shaped by a hidden book deal. The harm sits in the lawyer's incentives, where no one can observe it directly, so the rule forbids the arrangement rather than waiting for damage that would be nearly impossible to prove.

Timing separates a forbidden agreement from a permitted one, and an exam stem about a book deal will usually turn on it. Ask when the lawyer made or negotiated the agreement relative to the end of the representation.

The rule's opening phrase limits the ban to the period before the representation concludes. That phrase makes this second lawyer's conduct permissible under Rule 1.8(d) and makes the lawyer in the plea-offer scene a violator.⁷ The next section takes up exactly when a representation concludes, along with the other elements of a violation.