Why Consent Cannot Cure It

Why Consent Cannot Cure It

Client consent resolves many conflicts of interest, but Rule 1.8(d) is not one of them. The rule forbids a lawyer, before the representation concludes, to 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 The sentence ends there. It contains no clause excusing the agreement because the client approves, so the lawyer cannot reach for the usual cure.

Rule 1.8 sorts its conflicts into two groups. Some are consent-plus rules, which require the client's informed consent and add protections on top of it. Others are non-consentable: Rule 1.8(c) on gifts from clients (including testamentary gifts, such as being named in a client's will), Rule 1.8(d) on media rights in the client's story, Rule 1.8(e) on financial assistance to a client in litigation, and Rule 1.8(i) on acquiring a proprietary interest in the subject of the representation.² Rule 1.8(d) belongs to the second group, and the clearest way to see what that means is to set it beside a rule from the first.

Rule 1.8(a) is the consent-plus rule. It bars a lawyer from entering a business transaction with a client, or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client, unless three conditions are met:³

• The terms are fair and reasonable to the client, fully disclosed, and transmitted in writing in a manner the client can reasonably understand.⁴
• The client is advised in writing of the desirability of seeking independent legal counsel and is given a reasonable opportunity to do so.⁵
• The client gives informed consent, in a writing the client signs, to the essential terms and the lawyer's role in the transaction, including whether the lawyer is representing the client in it.⁶

A lawyer who represents a start-up in exchange for some of its stock must satisfy all three, and once she does, the arrangement may proceed.⁷ Each condition answers a risk that falls on the client alone: unfair terms, an uninformed signature, no second opinion. Where the danger is a bad bargain, a documented bargain that the client has chosen with advice in hand is a workable answer. The question for a story deal made in the middle of a case is whether the same machinery works there.

The text of Rule 1.8(d) does not say why it is a flat prohibition, but its structure suggests the reason. The Rule 1.8(a) safeguards all aim at one danger, a bad bargain for the client. A story-rights agreement made during the case creates a different danger. The lawyer acquires a personal financial stake in the account that the representation will produce, and that stake attaches to the very work the lawyer is doing for the client. A lawyer who owns the rights to a dramatic story has a reason to prefer a dramatic trial to a quiet plea, and fair terms and a signature do nothing to reduce that incentive. Nor can a client in the middle of a serious case judge in advance how the lawyer's stake will shape advice that has not yet been given. The rule responds by removing the incentive instead of trying to manage it.

Consent is irrelevant at both ends of the timeline. While the representation continues, consent cannot rescue the agreement. Once the representation has concluded, the agreement no longer meets the rule's timing element, so Rule 1.8(d) has nothing to prohibit.⁸ An exam stem that bolts the Rule 1.8(a) steps onto a story deal, with full disclosure, a signed writing, and advice to consult another lawyer, is offering a distractor. Those steps do no work under Rule 1.8(d), however thorough they are.