Consequences of a Violation

One improper literary rights agreement can set off three separate legal inquiries, each governed by a different body of law. The sources show where the issue has actually surfaced: not in suits between lawyer and client over who owns the story, but in criminal cases testing whether counsel was effective and in disciplinary proceedings.¹ The third inquiry, whether a court will enforce the grant at all, belongs to contract law.

Each inquiry asks something different:

Discipline asks whether the lawyer’s conduct satisfied the elements of Model Rule 1.8(d).
Ineffective assistance asks whether the lawyer’s stake in the story actually impaired the defense.
Enforceability asks whether a court will lend its power to the agreement.

The answers do not travel together. A lawyer can face discipline while the client’s conviction stands, and a conviction can stand beside an agreement that no court will enforce. An answer that moves from “the lawyer violated Rule 1.8(d)” to “so the conviction is reversed” skips an inquiry with its own requirements. The subsections below take the inquiries in turn, beginning with the one the rule itself is built to produce.

Professional Discipline

Rule 1.8(d) speaks to the lawyer, so the lawyer answers for a violation, and the forum is professional discipline. The rule commands that a lawyer “shall not make or negotiate” the forbidden agreement before the representation concludes.² The lawyer breaks that command by making or negotiating, and the text asks nothing about what became of the client afterward. The four elements of a violation (timing, making or negotiating, rights held by the lawyer, and information from the representation) all describe what the lawyer did. None requires injury.

Discipline needs no proof of harm because the harm lies in the incentive, and incentives seldom leave evidence. An early Discussion Draft of the Model Rules put the problem this way: an agreement giving the lawyer literary rights “involves incompatible standards for the lawyer’s performance, one being effectiveness in representing the client and the other being performance that has literary value.”³ One judicial opinion that discussed that draft added that such a contract “permit[s], indeed invite[s], legal and tactical decisions which may be self-serving and contrary to the client’s best interests,” and that the appearance of impropriety taints the arrangement further.⁴ A lawyer with a hidden stake in the story can bend advice about a plea or a settlement without leaving a trace that anyone could later prove. If sanctions waited for proof of injury, they would reach only the rare case in which the distortion happened to show, and a lawyer who bargained for the client’s story would escape whenever the client did well anyway.

The profession had long defined the wrong by conduct. The 1971 ABA Standards for Criminal Justice called it “unprofessional conduct” for a lawyer, before the conclusion of all aspects of the matter giving rise to the employment, to enter into any agreement or understanding with a client by which the lawyer acquires an interest in publication rights in the subject matter of the employment.⁵ That standard turned on what the lawyer did and when, and the client’s welfare did not enter into it. The Model Rule keeps that structure.

Move the same negotiation to the weeks after the engagement has ended, and the timing element fails, so Rule 1.8(d) draws no discipline.⁶ The outcome of the case therefore plays no role on either side of the line. A good result does not excuse a lawyer who negotiated during the representation, and the end of the representation, not the verdict, frees a lawyer who waited. Answer choices that excuse the lawyer because the client won or was satisfied rely on facts the discipline question never asks about. Whether the violation also undermines a conviction is a separate inquiry, taken up next.

Ineffective Assistance Claims

A client who was convicted may want more than the lawyer’s discipline. The client’s question is whether the agreement deprived the defendant of the effective assistance of counsel that the Sixth Amendment guarantees, so that the conviction should be set aside. Rule 1.8(d) cannot answer that question, because it defines a violation by what the lawyer made or negotiated and says nothing about what happened at trial.⁸

The two inquiries differ in purpose. A conduct rule works in advance: it forbids an arrangement for the incentive the arrangement creates. Conflicts in general create a potential for inhibiting counsel’s work on the client’s behalf, but the potential does not always materialize, and few potential conflicts are treated as dangerous enough to be prohibited outright.⁹ A constitutional claim looks back at one trial, and the criminal cases have framed the issue as the effectiveness of counsel in that proceeding.¹⁰ If every ethics violation by defense counsel automatically undid a conviction, relief would turn on the existence of a side agreement and not on what occurred in the courtroom.

The opinion quoted above describes the risk that a conduct rule is built to prevent. The contract, it says, “permit[s], indeed invite[s],” decisions that “may be self-serving.”¹¹ The operative words are “permit” and “may.” The agreement creates the opportunity for conflicted decisions in every case where it exists, and whether the lawyer took that opportunity in a particular defense is a separate factual question. A defendant who points only to the agreement, and shows nothing about how it changed the lawyer’s performance, has described the risk without showing that it came true. The lawyer may be disciplined, and the defendant’s constitutional claim is still incomplete.

The agreement is identical in the two situations, so the fact that moves the answer is the evidence of how the agreement bore on the lawyer’s work. On an exam, ask whether the stem shows that effect or leaves the agreement standing by itself.

Two tempting answer choices carry a conclusion across the boundary between regimes. One says that because the lawyer violated Rule 1.8(d), the conviction must be reversed. The other says that because the constitutional claim fails, the lawyer committed no violation. Discipline turns on the four elements of the rule, and the conviction turns on whether the agreement actually affected counsel’s performance, so a result under one regime does not settle the other.

Enforceability of the Agreement

The text of Rule 1.8(d) governs the lawyer’s conduct and says nothing about what becomes of an agreement the lawyer makes anyway.¹³ Neither discipline nor the Sixth Amendment tells a court whether to help the lawyer collect. That is a contract question, and it arises when lawyer and client later fall out over the story and one of them asks a court to enforce the grant. The answer is a prediction, not a settled rule. The Restatement does not say what follows from violating its version of the prohibition, though presumably it means to make the grant void, and the cases have not worked out the lawyer’s and the client’s respective rights to the story.¹⁴

With so little direct authority, the likely outcome rests on public policy. Courts will almost certainly declare such a grant against public policy and void, for two reasons: the disciplinary rule forbids the arrangement, and in criminal cases a client’s grant of media rights to the lawyer has disturbed otherwise normal proceedings.¹⁵ The first reason is consistency. A court that enforced the grant would give legal force to a bargain the profession says the lawyer may not make, at the request of the lawyer who made it. Enforcement would also amount to judicial approval of the contract, and one opinion warned that such approval damages the integrity of both bench and bar.¹⁶ The second reason is practical, because the disruptions already seen in criminal cases show the harm the rule anticipates.

Refusing enforcement also gives the prohibition teeth. If discipline were the only consequence, a lawyer could weigh the chance of a sanction against the value of the rights and treat the sanction as a cost of doing business. A court that will not enforce the grant removes that payoff. The client’s signature does not change the analysis, because the rule contains no consent exception, so consent cannot be what persuades a court to enforce the grant either.¹⁷

The result changes when the rule gives the court no ground for calling the grant improper.

The second agreement does not violate the rule, so the rule supplies no public-policy argument for treating it as void.¹⁸ The prediction of unenforceability therefore tracks the violation. It does not follow from the mere presence of a lawyer in a media deal, and it does not follow from the sensational character of the story. Other rules may still bear on a post-representation deal, but the likely-void conclusion depends on a Rule 1.8(d) violation.

Two cautions keep this consequence in proportion. Unenforceability is the probable result and not a rule the authorities state outright, so an answer should say that a court is likely to refuse enforcement, not that the agreement is automatically void. And a refusal to enforce does not decide who owns the story, because the cases have not resolved that question. An answer choice that announces, as settled law, that the lawyer or the client holds the rights claims more than the authorities support. Discipline, the ineffective-assistance inquiry, and enforceability remain three questions with three standards, and a conclusion on one decides none of the others.