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Welcome to EvO:R Entertainment
  •  The EvO:R-Pedia Musicians Tips Section

    Welcome to the EvO:R Tips Section. We call this section EvO:R-Pedia because it is like a complete reference library for Indie musicians...Just about every tip has been used so you won't find false promises and a series of books to buy after reading each tip. This section was put here by musicians so that people that followed can take this knowledge and use it's power.

    By Richard P. Dieguez
    Attorney and Counsellor at Law
    When I was approached about writing this article, I was asked to focus on the positive things to look for in an entertainment attorney. That's a very good point. It would be easy to simply list all the things to watch out for in a shyster and use that as a basis for finding a good attorney. I must admit, it really forced me to think it through.

    So that's why I stress in the title that I am presenting hints. A step-by-step formula or a "how-to" approach would oversimplify the process. That's also why the title does not refer to finding "the best," "the most powerful," "the least expensive," or even "the right lawyer." The point is to find the right lawyer for you. So I'll discuss 12 positive traits that should help clue you in.

    These hints are not listed in any particular order of importance, and many of them, as you'll see, are interrelated. I've tried to be as balanced as possible in my presentation. I used to be involved in the creative field with a healthy disdain of lawyers, but now that I've joined the ranks, I've personally experienced what life is like on the other side. Don't worry. Even though I'm a lawyer, I won't pull any punches. My clients have been kind enough to remind me what it's like to have a healthy disdain of lawyers -- just in case I forget.

    Finally, I'll probably raise a lot of issues that you'll wish I discussed in more detail. There's no way I can thoroughly cover all the bases -- short of writing a book -- to satisfy everyone's particular level of knowledge. But if this article gets you thinking and questioning in a way you weren't doing before, then it will be well worth the read. Perhaps it will help you come up with additional hints. So without further ado...

    1. Legal Experience. It's so obvious that many people take it for granted and don't really check it out too carefully. If someone is going to claim he or she is an entertainment attorney, he better have the experience to back-up the claim. Check to make sure that he or she has experience in matters that are relevant to your career. If you're looking for someone to negotiate a deal, ask if he has experience with that. And don't settle for vague generalizations -- get specifics. An experienced lawyer should be experienced enough to respond with sufficient and concise detail to satisfy your questions without revealing confidential client information. If the attorney is new to the business, it doesn't automatically mean you should look elsewhere. The lawyer may possess other qualities that outweigh a lack of experience as I shall later discuss.

    2. Legal Education. Inquire about the lawyer's academic background. Was this attorney a graduate of a top law school, Editor-in-Chief of a law journal, a clerk for a prestigious judge? It may help you to know that when a top law firm is looking for an attorney to hire, these are some of the credentials they seek. Of course, there are lawyers with top credentials who are sleazebags and those with humble credentials who are the salt of the earth. But, generally speaking, credentials are indicators of one's legal intellect and potential success as an attorney.

    You want an attorney who understands that his education did not end when he received his law degree and license. The attorney should make you feel confident that she is continuing to educate herself and stay on top of the frequent changes that occur in the law and in business practices.

    3. Knowledge of the Business. The attorney should have a practical working knowledge of how the business operates. It's not enough to have an abstract understanding of the law. It helps tremendously if the lawyer can understand how the business works from the businessperson/non-lawyer's point of view. The attorney should be able to give legal advice and apply the law so that it serves the real-world, day-to-day needs of the client. With this background, the lawyer is bound to have contacts with the many players who together constitute the industry, which in turn could be very helpful in furthering your career.

    Although it isn't critical to the actual practice of law, an attorney should be "hip" enough to know something about what you do. On the other hand, if the attorney's knowledge is limited to what's happening now, that ain't good either. The creative and business aspects of the music industry are rooted in what came before, and understanding that history should be part of an attorney's arsenal of knowledge.

    I'm devoting the most ink to this section. Check it out.

    4. Good "Bedside Manners". Like a good doctor, lawyers should be confident, in control, and able to speak with you and not talk down at you. It's critical that a lawyer be sensitive and secure enough to leave the ten-dollar words and double-talk at the courthouse. Your legal work stands a better chance of being done quickly and accurately if the attorney communicates with you -- verbally and in writing -- in plain English. It also helps keep your current and future legal bills down; clear and nontechnical communication with your attorney will help educate you in legal and business matters. This, in turn, will help avoid costly misunderstandings with your attorney and others in the industry.

    Moreover, the lawyer should at all times be courteous, professional, and just plain nice to you. The attorney has got to get the relationship right: he works for you, not vice-versa. When you call, he should make every effort to personally take the call if he is able and not have you relegated to a secretary. If you leave a message, he should call you back as soon as possible. When you do speak to the attorney, he should speak with you in an unhurried, but efficient manner. There should be no secrets: the lawyer should keep you up to date on the status of all your matters, even if you don't ask. Better yet, the lawyer should simply send you copies of all correspondence, documents, etc., that leave his office on your behalf or are received by his office on your behalf.

    5. Aggressive Representation. One reason you need an attorney is because you're too close to your personal affairs to objectively deal with them. A lawyer is an unrelated third party (don't tell me -- your brother's an entertainment attorney!) with sufficient distance to aggressively protect your best interests in a professional and business-like manner. Why pay a lawyer to continually scream, shout, curse, and generally be obnoxious to the people he deals with on your behalf? Such behavior doesn't make your lawyer aggressive (it just makes him an insecure lout). Rather, it makes you look bad, and, besides, you can do all that yourself for free!

    If, however, the situation is such that your attorney is going to have to wage a good fight, he or she must be tough, fearless, and be willing to wage war (without being a lout). But even in waging war, the lawyer should maintain perspective and keep your best interests paramount. If he or she does so, they will not get involved in a personal battle of the egos with the opposing attorney, which will unnecessarily prolong the combat and jack up the fees. Your attorney should be wise enough to know when to settle or compromise. Settling a dispute or compromising on a deal point can still be a "win" if the alternative is inevitably losing later at a higher cost.

    6. Ethics over Money: The Lawyer's Code of Ethics, among other things, stresses that attorneys should obviously shun conflicts of interest. Anyone who has been in this business long enough will know that there are lawyers who are all too willing to sacrifice a client's best interests to promote their own best interests: money, prestige, power, etc. Before agreeing to taking on your legal affairs, a lawyer should be asking you what other parties are involved. The deadbeat you want to sue may already be his or her client!

    If two or more friends plan to do business together (say as producer and writer), the attorney should also make some effort to look out for and explain potential conflicts of interest. If the friends tell the lawyer that they still want to use her, she should be prepared to explain how she will handle the situation if and when a conflict does arise.

    7. Morality over Ethics and Money: There is a difference between being ethical and being moral. The Lawyer's Code of Ethics presents general guidelines to help attorneys conduct themselves properly in their profession. Morality, as I am referring to it in this context, constitutes general guidelines to help people conduct themselves honorably in their lives. It evokes a higher standard than those imposed by ethics. It's not politically correct (I always wanted to use that chic phrase) for attorneys to skillfully maneuver their way around the loopholes of the rules and still consider themselves to be ethical and therefore "good." There is no law, for example, that requires a passerby, who can swim, to rescue a drowning baby. If the passerby lets the baby drown, he broke no law; but would he still be considered moral?

    8. Being an Entertainment Attorney for the Right Reason. This harks back to some extent on my previous comment. Why is that attorney in the entertainment business? It goes without saying that everyone is in their particular business because they have to have some means for making a living. But I think it helps the prospective client to hook up with an attorney who is making a living in the entertainment business because it is something that he or she truly loves. Does the lawyer really enjoy working with the kind of people we find in this business? If your instincts tell you that the motivation is primarily the money, the perceived glamour, or the women (I had the displeasure of meeting an "entertainment attorney" who without any shame made it clear what he was after), that attorney is in the wrong business, and you're in the wrong office.

    9. Reasonable Fees. Many attorneys require a retainer (a lump sum advance payment) against which hourly rates are charged. Retainer amounts and hourly rates will differ widely. Like any business, attorneys will charge what the traffic will bear. Generally speaking, the more experienced and successful the attorney, the higher the retainer and the hourly rate. Of course, if the matter you want that attorney to handle is complex, long-term and demands high responsibility, you can also expect the retainer and hourly rate to be high.

    Some attorneys will defer all or part of the fee and take it at the back-end of a deal (e.g., when advances and/or royalties are paid). Others will charge a flat fee (i.e., no hourly rates) for some types of matters, and others will work on a percentage basis or even a combination retainer and percentage. The attorney with the lowest or most flexible fees is not necessarily the right one for you. Likewise, don't automatically assume that an attorney is the best in town because his or her fees are also the highest in town.

    An attorney should be as creative as possible in accommodating clients who cannot afford legal services, without sacrificing the quality of his or her representation. Since you can't possibly know a particular lawyer's billing practice, the attorney should candidly explain what are the arrangements. Fees should bear some reasonable relation to the services to be provided, so the lawyer should be prepared to discuss how and why he arrived at the fee. To a client, hourly rates can be scary as they appear to have the potential of becoming a bottomless pit. So, have some fun and see how well the attorney responds if you ask what efforts are made to keep fees down. It's best when the attorney confirms the fee arrangement in writing, as it will help minimize misunderstandings later on. It's also best when the attorney's billing statements itemize the services rendered in an easy-to-read manner free of legal jargon.

    10. Reasonable Disbursements. Disbursements are typically the attorney's out-of-pocket expenses on your behalf for things charged by others: court filing fees, deposition transcripts, messenger service, overnight mail, airline travel, etc. Since these disbursements are generally not included in the legal fee, it's an additional cost you will bear. There has been much publicity about attorneys at established firms milking their clients on disbursements. Several firms had the audacity to charge 45 cents per minute for a secretary's time tending to a printer as it spits out documents; 30 bucks for coffee and Danishes (to serve four); and even local telephone calls! Attorneys should be as candid about disbursements as they are on legal fees. Lawyers, like other professionals (accountants, architects, etc.) commonly pass reasonable disbursements such as photocopies, faxes, and long-distance telephone calls to clients, but not overhead. It's getting ridiculous, but if an attorney offers you coffee, make sure it's on the house!

    11. Is He or She Overkill? In the quest to become a superstar or a blue chip company, many people gravitate to the attorneys who are already representing the big clients. But what can that attorney really do for you? Retain the superstar lawyer if he can explain how he can aggressively represent your interests -- even if you're a newcomer with small matters, relatively speaking -- while also aggressively representing the interests of VIP clients. The attorney should also explain how much of your work will be given to junior lawyers or paralegals, how much they will be supervised, and by whom.

    Remember the title of this article: the attorney should be the right one for you. So the attorney should be able to meet your expectations, which may go beyond simply doing your legal work. Are you looking for an attorney who can also keep you abreast of nonconfidential industry news that may not have yet been publicized; who can serve as a resource when you're seeking a writer, producer, studio, etc.; who can give you leads to business opportunities?

    Perhaps your matters may be better served by someone who is new to the industry; the attorney may have the dedication, the smarts, and the resources to grow along with you. And of course, there are many attorneys who fall within the entire gamut from newcomer to superstar lawyer. Which one is right for you depends also on your place in the universe of the entertainment business.

    12. Accessibility to the Client and the Industry. I don't mean accessibility in terms of having the good bedside manners I discussed before. Rather, don't assume that an attorney has closer contacts with the industry or is in some way better because the office is at a fashionable location. Likewise, don't assume that because you live in Nebraska, you will be better served by a local attorney over an East Coast or West Coast lawyer. If the attorney is aggressive, she can and will do business anywhere in the world, especially with adequate telecommunications equipment. A lawyer's office is really located between the ears, and work can be done at home, in a cab, on vacation, etc. A good reputation travels far and wide.

    So now that you know what to look for, how do you find out if a lawyer has it? Call the lawyer and ask. If possible, meet the attorney. But don't overstay your welcome. If you're going to call or visit, be prepared with what you wish to ask. Also try to anticipate what possible responses you may get so that you can be further prepared to ask follow-up questions. Calling or dropping by every few days because you forgot to ask something is disruptive and not fair to clients who have already retained that lawyer. Ask the attorney for any information he can send you about himself or his practice. If a friend referred you to that lawyer, grill your friend too as it may help you substantiate any claims the attorney made.

    Don't go to the extreme of being over-technical or scientific in evaluating a lawyer. If you've been around the block, there's nothing wrong with factoring in how you feel in your gut. If you can't shake a suspicion or reluctance, then bring it out in the open and discuss it with the attorney. If that's still not satisfactory, move on.

    What if you're still not certain you have found the right entertainment attorney, and you hesitate to make a commitment by paying a retainer? Answer: compromise. Go in for a consultation or retain her on short-term matters. The legal fees, relatively speaking, would be nominal and fixed so that if you're not satisfied with the representation, you can pull out and look for another attorney.

    Don't wait for something significant to happen before looking for an attorney. Look now so that when a matter comes up, there will be no delay in having it handled. I've heard many people say they hope they will never need to use an attorney and, thus, put off establishing a rapport with one. They associate attorneys with negative things: you hire one when you get sued or when you have to do the suing.

    My response is that you should hope you will need to use an attorney and should associate my profession with positive things: when you get that deal, when you're making enough from your career to buy your first home, when you open your own production company, etc. An attorney doesn't just come into play when either good or bad events happen. You should be consulting with the lawyer on a consistent enough basis to help the good events to occur and to prevent the bad ones from happening. That's why I spent considerable time discussing a lawyer's internal qualities. As an important part of the team you will need to succeed, the attorney-client relationship should be personal and comfortable. The way the entertainment business has developed, we're no longer a luxury, but a necessity.

    Copyright 1997 Richard P. Dieguez All Rights Reserved

    Richard P. Dieguez is an entertainment attorney with offices in New York City and Long Island. He is an adjunct professor at Baruch College where he teaches entertainment law. His articles are published regularly and he lectures at various academic institutions and industry conferences. National magazines, radio shows, and television programs have interviewed him on entertainment law issues. Mr. Dieguez works with and represents a wide variety of talent and entrepreneurs in the entertainment industry. Current and past clients include Lisa Lisa, The Jerky Boys, Village People, The Gangstarr Foundation, and members of Blue Oyster Cult.

    If you have any suggestions for future articles, you may contact the author via Nova Music at (212) 691-8519

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