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.
SOME HINTS ON FINDING THE ENTERTAINMENT
ATTORNEY WHO IS RIGHT FOR YOU
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...
WHAT AND WHO THEY KNOW
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
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
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.
WHAT AND WHO THEY ARE
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
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
HOW MUCH THEY COST
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!
THEIR PLACE IN THE UNIVERSE
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 BERSERK
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 PUT IF OFF
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