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Hiring a Music Attorney – Some Insider Tips
By Bart Day
If you are seeking a career in the music business, there will most likely come a time when consulting with an attorney will be helpful.
When Should You Consider Hiring An Attorney?
As an attorney myself for over twenty years, I have observed over the years many attorneys working with their clients, and I have seen many attorney-client relationships work and not work. And since I want this article to be as helpful as possible, I want to discuss here, completely candidly, what I believe what you should know about hiring an attorney and working successfully with that attorney.
Certainly, you should consult with an experienced entertainment attorney before you sign a contract of any significance.
How to Find an Entertainment Attorney
Also, an experienced music attorney can be very useful as a ‘sounding board’ for any ideas and strategies you have, and also can serve as a source of contacts to various music business professionals who can help you move ahead in the music business.
There are various ways to find an entertainment attorney, as follows:
Generally, the best approach is to ask people you know who are in the music business and who have previously hired a music attorney. Find out whether they had a good experience with the attorney, whether the kind of legal matters the attorney handled were similar to the legal matters you need help with, and whether the attorney’s fees were reasonable.
2. Music Business Directories.
There are various music business directories which list music business attorneys, often by geographical area. One such directory is the Recording Industry Sourcebook (www.recordingindustrysourcebook.com). Also, the Los Angeles music business magazine Music Connection in Studio City, California annually prints out a national directory of music business attorneys in one of its monthly issues.
3. Music Business Conferences.
One good thing about music business conferences – especially the large conferences like SXSW – is that they are a good way to meet music business attorneys and to have some casual interaction with them. That way, you can get a good sense of whether they are a good fit for you. Usually you can find music business attorneys on some of the panels at the conference (when you will usually have the opportunity to speak with them after the panel), and also at the scheduled ‘mentoring sessions’ available to attendees at the conference.
Once you have the names of a few attorneys, do some online searching, to get a better idea of how much experience they have.
Music attorneys are accustomed to being asked by prospective clients whether they do “deal shopping” – i.e. whether they will approach record companies and music publishers to try to get a record deal or publishing deal for the client.
Contacting an Attorney for the First Time
In my experience, attorneys who advertise that they do ‘deal shopping’ are most often the last people in the world you want representing you to labels and publishers. Often they are shopping multiple clients at the same time, which gives the impression to labels and publishers that they are just deal shopping ‘for hire’ and don’t really believe in the music.
And there’s another issue, which is a more recent development. It used to be that labels were more willing to consider material brought to them from attorneys, since there was a possibility that there was some obscure artist who might be the next big thing. But these days, labels and publishers have their ears much more ‘to the ground,’ and believe (not always correctly, I might add) that if there are any unsigned artists out there they should know about, they already know about them.
There is, however, one instance in which I have seen deal shopping sometimes work, though. Sometimes an extremely well-connected attorney will take a strong personal interest in an artist and will want to do anything possible to help the artist, including approaching labels and/or publishers on the artist’s behalf. Having great connections will help the attorney get ‘through the door’ and be taken seriously. That being said, my experience has been that if the label or publisher doesn’t fall in love with the artist , or believe that the artist has great commercial potential, they are not likely to be interested in signing the artist. And even if they do sign the artist – based primarily on the attorney’s status in the industry – it’s ultimately not likely at the end of the day that they will put the promotional muscle behind the artist necessary to make the artist a success.
In any event, if you decide to hire an attorney to do ‘deal shopping,’ make sure their compensation is on percentage basis only, and that you are not having to front the legal cost. If they don’t believe in you enough to shop you on a percentage basis, they probably do not envision their ‘shopping efforts’ being very successful. Also, make sure that you have a clear written agreement with the attorney spelling out the arrangements. And it’s best not to sign such an agreement until you have first had an opportunity to obtain knowledgeable advice from a music business expert about whether the terms of the agreement are reasonable.
Before contacting an attorney, make sure that you are clear in your own mind what you are expecting from the attorney, and define what your legal needs are, as best you can. And make sure that you are ready to concisely and clearly communicate those needs to the attorney. The more you can do so, the more professional you will seem to the attorney, and the more seriously you will be taken.
Sample Questions to Ask the Attorney
Some attorneys will be willing to have an introductory meeting with you, just so you can meet them and feel out whether they might be a good fit for you. You could start this process by calling a few attorneys or sending them an e-mail, just describing briefly who you are and what you do, and what your legal needs are, and asking whether they would be willing to spend 10 or 15 minutes with you, so that you can meet them. Be careful not to “hype” yourself to them; just make it ‘down to earth’ instead. Experienced music attorneys have pretty advanced ‘BS detectors,’ and it will hurt your credibility if they think you are at all hyping your situation.
If you then find one or more attorneys willing to briefly meet with you on an introductory basis, don’t expect them to discuss the details of your legal matters or to give you legal advice as such; remember that the point of the meeting is just to have an introductory session just so you can meet the attorney. If they think you are just trying to get free legal advice, it will usually not start out the relationship on a very good basis, since ‘time is money’ to the average attorney. And be sure to stick to the 15-minute or so time frame, unless the attorney clearly indicates that he or he wants to have a longer session with you.
This is not to say that attorneys are just mercenary creatures; most attorneys I know do a substantial amount of pro bono work. That being said, most attorneys have significant overhead costs and very busy schedules and do not have the luxury of donating big blocks of their time to non-paying clients.
By the way, it can sometimes take awhile for a client to find an attorney who is a good fit. Therefore, it’s better to start looking sooner than later.
How many years have you been practicing music law?
Things to Look For In an Attorney
What percentage of your law practice is music law?
Have you done anything else in the music business (other than being a music lawyer)? (All things being equal, I would always prefer to hire an attorney who has had other experience in the music business (played in bands, been a manager or producer, etc.), since they will have a broader perspective. It also shows that they have a passion for music.)
Have you represented any artists with whom I would be familiar? (Be careful, though, when attorneys, or anyone else for that matter, say they “worked with” such and such artist, especially if it is an extremely well known artist. It is common in the music business for people to inflate their credentials to the Nth degree, and their claimed relationship with a major music business figure often turns out to be an insignificant and tangential relationship.)
What is the attorney’s fee structure? Do they charge at an hourly rate basis, or on some kind of ‘flat fee’ basis?
Are there any kinds of music business matters the attorney does not handle?
1. Do you feel that the attorney is really listening to you, and really trying to understand your legal matter and your goals and needs, or instead, does the attorney just seem to want to hear himself or herself talk and is just on one big ego trip? Obviously, if it is any of the latter things, that is a bad sign indeed.
Attorneys to Avoid
2. Do you feel like there is good chemistry between you and the attorney, and is the attorney’s personality relatively similar to yours?
3. Are you comfortable with the attorney’s level of expertise?
4. Are you comfortable with the attorney’s communication skills and people skills? (Remember, there will be times when the attorney is speaking on your behalf, in which case it can really hurt you if your attorney does not make a good impression on people. You want an attorney who is not only looking out for your best interests, but who is also able to establish rapport and trust with people who could potentially help your career in a big way.)
5. Does the lawyer seem to be cost-sensitive, and seem to be interested in handling your legal affairs as efficiently and cost-effectively as possible? (There often is a long way and a short way to get to the same result, and because attorney fees are often determined on an hourly basis, the more hours the attorney spends on your legal matters, the more you are paying. And so, you want an attorney who is smart and experienced enough to realize that it is in your long term and his or her long-term interest for him to handle your legal work as cost sensitively as possible, rather than just trying to maximize his or her immediate income from you.)
6. Does the attorney give you clear, concise answers to your questions? (It is likely that at some point your legal matters are going to involve some fairly complicated and confusing legal issues, and it will be very frustrating for you if the attorney cannot explain those issues to you in a clear and simple manner.)
7. Does the attorney speak to you as an equal, or does the attorney instead ‘talk down’ to you? (The best attorney-client relationships are always based on mutual respect.)
8. Does the attorney have a good reputation? (If it is not good, your own reputation may be tainted by your association with the attorney.)
1. Avoid attorneys referred to you by a record company or publisher interested in signing you. Just as an example, I know of a well-known independent label which regularly refers prospective artists to the same attorney, and some of those artists end up hiring that attorney. That is potentially a real problem for those artists, because that attorney is not likely to want to do anything that would possibly alienate the label, since the label is regularly sending him clients.
Big Firms versus Small Firms
2. Avoid “dabblers.” By that I mean, attorneys who hold themselves out as handling entertainment law matters, but who actually have very limited experience doing so and who in reality don’t do that much entertainment law work and don’t have much real expertise. That’s why it’s important to verify the true level of an attorney’s experience. ‘Trust, but verify.’
3. Avoid attorneys who guarantee you that their involvement will bring you fame and fortune.
4. Avoid “know it all” attorneys with a ‘deal killer’ mentality or who seem to have a chip on their shoulders. Often attorneys like this want to show how much they know, and one way to do that is to find as many problems with an offered contract as possible. That being said, by no means would I ever criticize any attorney for being thorough and detail-oriented and critical of the contents of a contract. But I’ve seen many situations in which such attorneys have, consciously or subconsciously, sabotaged deals which would have clearly been a win-win on both sides of the deal if only the attorney had been more focused on moving his or her client’s career ahead, rather than letting his or her ego take over.
By the way, you can also run into a variation of the same problem, but with inexperienced attorneys, who don’t know what industry standards are and who, due to their lack of comfort with the situation, may decide that the safest thing to do is to tell their client not to sign a contract.
5. Avoid attorneys who seem reluctant or unable to discuss legal cost issues in a straightforward way.
For one reason or another, you may find yourself in a situation in which you need to choose between a smaller law firm and a large law firm. The size of law firms varies tremendously, from one lawyer to (at some of the big national law firms) literally hundreds of lawyers.
Advantages of smaller law firms
Here is what I see as the advantages of big versus small law firms.
Normally at smaller firms you will get more personal attention, and as a general rule the hourly rates will be lower and your legal costs will be lower.
Advantages of larger law firms
With a smaller firm, you are more likely to continue to work with one or two regular attorneys, rather than being shunted around to different attorneys, which is more likely to happen at a large firm.
Also with a smaller firm, their clientele is more likely to be primarily individuals and smaller companies, and not large corporate clients. And so, you are more likely to be higher priority at a small firm than at a large firm, where their big corporate clients are likely to get the most attention.
The personality of a smaller firm is usually more comfortable to most musicians.
The main advantages of large law firms are their broad range of expertise on just about any kind of legal matter, and the sizes of their staffs. And so, if you have a visa issue while on tour in
China, or an extremely complex tax issue relating to your royalties, a big firm is much more likely to have attorneys on staff who are experts about those things. And if you get involved in complicated litigation, and need a ‘small army’ to go to bat for you, a larger firm will have that capacity.
All that being said, it is unusual for musicians at the early stages of their careers to have those kinds of legal needs in the first place. And if those needs do arise, an experienced entertainment attorney usually has a network of resources that will enable the attorney to find the right expert quickly.
Meeting With an Attorney to Discuss Your Legal Matters
Before your first appointment with an attorney, it’s a good idea to prepare a list of the questions which you want to go over with the attorney. Then, ask the attorney what documents you should bring with you to the meeting, and make sure that you then have any relevant documents well organized. Plus make a copy of them so that both you and the attorney each have a copy in front of you when you are discussing those documents.
Most attorneys work at an hourly rate, which on the low end is $150 an hour, up to $500 and more per hour, especially at some of the large entertainment law firms in the major entertainment industry cities. My experience is that most well-qualified entertainment attorneys at small or medium size law firms are currently charging in the range of $250-$400 per hour.
How to Maintain a Good Relationship with Your Attorney
In terms of hourly rates, one thing to consider is that an attorney’s hourly rate doesn’t really tell you what the total cost will be. A very experienced attorney is much more likely to be able to handle your legal matters quickly and efficiently, since they likely will have handled the same legal matter many times before, and so, you will not be paying them ‘to learn on-the-job.’ As a result, even if their hourly rate is higher, the total cost could end up being less.
Whenever possible, it is always a good idea to try to get a cost estimate from the attorney. Sometimes it will be practical for the attorney to give you an estimate, and sometimes it won’t be. For example, if the attorney is preparing a standard kind of agreement, it will likely be possible for the attorney to give you an estimate of the amount of time required to complete the task. On the other hand, if you are having the attorney represent you in negotiations, it is usually not really possible for the attorney to give you a very specific estimate, since there are too many variables outside the attorney’s control.
One thing you can do even in that situation, though, is to ask the attorney, preferably in writing, to let you know when the total legal cost has reached a particular amount. That way, you will at least not feel like you are signing a blank check. And, preferably, get it in writing.
Also, be prepared to pay the attorney a “retainer” (deposit). The attorney will then put the retainer amount into the law firm’s trust account and pay himself or herself at the end of each month for work done that month. There is no standard practice regarding the amount of the retainer; it will depend on how much work the attorney envisions needing to be done. Not all attorneys require retainers, though.
Most attorneys will also ask you to sign a “retainer agreement,” which will contain the terms on which the attorney will be representing you. Read it carefully before signing and if you’re seriously uncomfortable with anything in it, don’t let yourself get pressured into signing it. You can always ask the attorney to delete the objectionable clause(s), or you can ask ‘for more time to think about it.’
Finally, as I mentioned above, most attorneys work on an hourly rate basis. There is one significant exception to this rule. Often in the case of artists who are signed to a major label, the attorney will represent the client on a percentage basis (most often 5%) of the artist’s annual entertainment industry income, and so, the attorney is in effect being paid a commission of your annual income, instead of charging you an hourly rate for the legal work done. There are pros and cons of this kind of arrangement, and it’s always a good idea to get independent advice before entering into such arrangement.
1. Stay in touch with your attorney regularly and keep the attorney updated on any significant developments in your career.
2. If some problem develops in your relationship with the attorney, discuss the problem right away with the attorney, and in a non-critical and non-confrontational manner. It’s very possible that the attorney is not even aware of the problem.
3. Make sure you understand what your financial obligations are to the attorney, and then pay your legal bills in a timely manner. The attorney will value you more as a client, and consider you a more reliable person, if you stay on top of the financial aspects of the relationship. And the attorney is more likely to stick his/her neck out for you with other people if the attorney considers you a reliable person.
4. If you have a legal matter which requires urgent attention, make sure the attorney understand that. But by the same token, don’t make every legal matter an “emergency.”
5. Don’t take more of the attorney’s time than necessary. It will save you money in the long run, and will also show the attorney that you are doing whatever you can to try to avoid unnecessary legal expense.
[This article is a new chapter in the 2012 edition of the book “Music Is Your Business: The Musician's FourFront Strategy for Success,” to be published later this year.]
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Note: Bart Day is a partner at the Portland, Oregon law firm of Day and Koch LLP and has a national entertainment law and copyright/trademark practice. He has been involved for over twenty years in a wide array of music, film, and television productions, and previously worked as an attorney for a Honolulu concert promotion company, as VP of Business Affairs for a Los Angeles entertainment company, and as outside counsel for Universal Studios. Bart co-authored a chapter about record companies in The Musician's Business and Legal Guide (Prentice-Hall Publishing) and the book “Music Is Your Business: The Musician's FourFront Strategy for Success.” Bart was recently elected as a member of the Board of Governors of the Recording Academy (Pacific Northwest Chapter), presenter of the Grammy Awards.
He can be reached at email@example.com and at 503-224-4900.
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