14.05. Publication Rights [Rule 1.8(d)]

Client stories can sometimes make good books or movies.  A lawyer might be tempted to enter into a contract with a client whereby the client gives the lawyer the right to publish a book/produce a movie about the client’s experiences.  Rule 1.8(d) prohibits a lawyer obtaining publication rights to a client’s story until the representation is concluded.  The concern is that the lawyer may make decisions to increase the value of the client’s story – instead of making decisions that are in the client’s best interests. 

A police officer was charged and convicted of killing his wife and two children.  While the appeal was pending, the prosecutor signed a contract to write a novel about the crimes.  The Indiana Supreme Court subsequently reversed the conviction. Here is the title of the book and a description from the publisher:  Sacred Trust Deadly Betrayal:  “The true story of Indiana State Police Road Trooper David Camm, sentenced to three consecutive life terms for murders of his wife and children, only have to have the case overturned and brought to trial again – where if fell to prosecuting attorney Keith Henderson to determine whether Camm was wrongfully accused… or an unrepentant killer loosed on the community once more.”  After the case was reversed, the Prosecutor sent an email to the publisher setting out the timeline of when he would make a decision of whether to retry Camm.  Has he prosecutor acted unethically? [In re the matter of Henderson, (Jan. 13, 2017)( http://www.in.gov/judiciary/files/order-discipline-2017-22S00-1503-DI-135.pdf)]

Yes.  This case demonstrates the conflict that exists when a lawyer obtains publication rights related to a client’s case.  The court held that the prosecutor violated Rule 1.8(d), and imposed a public censure.  The court held that the publication agreement “permanently compromised his ability to advocate on behalf of the people of the State of Indiana at this trial….Were we to hold otherwise, there would be more chapters to this book.”  In other words, the prosecutor’s interests were divided between having a good ending to his book and doing what was right for his client (the state).

Remember that the ethics rules just prohibit contracts for the publication rights related to the litigation for a client during the litigation.  It is ethical for a lawyer to enter into an agreement that the lawyer’s fee would paid in an ownership interest in literary property.

Lucretia Lawyer is approached by Charles Client.  Client wants Lawyer to represent Client in the negotiations with Publishing House for the publication of Client’s first novel.  Client does not have money to pay Lawyer’s fee, so Client tells Lawyer:  “Instead of a fee, I will give you 25% royalties on the book I wrote.”  Lawyer agrees to accept the royalty amount instead of a fee.  Has Lawyer acted unethically?   

No.  It is not unethical for a lawyer to take an interest in a client’s literary property in lieu of a fee.  In this case, both the lawyer and client have the same interests (to have as many books as possible sold) so it does not raise the type of conflict of interest contemplated by Rule 1.8(d).  Remember, howeve, that the fee must still be reasonable under Rule 1.5.