Share this on Twitter Share this on Facebook Share this on Linked In Share this by Email
Ethics Byte

What’s a life story worth?

By Diane Karpman

Diane KarpmanThere have been some snickers, smirks and questions asked online and in CLE programs about how Dr. Conrad Murray funded his robust defense. Aspersions are being cast that his lawyers may have had some type of unholy deal involving the exploitation of his life story. This article is not a validation of any of those comments, but the Murray case raises interesting issues involving consentable and unconsentable conflicts of interest.

Instead of questioning whether a deal might have been made ― and it may just be all gossip ― it may be beneficial to consider a highly controversial California case, Maxwell v. Superior Court, 30 Cal.3d 606 (1982). Fundamentally, when people are facing serious allegations, they have a right to be represented by competent and independent counsel of their choice. They may be financially exhausted and the only valuable thing they have might be their “story.”

In Maxwell, the defendant was facing capital charges involving multiple robberies and murders, some with special circumstances. He was permitted to sell his life story by way of a fee agreement with numerous conflicts consents. This was an extremely detailed 19-page advance consent to potential conflicts. It was a total package, including all entertainment and commercial exploitation rights. Maxwell waived defamation and invasion of privacy claims. “Under the contract, defendant agreed that counsel could ‘(1) create damaging publicity to enhance exploitation value, (2) avoid mental defenses because, if successful, they might suggest [defendant’s] incapacity to make the contract, and (3) see [defendant] convicted and even sentenced to death for publicity value.’” (Id. at p. 611.)

The Supreme Court considered the Maxwell consent to be fully informed. It wasn’t a boilerplate form out of some manual. The consent must be detailed and explain the benefits and burdens to the client, so he or she can make an informed decision. As an observation, the more detailed and explicit the consent is, the more likely it will be valid. For a detailed article on consent drafting, read “Advice and Consents” Los Angeles Lawyer, June 2007, Vol. 30, No. 4.

As you can imagine, the Supreme Court struggled with the case: “We stress that our opinion connotes no moral or ethical approval of life story fee contracts. We have addressed only this narrow question: May a criminal defendant (here charged with capital crimes) be denied his right to representation by retained counsel simply because of potential conflicts or ethical concerns even when he has asserted, after extensive disclosure of the risks, that he wishes to proceed with his chosen lawyer and no others? Our answer is No.” (Maxwell, supra, 30 Cal.3d at p. 622.)

Some consider that life story fee contracts are “inherently prejudicial, unethical and against public policy.” They are condemned by the American Bar Association and are widely criticized because they could tempt a lawyer to “consciously or unconsciously” try the case in a manner that could be adverse to the client’s interests. Counsel’s economic motivations (to create publicity, not to raise certain defenses) may be directly adverse to a client’s needs, which may include a quiet simple plea bargain. However, according to Maxwell, a highly charged media matter, these facts fail to present an unconsentable conflict of interest. Note, the majority insisted they did not approve of “life story contracts” in general.

The Maxwell case should give you an indication of how broad a client’s right to consent is in California. Some authorities have suggested that it’s too broad and clients cannot consent to their own detriment (the late great Professor Fred Zacharias). However, there are some limitations and some conflicts are unconsentable.

For example, “as a matter of law a purported consent to dual representation of litigants with adverse interests at a contested hearing would” be unconsentable. Klemm v. Superior Court (1977) 75 Cal. App. 3d 893. “Such representation would be per se inconsistent with the adversary position of an attorney in litigation.” An attorney who sought to simultaneously represent clients with directly adverse interests in the same litigation would be automatically disqualified. City and County of San Francisco v. Cobra Solutions Inc. (2006) 38 Cal. 4th 839. The critical issue is whether the case involves “simultaneous” representation, which means acutely divided loyalty, the unconsentable type.

Sidebar ― Happy Holidays, see you in the New Year.

• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at