Elements of a Violation

Rule 1.8(d) packs four requirements into a single sentence, and a lawyer violates it only when all four are met. Before the representation concludes, the rule forbids a lawyer to make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.¹ Read in order, that text asks four questions of any fact pattern:

Did the lawyer act before the representation concluded?
Did the lawyer make or negotiate an agreement?
Does the agreement give the lawyer literary or media rights?
Is the portrayal or account based in substantial part on information relating to the representation?

The requirements are cumulative. Each is a condition of the prohibition, and conduct that misses any one falls outside Rule 1.8(d), however unattractive it looks. A stem about a lawyer and a book usually satisfies some elements plainly and fails one quietly, so the exam habit to build is to test each element separately and in order instead of asking whether the deal feels improper.

A failed element ends the inquiry under this rule only. Other rules, including the Rule 1.7(a)(2) backstop covered later in this chapter, may still reach the same conduct. The subsections below take the four requirements in turn, beginning with timing.

Timing of the Agreement

The first requirement sits in the rule’s opening words: “Prior to the conclusion of representation of a client.”² Those words confine the ban to the period in which the lawyer still acts for the client, so an agreement that Rule 1.8(d) forbids on one side of the line escapes the rule on the other. Timing is the easiest element to test in isolation, because the story, the rights, and the producer can stay fixed while only the date moves.

The line falls there because the danger it addresses lives only as long as the representation does. A lawyer who holds rights to the story has an incentive to generate the maximum publicity and suspense around the representation.³ That incentive can do harm only while the lawyer is still shaping how the matter unfolds: whether to settle, which witnesses to call, how much attention to invite. Once the representation concludes, no decision remains for the incentive to distort, and the rule has nothing left to guard.

A stem that hands you a signed producer agreement and asks whether it violates Rule 1.8(d) is really asking when the lawyer made or negotiated it.

The date alone moved the answer. Both agreements grant the same rights, would pay comparable sums, and would produce films that draw equally on the client’s file, so none of those facts can rescue the first lawyer or condemn the second. The common error is to hear “film deal” and start with the story’s content or the price, when the rule asks first whether the representation had concluded when the lawyer made or negotiated the agreement. A lawyer whose agreement fails the timing element escapes Rule 1.8(d), and only Rule 1.8(d).

The ABA’s 1971 standards for the prosecution and defense functions drew the line in different words. They called it unprofessional conduct for a lawyer, “prior to conclusion of all aspects of the matter giving rise to his employment,” to enter into “any agreement or understanding” with a client or a prospective client by which the lawyer acquires “an interest in publication rights.”⁴ That wording turns on the matter and its aspects, and it reaches understandings and prospective clients as well as formal agreements. The Model Rule’s text turns instead on the conclusion of the representation, and that is the language an exam answer applies.

Making or Negotiating

The second requirement sits in the rule’s verbs. Rule 1.8(d) forbids a lawyer, before the representation concludes, to “make or negotiate an agreement” giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.⁶ To make an agreement is to reach one, whether by signing a contract or by striking a deal the parties treat as binding. To negotiate is to bargain toward one by discussing price, exclusivity, or control of the project, whether or not the talks ever produce a deal. Because the rule names both, the violation can be complete before anything is signed, and a negotiation that collapses violates the rule just as a closed deal does.

The rule reaches negotiation because the temptation begins at the bargaining table. A lawyer bargaining for rights to the story is already weighing which outcomes make the story worth buying, and the incentive the rule fears, to generate maximum publicity and suspense, takes hold at that point.⁷ If only signed agreements counted, a lawyer could negotiate through the entire case and sign on the day the representation ends, and the incentive would have operated the whole time while the rule stayed silent. Covering negotiation closes that gap and makes the rule turn on what the lawyer does, not on whether a contract happens to exist.

The first stage of that scene marks the limit students tend to overread. A lawyer’s own thoughts about a future book, with no agreement and no talks, fall outside the rule because nothing has been made or negotiated.⁸ Rule 1.8(d) regulates the lawyer’s bargaining, and idle speculation does not trigger it. Silence under this rule is not clearance, however: an account built from client information raises confidentiality concerns of its own,⁹ and those are separate from the question Rule 1.8(d) asks.

A lawyer can make such an agreement without ever meeting a publisher by building it into the engagement itself. The retainer is where the lawyer holds the pen, and attorney-client contracts draw heavy scrutiny for that reason: the lawyer who drafts the terms sits across from a client who is asked to accept them.¹⁰ Ambiguity in the document will nearly always be construed against the lawyer-drafter.¹¹

The same engagement letter without the cooperation clause raises no Rule 1.8(d) issue, since nothing in it concerns the story. The clause turns an ordinary retainer into an agreement about media rights, and the reduced fee is the bargain that makes it an agreement rather than a hope. The client’s willingness to sign does not change the analysis, a point taken up in the later section on why consent cannot cure this conflict. Read every stem that mentions a lawyer and a book for the lawyer’s acts: a private thought is outside the rule, while a lunch with a publisher or a clause in the retainer is conduct the rule reaches.

Rights Held by the Lawyer

The third requirement sits in the object of the forbidden agreement. Rule 1.8(d) reaches only an agreement “giving the lawyer literary or media rights to a portrayal or account” based in substantial part on information relating to the representation.¹³ Literary or media rights are the rights to turn that account into a book, film, series, or article, so this element asks who ends up holding them. The words “the lawyer” fix the beneficiary on one side of the table. The element is met when the story’s commercial value flows to the lawyer, and it fails when the value stays with the client or goes to a third party in whom the lawyer has no stake. Descriptions of the rule draw the same boundary: a publication agreement is prohibited only where it gives the lawyer herself the “literary or media rights” to a portrayal based “in substantial part on information relating to the representation.”¹⁴

The rule targets the lawyer’s holdings because the danger comes from the lawyer’s own financial interest. A lawyer who holds such rights has an incentive to generate maximum publicity and suspense around the representation, and an account of the case also invites disclosure of confidential information.¹⁵ When the client alone sells the story and the lawyer takes no share, the lawyer’s income depends on the legal engagement alone, so advice about a plea or a trial is not tilted by the value of a manuscript. Limiting the rule to rights held by the lawyer therefore aims at the point where the lawyer’s economic interest becomes entangled with the client’s, and it leaves the client’s own dealings outside the rule.

The grant need not be labeled a transfer of rights to the lawyer. The Model Rules treat a direct or indirect grant of literary or media rights to the lawyer as a forbidden financial arrangement, because a stake that reaches the lawyer by a roundabout route creates the same incentive as one that arrives directly.¹⁶ A promise of exclusivity is a common route. When a client promises to cooperate only with the lawyer on any book or film about the case, as in the retainer clause above, every publisher or producer who wants the story must deal with the lawyer, who then controls who tells it and on what terms. That control can operate as an indirect grant even if no buyer has yet appeared.

A stem that says a client sold a story invites the opposite error, which is to flag the lawyer because a story is for sale. The only question this element asks is whether the rights run to the lawyer.

The two scenes share a sensational case, a published account, and a representation still under way, so the holder of the rights is the only fact that separates a violation from a client’s private business. The client’s deal does not release the lawyer from every other duty, and later sections take up the rules that govern what the lawyer may share and how the lawyer’s personal interests are policed. Those are separate questions from the one this element asks. Wrong answer choices on this topic often describe the client dealing with a publisher, a ghostwriter, or a producer, and the right response is to ask whether anything in the arrangement gives the lawyer rights, directly or indirectly.

Information From the Representation

The fourth requirement sits in the rule’s last words. Rule 1.8(d) reaches only an agreement giving the lawyer rights to a portrayal or account “based in substantial part on information relating to the representation.”¹⁸ Those words tie the ban to a particular client matter, and descriptions of the rule draw the same boundary when they say a publication agreement is prohibited only where it gives the lawyer the rights to such a portrayal.¹⁹ A fact pattern can satisfy timing, conduct, and rights and still fall outside the rule if the work is made from something other than the representation.

Both reasons for the prohibition depend on the work being drawn from a client’s matter. The first is the lawyer’s financial stake: the account’s value depends on what happens in the case, so a lawyer who holds the rights has an incentive to generate maximum publicity and suspense around the representation. The second is confidentiality: an account built from the matter invites the disclosure of confidential information.²⁰ A work unconnected to any client creates neither problem. It gives the lawyer no stake in how any case is handled and calls for no client information, so a ban on it would protect nobody and would only stop lawyers from writing on other subjects.

The phrase “information relating to the representation” is broad. The case file, the client’s private statements to the lawyer, and the facts of the matter all fit within it. The rule also speaks of a “portrayal or account,” which is wider than a straight nonfiction narrative.²¹ The test looks at what the work is based on, so a dramatization or a novel that changes names and places is covered when its source is the representation, because relabeling the story as fiction leaves the source material and the lawyer’s stake exactly where they were.

A stem in which a lawyer signs a book or film contract during a representation is therefore asking what the work is made of. When it is made of something else, the element fails.

A contract with the same publisher, signed on the same day, to turn that tax case into a screenplay produces the opposite result.

Between the two scenes only the source of the work changed. The publisher, the timing, and the lawyer’s ownership of the rights were the same, so the information element decided the outcome. The element is also fact-sensitive. The rule says “in substantial part” and supplies no percentage, so a work that draws on a client matter for only some of its content, such as a career memoir with a single chapter taken from a pending case, calls for a judgment about how much of the account rests on the representation. Exam stems usually resolve the question by showing that the work either is the client’s story or has nothing to do with any client.

A work that fails this element escapes Rule 1.8(d), and only Rule 1.8(d). A lawyer who writes an unrelated book remains subject to the separate rules on client information and on the lawyer’s personal interests, which later sections take up.