Concept
Related Conflict Rules
Literary and media rights about the representation (Rule 1.8(d))
Related Conflict Rules
Rule 1.8(d) bars a lawyer, before the representation concludes, from making or negotiating an agreement that gives the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.1 Earlier sections worked through that sentence element by element. Exam problems rarely arrive one rule at a time, though. The same story deal can be tested under two neighboring provisions, and a student who knows only the text of Rule 1.8(d) may miss a second basis for the answer or miss that a lawyer who never touched the case is bound as well.
The first connection runs to Rule 1.7(a)(2), the general rule for a lawyer's personal interests. A story deal is one recurring way a personal interest can limit a representation, so the specific rule and the general rule overlap. The next subsection explains why the profession wrote a separate rule anyway and how the two work together.
The second connection concerns who is bound. Colleagues in a firm share its income and its opportunities, so a prohibition that reached only the lawyer who signed the story agreement would be easy to avoid. The lawyer handling the case could leave the negotiating to a partner down the hall, and the incentive to dramatize and prolong the case would stay inside the firm. Rule 1.8(k) closes that gap by treating a prohibition on one lawyer as a prohibition on every lawyer associated in the firm.2 The second subsection shows how that extension applies to a literary rights deal.
The Rule 1.7(a)(2) Backstop
Rule 1.7(a)(2) finds a conflict whenever the lawyer's representation of a client would be materially limited by a personal interest of the lawyer.3 A lawyer who holds rights to a client's story has exactly that kind of interest, and the personal-interest rules of Rule 1.8 mostly overlap with Rule 1.7(a)(2) on such a deal.4 The overlap invites a question: if the general rule already reaches a story deal, why keep a separate rule for it?
The answer has two parts, and each is a job that a specific rule can do and a general standard cannot. The first job is to remind. A standard asking whether a personal interest will materially limit the representation is abstract, and a lawyer holding an attractive offer may never think to apply it. Rule 1.8 therefore names the recurring situations in which a lawyer's representation would be limited, or prohibited outright, because of the lawyer's personal interest.5 The second job is to set disclosure, consent, and imputation requirements that may differ from the usual ones under Rule 1.7(a)(2).6 For some situations the difference is total, because Rule 1.8 places them beyond client consent. The list includes gifts from clients under paragraph (c), media rights in the client's story under paragraph (d), financial assistance to a client in litigation under paragraph (e), and a proprietary interest in the subject of the representation under paragraph (i).7 Story rights belong to that group, and that is the weightier reason the specific rule exists.
A bright line suits story rights because of how a general standard operates. It works by case-by-case judgment: someone must decide, usually after the fact, whether a given interest materially limited a given representation, and if that judgment goes wrong the client has already lived with the consequences. For most personal interests that cost is tolerable, since the stake is modest or speculative, the facts vary widely, and the client can weigh the risk and accept it. A story deal differs on each point. The lawyer's stake is concrete and grows with the drama of the case, and, as the previous section explained, the client is poorly placed to judge how that stake will color advice at a plea offer or a settlement conference. Leaving the question open would invite argument over an outcome the profession can predict in advance, so the specific rule settles it once and takes consent out of the analysis.
The sister scenario shows the ordinary route working as designed: the general standard recognizes the conflict, and informed consent resolves it. A stem that puts a different personal interest in the same matter tests whether you can tell the two routes apart. A short sequence of questions sorts them reliably.
Run the sister and the producer through the steps and they separate. The sister is not a named Rule 1.8 situation, so the matter drops to step 4 and the consent route resolves it. The producer's option satisfies every element at step 3: the negotiation occurred during the representation, the lawyer would hold the rights, and the account rests on the case file. The agreement is therefore forbidden, and the seller's approval changes nothing.10 The client and the dispute are the same in both scenes. What moved the answer was whether Rule 1.8(d) names the interest and bars it from consent.
The general rule also works as a backstop in the other direction. Rule 1.8(d) reaches only an agreement that meets all of its elements, so a lawyer who has made no agreement, or whose account will not rest on information from the representation, escapes that rule without escaping the general one.11 A lawyer who has only privately decided to write a book about a pending case has made or negotiated nothing. If that plan begins to steer strategy toward the most dramatic outcome, the personal interest may materially limit the representation under Rule 1.7(a)(2), and the conflict then follows the ordinary route, with consent available if the general standard's other conditions are met.
Two opposite mistakes follow from losing track of this relationship. The first treats a mid-representation story deal as one more personal-interest conflict and concludes that carefully documented consent saves it. That skips a specific rule whose text contains no consent exception.12 The second treats every personal-interest conflict as barred because Rule 1.8 bars this one. That overlooks that Rule 1.8 lists particular situations and that most personal interests still run through the general rule and its consent route.
Imputation Within a Firm
Rule 1.8(k) extends the prohibitions of Rule 1.8 across an entire firm: "While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them."14 Imputation is the device of treating one lawyer's restriction as every colleague's, so that a limit placed on one person binds the whole group. The literary and media rights ban is paragraph (d) of Rule 1.8, which falls inside the range from (a) through (i), so it travels with the device.15 When the lawyer handling a client's matter may not make or negotiate a story-rights agreement before the representation concludes, no lawyer associated with that lawyer in the firm may do so either.
The reason follows from how a firm operates. Lawyers share the firm's income, and they also share its files, its conversations, and its knowledge of what each client matter holds. If the ban reached only the lawyer who personally handled the matter, that lawyer could stay clean on paper while a partner down the hall negotiated the story rights. The firm would collect the benefit through its shared income, and the lawyer in charge of the case would know that a colleague stood to profit from the way it ended. The pull toward a dramatic or drawn-out outcome, which Rule 1.8(d) exists to remove, would then reach the matter by a side door. Imputing the prohibition across the firm shuts that door, because no lawyer in the firm remains for whom the deal is permitted.
The partner's distance from the case is the fact an exam stem adds to tempt a no-violation answer, and it carries no weight. Ask whether the deal would be forbidden for the lawyer handling the matter. If it would, the colleague is bound by the same prohibition because the two are associated in a firm.16 The partner's lack of involvement drops out of the analysis, because the extension attaches to the firm relationship and not to who touched the file. The agreement itself must still satisfy the elements covered earlier, so the timing, the making or negotiating, the lawyer's rights, and the use of information from the representation are tested exactly as they would be for the associate.
The contrast shows what Rule 1.8(k) reaches. The extension operates among lawyers who are associated in the same firm, and the opening words of the rule make that association the condition for sharing the prohibition.17 A lawyer outside the firm is bound only by prohibitions that apply to that lawyer individually. A lawyer who writes from public reports also uses no information relating to the representation, so the information element of Rule 1.8(d) is missing as well.18 The extension also covers only paragraphs (a) through (i). The sex-with-clients rule, Rule 1.8(j), lies outside that range and is unusual among the personal-interest rules because the conflict it recognizes is not imputed to the other lawyers in the firm.19