Applying the Rule

Applying the Rule

Model Rule 1.8(d) supplies the whole test in one sentence: "[p]rior to the conclusion of representation of a client, a lawyer shall not 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 slowly, that sentence is a four-question checklist. When did the lawyer act? Did the lawyer make or negotiate an agreement? Does the agreement give the lawyer the literary or media rights? Is the portrayal or account based in substantial part on information relating to the representation? A violation requires a yes to all four, and a no at any step ends the inquiry under this rule. The text asks nothing about whether the client approved or how the matter came out, so those facts do not enter the analysis.

Each question gets a yes. The lawyer signed in the middle of discovery, still deciding how hard to press depositions and whether to entertain a settlement, so the act came before the representation concluded. Signing the option is making an agreement. The option vests the exclusive rights in the lawyer, so the lawyer is the holder. The documentary draws on the file and the client interviews, so it is based in substantial part on information relating to the representation. All four elements are present, and the violation occurred when the lawyer signed.²

Now change one fact at a time and watch which question flips. The first fact to change is the date.

The second lawyer made and negotiated the agreement after the representation concluded, so the timing question gets a no and the inquiry under this rule stops there.³ The date that counts is the date of the making or negotiating, not the date of signing or of release. A lawyer who opens talks with the studio during the case and signs the day after the engagement ends has already negotiated the agreement before the representation concluded, and the later signature does not erase that. Likewise, a contract signed during the case with a release date set for after the verdict was still made during the representation.

The next fact to change is who holds the rights.

The case is ongoing, and the film would draw on the case, but nothing in the deal gives the lawyer literary or media rights. The rule reaches an agreement "giving the lawyer" those rights, so a client's own sale of the client's story falls outside it.⁴ If the whistleblower's contract also handed the lawyer a share of the rights, the third question would flip to yes and the violation would follow.

The lawyer who wrote the agreement and put it to the client faces one further point on this question. Attorney-client contracts are subject to fairly heavy regulation and scrutiny, and any ambiguity in one will nearly always be construed against the lawyer-drafter.⁵ A lawyer-drafted clause that leaves it unclear whether the lawyer shares in the media rights is therefore not one the lawyer should expect to see read in the lawyer's favor.

The fourth question checks the instinct to mark a violation whenever a book or film contract appears mid-case.

The guide fails the fourth question. It is not a portrayal or account based in substantial part on information relating to the representation, so the rule does not reach it even though the lawyer holds the rights and signed mid-case.⁶ Compare a second pairing.

This work satisfies the fourth question. The rule asks where the portrayal comes from, not what it is called, and renaming the characters changes the label while leaving the source where it was.⁷ The text says "in substantial part" and gives no percentage, so a work that borrows only lightly from a client matter calls for a judgment about how much of it rests on the representation.

Two variables remain that the checklist never asks about.

The violation stands. The text contains no consent exception, so a signed writing after full disclosure answers a question the rule does not ask. The favorable settlement is equally beside the point: the agreement was made during the representation, and the rule forbids making it, whatever came afterward.⁸

A last exam trap concerns how long the prohibition lasts. Answer choices tend to offer two opposite descriptions. One treats Rule 1.8(d) as a permanent bar, so that a lawyer may never acquire rights to an account of a former client's matter. The other treats the end of the representation as a release from every limit on the lawyer. The text supports the first description in neither direction. Its opening words confine the prohibition to the period before the representation concludes, so it applies until the representation is completed and not after.⁹ The permanent-bar choice therefore misreads the rule. The release-from-everything choice claims more than the rule says: Rule 1.8(d) speaks only to the period before conclusion, so a lawyer who clears it has answered only the question this rule asks.