T. Elizabeth McVicker, Aissa Wayne, and Kathryne Clark co-authored the article below. An abridged version of this article was published in the Orange County Lawyer Magazine, March 2005.
The lives of celebrities are both fascinating and challenging. When involved in a family law proceeding, celebrities face unique and serious issues, which tend to make the already difficult family law proceedings even more complex and perilous for celebrity clients. Hence, when representing a celebrity client, many issues exist for the average family law practitioner that might not otherwise arise. Below, are just but a few of the challenges that a conscientious practitioner must keep in mind when guiding and advising a celebrity through a high profile case in a family law proceeding.
When representing a celebrity client, a lawyer must be comfortable breaking away from usual attorney-client protocols. For example, celebrities may insist on a particular partner of the firm personally handling all aspects of a case including simple court appearances such as requests for continuances. Moreover, a celebrity may make enormous demands on the resources and personnel of the firm. This kind of personal catering to the celebrity’s preferences is important to assist the client through a very difficult time.
Another unique aspect of representing a celebrity involves utilizing effectively the plethora of professionals which assist the celebrity in daily life such as agents and managers. Oftentimes they can be of paramount assistance to the lawyer since they know many of the relevant facts, handle the celebrities schedule and pay the celebrities’ bills, such as attorney fees. Further, since the celebrity’s image is essentially the agent’s and manager’s livelihood, they will frequently want to be involved in the decision making. The lawyer must engender confidence in the celebrity’s support personnel to allow them to entrust him/her with their concerns. It is important for the lawyer to be sensitive to their concerns and to cultivate their loyalty and assistance to ensure cohesiveness, a united front and for the greater common good of the celebrity’s wellbeing. Nonetheless, while having these people as allies will make a lawyer’s job much easier, the lawyer must always insure that the case is not run by the agent and/or manager.
Additionally, the lawyer should also keep in mind that communications with the celebrity’s employees and agents and some of the experts hired by the lawyer are subject to the attorney-client privilege. Evidence Code å²?Upjohn Co. v. United States (1981) 449 US 383, 391-393; Mills Land & Water Co. v. Golden West Redining Co. (1986) 186 Cal.App.3d 116; People v. Gurule (2002) 28 Cal.App.4th 557.
In addition to managing the support personnel, the lawyer will have to keep an ever vigilant eye on how the case is affecting the celebrity’s image in the public and how the stream of information is being funneled to the media. Public relations consultants and firms may be invaluable to a lawyer to assist in handling this aspect of the case. They can assist the lawyer in devising a plan for not only the intentional dissemination of information to the media, but also in the event of a public relations crisis. Being prepared for such a crisis is well worth the time and energy in advance.
In addition to the celebrity’s public persona, a separate public relations consultant can assist the lawyer in developing the lawyer’s public persona. The public will look to the lawyer for guidance and insight as to how the celebrity will handle the case. Hence, to some extent, the lawyer is launched into show business him/herself. In this capacity, the lawyer may want to be perceived as a competent “force to be reckoned with” without appearing too overbearing. If the lawyer is not perceived as credible and competent, the lawyer may jeopardize the celebrity’s position since the celebrity is also being tried in the Court of Public Opinion. The public relations consultants can host mock media interviews with the lawyer and conduct market research into how to best handle troubling aspects of the case before the public. Unlike the lawyer, they should have years of experience handling public relations and can become an invaluable resource for the lawyer throughout the high profile case.
However, the lawyer must balance the plans of a public relations team with the rules limiting the information that the lawyer may convey to the media during a high profile case. California Rule of Professional Conduct 5-120 restricts, with some exceptions, what a lawyer may convey to the public during the course of a high profile case to matters that will not result in a, “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 5-120(b) goes on to list specific examples of items which a lawyer can safely convey to the public such as a request for assistance in obtaining evidence and information contained in the public record. Perhaps more important is subsection (c) to Rule 5-120, which allows a lawyer to make a statement designed to protect a client from the prejudicial effect of recent publicity not initiated by the client or the lawyer. In this way, a lawyer may collaborate with his/her and the client’s public relations consultants to devise a statement to address and diminish damage caused by recent adverse publicity.
Even unfounded and dismissed accusations levied against a celebrity in family court may damage a celebrity’s public image long after the family law case concludes. Therefore, one of the most effective methods of averting a public relations crisis is keeping unfavorable information private.
Generally, the Court will seldom close family law proceedings to the public or seal a family law file. CCP â´?Marriage of Lechowick (1998) 65 Cal.App 4th 1406; Estate of Hearst (1977) 67 Cal.App.3d 777. However, in high profile cases where celebrities are involved, a Court may elect to do so, such especially if presented with a Stipulated Confidentiality Order. The parties may enter into any number of stipulations providing for the privacy of documents, such as the redaction of documents and the submission of private documents to the Court to be withdrawn after the conclusion of the hearing.
Also, there are special code provisions providing for the confidentially and privacy of cases in certain circumstances. Family Code á´? provides, that “the court may, when it considers it necessary in the interests of justice and the persons involved, direct the trial of any issue of fact joined in a proceeding under this code to be private, and may exclude all persons except the officers of the court, the parties, their witnesses, and counsel”. Similarly, custody, emancipation and paternity proceedings may be sealed and closed to the public under Family Code à´? è¸?and æ´? Adoption of unmarried minor children proceedings may be closed to the public under Family Code æ±? (see also Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596). Further, proceedings in family conciliation court may be deemed closed to the public under Family Code è³?
Even if a Court will not close the proceedings or seal the file, Courts often times will seal particular documents, such as damaging declarations, to protect a celebrities’ reputation.
If the Court will not grant the privacy sought by high profile clients, there are other options available to preserve confidentially and privacy such as a “private” or “confidential” trial through a private judge. See Calfornia Rules of Court 244(g). Private Judges may afford high profile clients privacy and confidentiality while saving money and time. When a private judge is appointed, the “hearings” often occur in a private office without public notice, thereby effectively preventing the media from overseeing the details of the proceedings. This gives the parties much more control over what, if any, information is disseminated to the public.
Moreover, if the parties agree, they can participate in confidential dispute resolution through mediation which may be an effective tool for conflict management. Evidence Code ç±?9, á²? If they reach an agreement, they can enter into a confidential marital settlement agreement that is referenced, but not attached, to the Judgment. In such an event, the confidentiality will be preserved and the agreement will only be exposed if enforcement procedures become necessary. Alternatively, the final resolution may also be kept from the public’s eye through having two judgments. One judgment providing for the status termination, support and reserving on all other issues. The second judgment will contain the remainder of the issues and will only be filed if either party breaches the terms of the second judgment.
To gain a litigation advantage, the opposing side may fight an effort to close the proceedings to the public. However, the opposing side may be more willing to agree to a private judge or mediation if the celebrity agrees to pay for the associated expenses. Such efforts and concessions are well worth the privacy gained, especially when custody is at issue.
In addition to assuring privacy of the court proceeding, a lawyer must take decisive actions to assure that his/her file is kept safe in his/her office, such as keeping it under lock-and-key. The attorney should also have his/her employees sign a confidentiality agreement and employ a shredder to destroy extra copies of file documents. The lawyer should also assure that his/her computer database is secure from hackers and others who might gain access to the electronic data.
Other issues to consider involve the unusual property issues inherent in dividing a celebrity’s community estate. Even though the celebrity’s business manager may want to control the property issues, it may be advisable to hire a forensic accountant and appraisers as soon as possible to work with the business manager. These experts will be able to delve through the complexities of property division, including the valuation of artistic works, residuals and works in progress, and can testify about the value of the community estate, prepare a marital balance sheet, and complete sometimes complicated tracings.
Since celebrities often have homes in various states, a lawyer must consider which jurisdiction to select. In such a circumstance and although generally frowned upon, a bit of forum shopping may be strategically necessary. For example, if a celebrity has a home in New York and one in California, and especially if the celebrity rose to stardom during the marriage, forum shopping may be appropriate.
Celebrity goodwill is an example of how the law varies in different jurisdictions. In California, there is no controlling authority valuing celebrity goodwill as an asset. However, celebrity goodwill has been recognized in New York and New Jersey. Hence, a practitioner may elect to bring the action in California where the celebrity is not likely to be assessed with celebrity goodwill. It would be incumbent on the attorney to be abreast of the differences between bringing the case in various forums.
Furthermore, as with any client, once appropriate, a celebrity client will have to be advised to evaluate his/her estate plan in light of the changes inherent in a family law proceeding.
These and many other considerations must be carefully weighed by an attorney navigating the potentially tumultuous waters of representing a celebrity client. The attorney must give the matter due consideration and must carefully reflect upon the unique demands, issues and pitfalls of representing high profile cases. Co-authored by T. Elizabeth McVicker, Aissa Wayne, and Kathryne Clark, Beverly Hills, California