Counsel Concerns

Conflicts Addressed In Defending Copyright Suit

Indemnification provisions are commonly used in entertainment industry contracts. This includes authors indemnifying companies in copyright disputes that may arise over material an author submits to a company for use. The frequency of copyright infringement claims by plaintiffs claiming that their materials were stolen by defendant writers and companies raises the issue of whether lawyers representing such defendants may face conflicts of interest.

Under the Rule DR 5-105 of the American Bar Association Model Code of Professional Responsibility, a lawyer generally can't represent multiple clients in a case in which the lawyer's independent professional judgment will or will likely be adversely affected by representing parties with differing interests. The rule was tested in a recent case in which plaintiff Marie Flaherty claimed in Manhattan federal district court that writer Jason Filardi and the Walt Disney Co. infringed on her screenplay “Amoral Dilemma” with the film “Bringing Down the House.” Both Filardi and the studio were represented in the case by the law firm of Quinn Emanuel Urquhart Oliver & Hedges.

Flaherty moved to disqualify the firm from representing Filardi. Flaherty first argued that the defendants were “pointing the finger of liability” at each other by both raising the affirmative defense of lack of causation. This defense postured that any alleged injuries to Flaherty had been caused in whole or in part by “others.” But the district court noted the vagueness of the word “others,” and that no cross-claims had been filed or were expected to be between Filardi and Disney. Flaherty v. Filardi, 03 Civ. 2167.

Flaherty next focused on the indemnification obligation in Filardi's agreement with Disney by arguing “any statement [Filardi] makes will be detrimental to [Disney]. Therefore, Quinn Emanuel would have to cross examine its own client, [Filardi], in order to defend and prosecute claims and contractual liabilities that [Filardi] owes to [Disney].” But here the district court emphasized that the defendants had raised an independent creation defense, rather than conceding any infringement. Thus, the court stated, “This uniform theory of defense simply does not create any conflict between the co-defendants.”

Finally, Flaherty argued that under 22 N.Y.C.R.R. Sec. 1200.45, Quinn Emmanuel created an appearance of impropriety by jointly representing the defendants. The court again disagreed with Flaherty, noting that indemnitors and indemnities are commonly represented by joint counsel. “In any event, however,” the court added, “in the absence of an actual conflict, the mere appearance of impropriety is insufficient to constitute grounds for disqualification of counsel.”

It isn't unusual for celebrities to be faced with claims by or demands from fans and others with whom they have interacted. The Court of Appeal of California, Second Appellate District, Division Five, has issued a ruling that demonstrates that it won't be easy for a lawyer who represents such fans and other individuals to have a case filed in California ' by a targeted celebrity alleging illegal conduct by the lawyer ' dismissed as privileged litigation communications. Flatley v. Mauro, 121 Cal. App. 4th 1523.

Attorney D. Dean Mauro represented Tyna Marie Robertson, who claimed that she had been raped by entertainer Michael Flatley in Flatley's Las Vegas hotel suit. Mauro had sent a letter to Flatley's counsel demanding money in order for Robertson to not pursue criminal prosecution of the matter. Mauro also told Flatley's lawyers that he would “go public” with the rape accusation if “sufficient” payment wasn't made. When Flatley refused to make payment, Robertson filed a civil complaint in Illinois, where she resided, and told the media that Flatley had raped her.

Flatley then sued Mauro and Robertson in Los Angeles Superior Court for civil extortion, intentional infliction of emotional distress and wrongful interference with perspective economic advantage. The superior court subsequently denied Mauro's special motion to strike the complaint under Calif. Code of Civil Procedure Sec. 425.16, also known as the anti-SLAPP (strategic lawsuits against public participation) statute.

Section 425.16 is intended to allow for dismissal of meritless suits meant to chill a defendant's First Amendment rights. The statute states that a suit that arises “from any act … in furtherance of the … right of petition or free speech” related to a public issue should be dismissed unless a court concludes it is probable that the plaintiff will prevail. Mauro argued that the issue of whether his conduct was illegal should be considered in the latter part of the test, which places the burden on Flatley as plaintiff in the California action. The court of appeal noted, however, that “if it can be verified 'as a matter of law' that the defendant's speech or conduct is not protected, for example it is illegal, then the burden does not shift to the plaintiff to make the minimal merits showing.”

The court continued: “Mr. Mauro threatened criminal prosecution or publication of defamatory matter about the rape as a means of obtaining leverage in the proposed civil action if 'seven figures' was not paid. … Federal courts have consistently held that extortion is not a constitutionally protected form of speech. … Likewise, in California, speech which qualifies as a criminal threat is not constitutionally protected.”

Conflicts Addressed In Defending Copyright Suit

Indemnification provisions are commonly used in entertainment industry contracts. This includes authors indemnifying companies in copyright disputes that may arise over material an author submits to a company for use. The frequency of copyright infringement claims by plaintiffs claiming that their materials were stolen by defendant writers and companies raises the issue of whether lawyers representing such defendants may face conflicts of interest.

Under the Rule DR 5-105 of the American Bar Association Model Code of Professional Responsibility, a lawyer generally can't represent multiple clients in a case in which the lawyer's independent professional judgment will or will likely be adversely affected by representing parties with differing interests. The rule was tested in a recent case in which plaintiff Marie Flaherty claimed in Manhattan federal district court that writer Jason Filardi and the Walt Disney Co. infringed on her screenplay “Amoral Dilemma” with the film “Bringing Down the House.” Both Filardi and the studio were represented in the case by the law firm of Quinn Emanuel Urquhart Oliver & Hedges.

Flaherty moved to disqualify the firm from representing Filardi. Flaherty first argued that the defendants were “pointing the finger of liability” at each other by both raising the affirmative defense of lack of causation. This defense postured that any alleged injuries to Flaherty had been caused in whole or in part by “others.” But the district court noted the vagueness of the word “others,” and that no cross-claims had been filed or were expected to be between Filardi and Disney. Flaherty v. Filardi, 03 Civ. 2167.

Flaherty next focused on the indemnification obligation in Filardi's agreement with Disney by arguing “any statement [Filardi] makes will be detrimental to [Disney]. Therefore, Quinn Emanuel would have to cross examine its own client, [Filardi], in order to defend and prosecute claims and contractual liabilities that [Filardi] owes to [Disney].” But here the district court emphasized that the defendants had raised an independent creation defense, rather than conceding any infringement. Thus, the court stated, “This uniform theory of defense simply does not create any conflict between the co-defendants.”

Finally, Flaherty argued that under 22 N.Y.C.R.R. Sec. 1200.45, Quinn Emmanuel created an appearance of impropriety by jointly representing the defendants. The court again disagreed with Flaherty, noting that indemnitors and indemnities are commonly represented by joint counsel. “In any event, however,” the court added, “in the absence of an actual conflict, the mere appearance of impropriety is insufficient to constitute grounds for disqualification of counsel.”

It isn't unusual for celebrities to be faced with claims by or demands from fans and others with whom they have interacted. The Court of Appeal of California, Second Appellate District, Division Five, has issued a ruling that demonstrates that it won't be easy for a lawyer who represents such fans and other individuals to have a case filed in California ' by a targeted celebrity alleging illegal conduct by the lawyer ' dismissed as privileged litigation communications. Flatley v. Mauro , 121 Cal. App. 4th 1523.

Attorney D. Dean Mauro represented Tyna Marie Robertson, who claimed that she had been raped by entertainer Michael Flatley in Flatley's Las Vegas hotel suit. Mauro had sent a letter to Flatley's counsel demanding money in order for Robertson to not pursue criminal prosecution of the matter. Mauro also told Flatley's lawyers that he would “go public” with the rape accusation if “sufficient” payment wasn't made. When Flatley refused to make payment, Robertson filed a civil complaint in Illinois, where she resided, and told the media that Flatley had raped her.

Flatley then sued Mauro and Robertson in Los Angeles Superior Court for civil extortion, intentional infliction of emotional distress and wrongful interference with perspective economic advantage. The superior court subsequently denied Mauro's special motion to strike the complaint under Calif. Code of Civil Procedure Sec. 425.16, also known as the anti-SLAPP (strategic lawsuits against public participation) statute.

Section 425.16 is intended to allow for dismissal of meritless suits meant to chill a defendant's First Amendment rights. The statute states that a suit that arises “from any act … in furtherance of the … right of petition or free speech” related to a public issue should be dismissed unless a court concludes it is probable that the plaintiff will prevail. Mauro argued that the issue of whether his conduct was illegal should be considered in the latter part of the test, which places the burden on Flatley as plaintiff in the California action. The court of appeal noted, however, that “if it can be verified 'as a matter of law' that the defendant's speech or conduct is not protected, for example it is illegal, then the burden does not shift to the plaintiff to make the minimal merits showing.”

The court continued: “Mr. Mauro threatened criminal prosecution or publication of defamatory matter about the rape as a means of obtaining leverage in the proposed civil action if 'seven figures' was not paid. … Federal courts have consistently held that extortion is not a constitutionally protected form of speech. … Likewise, in California, speech which qualifies as a criminal threat is not constitutionally protected.”