Representing a Celebrity Client

The Internet and media are replete with stories about famous people getting divorces, but the stories often omit salient information. The divorcing parties could be well-known sports figures, actors, musicians, politicians, international financiers, writers or producers. Frequently, we hear the news after the conclusion of the case, and only sometimes do we learn the name of the attorneys. (Of course, to us practitioners, that is of great interest!) Often, we do not know the outcome of the case. The famous clients' net worth, income and the details of their investments are never publicly revealed. Custody is not disclosed. It is all kept private.

How is that accomplished? The representation of such an individual requires some special considerations.

One approach is to avoid the spectacle of court altogether, through the utilization of a mediator or an arbiter. If it is an extremely complex case, as most of these are, each party most likely will have its own forensic expert with knowledge of the celebrity's particular industry, as well as other advisers, counsel, managers, agents, etc. An intellectual property attorney may be needed, to value an invention, for example.

The client may request that advisers, translators, agents and similar individuals attend meetings. When the team meets, the client needs to be made fully aware that the communications, which take place when someone other than the lawyer or lawyer's retained expert are present, are not privileged. Nevertheless, there is a very strong benefit to having the entire team present to plan a strategy and discuss fact analysis. In this way, the responsibility for decision-making is shared by the group and owned by the group. It is not the attorney's decision alone but that of the entire group, with many of whom the client may have long and established relationships.

How to Keep a Private Agreement Private

An additional benefit may be gained outside the formal court process, by utilizing the services of a discovery master. All of this further expense requires the agreement of the parties and counsel. In addition to a Confidentiality Agreement, the terms and conditions, roles, and other pertinent details relating to the professionals involved must be fully defined in written agreements. A mediator works to broker an agreement. An arbiter decides a case. The parties can agree to a hybrid, so long as all aspects are agreed to by counsel and the parties. Be sure the parties fully understand the impact of their out-of-court resolution. For example, if it is arbitration, is it binding and appealable? If so, under what rules or standard? Is it appealable within the courts or has another method been established such as the selection of another legal professional or two to be able to review a determination? Be sure that the client is comfortable with the process and has authorized it by signing the terms of the agreement. Note that if the case is resolved via arbitration/mediation, a Judgment of Divorce in New Jersey, for example, can be entered and filed without attaching the Agreement. This keeps the entire matter completely private except as to the fact that the parties were divorced.

The case that is not handled in this fashion still is entitled to a certain level of privacy. First of all, the attorney can simply refuse to comment. Your ultimate commitment is obviously to your client's best interests, which in all likelihood is to protect his or her privacy.

Sealing Records

By way of example, New Jersey Court Rule 1:38-11 provides that a Court Order may be sealed only if “good cause” exists. There are no absolutes as to what is considered “good cause.” The case of Frankl v. Goodyear Tire, 181 N.J. 1 (2004), provides a mechanism for sealing documents. Theoretically, documents can be sealed by the parties through a Consent Order; however, due to First Amendment concerns, the court must still make a finding of “good cause” to justify sealing the documents. Therefore, a Consent Order that was entered into without the finding of the requisite “good cause” by the court could be deemed null and void and unenforceable, thus defeating the parties' intention of preventing their Agreement from becoming public.

The New Jersey Court Rules were amended effective Sept. 1, 2009, relative to the unsealing of court records. Specific reference is made to New Jersey Court Rule 1:38-12, which provides that “[a] record that has been sealed by order of the court may be unsealed upon motion by any person or entity. The proponent for continued sealing shall bear the burden of proving by a preponderance of the evidence that good cause continues to exist for sealing the record.” In light of the recency of the amendment, no case law yet exists that in any way water down the clear meaning of this Court Rule.

The good cause required by the Court Rule is a two-pronged showing; first, that disclosure is likely to cause a clearly defined and serious injury and, second, that the individual interest and privacy substantially outweighs the presumption of open access. The authorization for sealing a record applies to the Family Part pursuant to New Jersey Court Rule 5:3-2(b).

The impetus for the amendment to the Court Rules was the Nov. 29, 2007 Report of the Supreme Court Special Committee on Public Access to Court Records. The report was submitted to Chief Justice Stuart Rabner by the Chair of the Supreme Court Special Committee on Public Access to Court Records, authored by Justice Barry Albin.

Justice Albin's letter submission indicates that the “Committee's recommendations include a revised, user-friendly Rule 1:38 that begins with the presumption that court records are open to the public, and codifies in one place the exceptions to that general rule.” Justice Albin continued, saying that the “Committee debated the wisdom and merits of the continued bulk release of case docket information, but ultimately concluded that the public's right to know overrides concerns about the potential misuse of such information.”

The Report made specific recommendations as it relates to the Family Court. Page 41 of the report states, “the Committee agreed that matrimonial and non-dissolution court records should remain presumptively open and that existing mechanisms for sealing records and closing courtrooms are sufficient to protect the interests of children.”

In terms of sealing records in the Family Part, the new Rule 1:38-12 squarely places the burden on the party seeking to keep records sealed consistent with the recommendations of the Committee. The Committee states, on page 44 of the report, “[a] discussion of the criteria and procedure for sealing court records leads inevitably to the question of unsealing such records. Proposed Rule 1:38-11 establishes the standards for such action placing on the proponent for continued sealing the burden of showing, by a preponderance of the evidence, that good cause still exists to keep the record sealed.” Citing to Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356 (1995).

In the Courts

Although there is a dearth of case law interpreting the amended Rule 1:38, in 2009 Derek Freed, Esq., authored an article published in The Family Lawyer, the monthly publication of the New Jersey State Bar Association-Family Law Section. Mr. Freed's article opines that “Marital Settlement Agreements (submitted to the court as part of a post-judgment application) also present numerous problems. Counsel will need to carefully review the agreements to ensure that all CPIs are removed.” (CPIs are Confidential Personal Identifiers.) As such, but for the redacting of any Confidential Personal Identifiers, divorce agreements can be obtained by anyone as an open court record.

A Property Settlement Agreement or Matrimonial Settlement Agreement does not fall into any of the enumerated categories as set forth in Rule. 1:38-3, which defines what court records are excluded from public access.

Lawsuits are filed in a public forum. One of our basic rules of court requires that court proceedings be conducted openly unless otherwise provided by rule or statute. R. 1:2-1. Reviewing a history of open government, the New Jersey Supreme Court has described open judicial proceedings as “the cornerstone of a democratic society.” Tarus v. Borough of Pine Hill, 189 N.J. 497,507, 916 A.2d. 1036 (2007) (citing 1 Jermey Bentham, Rationale of Judicial Evidence, 524 (London, 1827). Privacy interests give way to the public's right to know the business of the courts, with exceptions not relevant here primarily applicable in the Family Division.

The Public's Right to Know

Even when neither party is a government agency, the public has the right to court documents filed in civil lawsuits. Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 662 A.2d. 546 (1995); Zuckerman v. Piper Pools, Inc., 256 N.J. Super. 622, 628-29, 607 A.2d. 1027 (App. Div.) certif. denied, 130 N.J. 394, 614 A.2d. 617 (1992); Asbury Park Press v. Monmouth County, 406 N.J. Super. 1, 9 (App. Div. 2009), aff'd 201 N.J. 5 (2010).

Rule 1:38 was not intended to create a tiered system where the rich could have a private court system by agreement and those without wealth could not. The idea that secrecy could be obtained without a showing of serious injury or a need for privacy runs counter to the Rule. A clear presumption as set forth in this Rule favors openness for the very sake of the public's right to know and to have faith in an open judicial system. Such was the intent of our founding fathers; to have a system of open access, not one that is opaque. It is the presence of consistency and even-handedness that make our system as fair as possible. That presence necessitates an open system, which the New Jersey Supreme Court has found. Consequently, a celebrity's privacy can only be maintained by the exercise of discretion and keeping the divorce out of the court system. An attorney can make an application seeking to seal the file, but it is subject to an interested party or the media making an application for release of the file. Again, if the only documents filed in court are a Complaint, Answer and Counterclaim, and if a Judgment of Divorce is granted, the public only knows a Complaint has been filed.

Discovery

Assets acquired before the marriage that grew during the union would have some marital component, if the growth was active. Assets accumulated during the marriage, which grew during that time, are obviously subject to equitable distribution. Assets that were created during the marriage and continue to grow after the marriage may be subject to equitable distribution under certain circumstances, and there are various arguments that can be addressed regarding the growth of those assets.

International discovery is time-consuming and difficult. On rare occasions, it is necessary to travel to conduct discovery. For example, a concert performer who performs all over the country and the world has many contracts, and if they are in foreign languages, they need to be translated. Use of the authorization to release and translate the documents, rather than trying to subpoena documents out of state and country, may be a more expeditious approach. The client's authorization for the release of information can be obtained by the mediator/arbiter/discovery master or the State Court, if necessary.

When English is not a client's primary language, the attorney needs to send a copy of all correspondence and all pleadings in the client's native tongue, as well as in English. Computer programs, as most of you probably know, exist for translation and can be utilized. Obviously all important documents should be translated by a certified translator.

Claims for Support

The celebrity client does not live the way a mediator, arbiter or judge lives. It is important to paint a picture of the life of the client and the type of lifestyle that he/she has been accustomed to living, especially if making a claim for support. While lifestyle analysis is extremely important, even if there is significant wealth involved, analysis may not be necessary if the case does not involve alimony and equitable distribution.

Make sure that all the assets are accounted for, including items such as royalties. There are specific ways of projecting royalties. In addition to various business interests, there is the issue of valuing a partially completed book or movie and determining the marital portion for purposes of distribution. Even if the book has not yet been published, attorneys need to make sure ' if they represent the writer's spouse in that situation ' that the spouse understands that there can be value to the entity. It is tempting to tell the client to waive equitable distribution of some incomplete entity in return for keeping other assets, but there should be some way of determining value so that the client is not waiving an interest to the next great movie, book or invention without a reasonable and proper offset.

Conclusion

Verify that you have the time to handle the celebrity clients and that you have the support staff to follow up with regard to discovery issues. As we know, there can be a time lapse between significant work and significant payment. Accordingly, all the members of the firm ' not only the matrimonial practitioner ' need to understand the situation in advance. Your staff also needs to understand the celebrity client and accommodate the celebrity client's needs. For example, are there certain specific times when the client can be reached? Ensure that everyone appreciates who your client is and that the celebrity client is comfortable with your office. Remember that the celebrity client is coming to you for assistance with regard to his/her problem. This is not a time for autograph signing, pictures and discussions about other issues. It is best to stay focused on the case in order to handle the matter. Should entertaining be something that the client elects to do, then join in, but try not to turn the relationship into something other than what it clearly is. It is a business relationship and a relationship of trust, where you serve a specific function with regard to the client, celebrity or not.

Lynne Strober, a member of this newsletter's Board of Editors, is a Partner at Mandelbaum Salsburg, West Orange, NJ. She specializes in Family Law and co-chairs the firm's Family Law Department. David Carton is a Partner in the firm and represents clients in all aspects of family law, including divorce, domestic violence, civil unions, custody, parenting time, child support, alimony and division of assets. Judge Michael Diamond, Of Counsel with the firm, is a retired member of the New Jersey Superior Court. He is a member of the Executive Committee of the Family Law Section of the New Jersey State Bar Association.

The Internet and media are replete with stories about famous people getting divorces, but the stories often omit salient information. The divorcing parties could be well-known sports figures, actors, musicians, politicians, international financiers, writers or producers. Frequently, we hear the news after the conclusion of the case, and only sometimes do we learn the name of the attorneys. (Of course, to us practitioners, that is of great interest!) Often, we do not know the outcome of the case. The famous clients' net worth, income and the details of their investments are never publicly revealed. Custody is not disclosed. It is all kept private.

How is that accomplished? The representation of such an individual requires some special considerations.

One approach is to avoid the spectacle of court altogether, through the utilization of a mediator or an arbiter. If it is an extremely complex case, as most of these are, each party most likely will have its own forensic expert with knowledge of the celebrity's particular industry, as well as other advisers, counsel, managers, agents, etc. An intellectual property attorney may be needed, to value an invention, for example.

The client may request that advisers, translators, agents and similar individuals attend meetings. When the team meets, the client needs to be made fully aware that the communications, which take place when someone other than the lawyer or lawyer's retained expert are present, are not privileged. Nevertheless, there is a very strong benefit to having the entire team present to plan a strategy and discuss fact analysis. In this way, the responsibility for decision-making is shared by the group and owned by the group. It is not the attorney's decision alone but that of the entire group, with many of whom the client may have long and established relationships.

How to Keep a Private Agreement Private

An additional benefit may be gained outside the formal court process, by utilizing the services of a discovery master. All of this further expense requires the agreement of the parties and counsel. In addition to a Confidentiality Agreement, the terms and conditions, roles, and other pertinent details relating to the professionals involved must be fully defined in written agreements. A mediator works to broker an agreement. An arbiter decides a case. The parties can agree to a hybrid, so long as all aspects are agreed to by counsel and the parties. Be sure the parties fully understand the impact of their out-of-court resolution. For example, if it is arbitration, is it binding and appealable? If so, under what rules or standard? Is it appealable within the courts or has another method been established such as the selection of another legal professional or two to be able to review a determination? Be sure that the client is comfortable with the process and has authorized it by signing the terms of the agreement. Note that if the case is resolved via arbitration/mediation, a Judgment of Divorce in New Jersey, for example, can be entered and filed without attaching the Agreement. This keeps the entire matter completely private except as to the fact that the parties were divorced.

The case that is not handled in this fashion still is entitled to a certain level of privacy. First of all, the attorney can simply refuse to comment. Your ultimate commitment is obviously to your client's best interests, which in all likelihood is to protect his or her privacy.

Sealing Records

By way of example, New Jersey Court Rule 1:38-11 provides that a Court Order may be sealed only if “good cause” exists. There are no absolutes as to what is considered “good cause.” The case of Frankl v. Goodyear Tire , 181 N.J. 1 (2004), provides a mechanism for sealing documents. Theoretically, documents can be sealed by the parties through a Consent Order; however, due to First Amendment concerns, the court must still make a finding of “good cause” to justify sealing the documents. Therefore, a Consent Order that was entered into without the finding of the requisite “good cause” by the court could be deemed null and void and unenforceable, thus defeating the parties' intention of preventing their Agreement from becoming public.

The New Jersey Court Rules were amended effective Sept. 1, 2009, relative to the unsealing of court records. Specific reference is made to New Jersey Court Rule 1:38-12, which provides that “[a] record that has been sealed by order of the court may be unsealed upon motion by any person or entity. The proponent for continued sealing shall bear the burden of proving by a preponderance of the evidence that good cause continues to exist for sealing the record.” In light of the recency of the amendment, no case law yet exists that in any way water down the clear meaning of this Court Rule.

The good cause required by the Court Rule is a two-pronged showing; first, that disclosure is likely to cause a clearly defined and serious injury and, second, that the individual interest and privacy substantially outweighs the presumption of open access. The authorization for sealing a record applies to the Family Part pursuant to New Jersey Court Rule 5:3-2(b).

The impetus for the amendment to the Court Rules was the Nov. 29, 2007 Report of the Supreme Court Special Committee on Public Access to Court Records. The report was submitted to Chief Justice Stuart Rabner by the Chair of the Supreme Court Special Committee on Public Access to Court Records, authored by Justice Barry Albin.

Justice Albin's letter submission indicates that the “Committee's recommendations include a revised, user-friendly Rule 1:38 that begins with the presumption that court records are open to the public, and codifies in one place the exceptions to that general rule.” Justice Albin continued, saying that the “Committee debated the wisdom and merits of the continued bulk release of case docket information, but ultimately concluded that the public's right to know overrides concerns about the potential misuse of such information.”

The Report made specific recommendations as it relates to the Family Court. Page 41 of the report states, “the Committee agreed that matrimonial and non-dissolution court records should remain presumptively open and that existing mechanisms for sealing records and closing courtrooms are sufficient to protect the interests of children.”

In terms of sealing records in the Family Part, the new Rule 1:38-12 squarely places the burden on the party seeking to keep records sealed consistent with the recommendations of the Committee. The Committee states, on page 44 of the report, “[a] discussion of the criteria and procedure for sealing court records leads inevitably to the question of unsealing such records. Proposed Rule 1:38-11 establishes the standards for such action placing on the proponent for continued sealing the burden of showing, by a preponderance of the evidence, that good cause still exists to keep the record sealed.” Citing to Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356 (1995).

In the Courts

Although there is a dearth of case law interpreting the amended Rule 1:38, in 2009 Derek Freed, Esq., authored an article published in The Family Lawyer, the monthly publication of the New Jersey State Bar Association-Family Law Section. Mr. Freed's article opines that “Marital Settlement Agreements (submitted to the court as part of a post-judgment application) also present numerous problems. Counsel will need to carefully review the agreements to ensure that all CPIs are removed.” (CPIs are Confidential Personal Identifiers.) As such, but for the redacting of any Confidential Personal Identifiers, divorce agreements can be obtained by anyone as an open court record.

A Property Settlement Agreement or Matrimonial Settlement Agreement does not fall into any of the enumerated categories as set forth in Rule. 1:38-3, which defines what court records are excluded from public access.

Lawsuits are filed in a public forum. One of our basic rules of court requires that court proceedings be conducted openly unless otherwise provided by rule or statute. R. 1:2-1. Reviewing a history of open government, the New Jersey Supreme Court has described open judicial proceedings as “the cornerstone of a democratic society.” Tarus v. Borough of Pine Hill , 189 N.J. 497,507, 916 A.2d. 1036 (2007) (citing 1 Jermey Bentham, Rationale of Judicial Evidence, 524 (London, 1827). Privacy interests give way to the public's right to know the business of the courts, with exceptions not relevant here primarily applicable in the Family Division.

The Public's Right to Know

Even when neither party is a government agency, the public has the right to court documents filed in civil lawsuits. Hammock v. Hoffmann-LaRoche, Inc. , 142 N.J. 356, 662 A.2d. 546 (1995); Zuckerman v. Piper Pools, Inc. , 256 N.J. Super. 622, 628-29, 607 A.2d. 1027 (App. Div.) certif. denied, 130 N.J. 394, 614 A.2d. 617 (1992); Asbury Park Press v. Monmouth County , 406 N.J. Super. 1, 9 (App. Div. 2009), aff'd 201 N.J. 5 (2010).

Rule 1:38 was not intended to create a tiered system where the rich could have a private court system by agreement and those without wealth could not. The idea that secrecy could be obtained without a showing of serious injury or a need for privacy runs counter to the Rule. A clear presumption as set forth in this Rule favors openness for the very sake of the public's right to know and to have faith in an open judicial system. Such was the intent of our founding fathers; to have a system of open access, not one that is opaque. It is the presence of consistency and even-handedness that make our system as fair as possible. That presence necessitates an open system, which the New Jersey Supreme Court has found. Consequently, a celebrity's privacy can only be maintained by the exercise of discretion and keeping the divorce out of the court system. An attorney can make an application seeking to seal the file, but it is subject to an interested party or the media making an application for release of the file. Again, if the only documents filed in court are a Complaint, Answer and Counterclaim, and if a Judgment of Divorce is granted, the public only knows a Complaint has been filed.

Discovery

Assets acquired before the marriage that grew during the union would have some marital component, if the growth was active. Assets accumulated during the marriage, which grew during that time, are obviously subject to equitable distribution. Assets that were created during the marriage and continue to grow after the marriage may be subject to equitable distribution under certain circumstances, and there are various arguments that can be addressed regarding the growth of those assets.

International discovery is time-consuming and difficult. On rare occasions, it is necessary to travel to conduct discovery. For example, a concert performer who performs all over the country and the world has many contracts, and if they are in foreign languages, they need to be translated. Use of the authorization to release and translate the documents, rather than trying to subpoena documents out of state and country, may be a more expeditious approach. The client's authorization for the release of information can be obtained by the mediator/arbiter/discovery master or the State Court, if necessary.

When English is not a client's primary language, the attorney needs to send a copy of all correspondence and all pleadings in the client's native tongue, as well as in English. Computer programs, as most of you probably know, exist for translation and can be utilized. Obviously all important documents should be translated by a certified translator.

Claims for Support

The celebrity client does not live the way a mediator, arbiter or judge lives. It is important to paint a picture of the life of the client and the type of lifestyle that he/she has been accustomed to living, especially if making a claim for support. While lifestyle analysis is extremely important, even if there is significant wealth involved, analysis may not be necessary if the case does not involve alimony and equitable distribution.

Make sure that all the assets are accounted for, including items such as royalties. There are specific ways of projecting royalties. In addition to various business interests, there is the issue of valuing a partially completed book or movie and determining the marital portion for purposes of distribution. Even if the book has not yet been published, attorneys need to make sure ' if they represent the writer's spouse in that situation ' that the spouse understands that there can be value to the entity. It is tempting to tell the client to waive equitable distribution of some incomplete entity in return for keeping other assets, but there should be some way of determining value so that the client is not waiving an interest to the next great movie, book or invention without a reasonable and proper offset.

Conclusion

Verify that you have the time to handle the celebrity clients and that you have the support staff to follow up with regard to discovery issues. As we know, there can be a time lapse between significant work and significant payment. Accordingly, all the members of the firm ' not only the matrimonial practitioner ' need to understand the situation in advance. Your staff also needs to understand the celebrity client and accommodate the celebrity client's needs. For example, are there certain specific times when the client can be reached? Ensure that everyone appreciates who your client is and that the celebrity client is comfortable with your office. Remember that the celebrity client is coming to you for assistance with regard to his/her problem. This is not a time for autograph signing, pictures and discussions about other issues. It is best to stay focused on the case in order to handle the matter. Should entertaining be something that the client elects to do, then join in, but try not to turn the relationship into something other than what it clearly is. It is a business relationship and a relationship of trust, where you serve a specific function with regard to the client, celebrity or not.

Lynne Strober, a member of this newsletter's Board of Editors, is a Partner at Mandelbaum Salsburg, West Orange, NJ. She specializes in Family Law and co-chairs the firm's Family Law Department. David Carton is a Partner in the firm and represents clients in all aspects of family law, including divorce, domestic violence, civil unions, custody, parenting time, child support, alimony and division of assets. Judge Michael Diamond, Of Counsel with the firm, is a retired member of the New Jersey Superior Court. He is a member of the Executive Committee of the Family Law Section of the New Jersey State Bar Association.