Suits And Noncompetes for Lawyers

This season, one of the big issues that came up in the show Suits was that a partner was thinking about leaving the firm. But no! You can't leave, the partners say. Why? Because the partners all signed agreements that they wouldn't compete with the firm or take clients with them.

Doi.

Before I smacked my head on my desk, I double-checked. I knew that Florida lawyers aren't allowed to have noncompete agreements. But Pearson Hardman, or whatever they're called these days in the show, is in New York. Here's what New York law says about noncompetes for lawyers.

RULE 5.6:

Restrictions On Right To Practice

(a) A lawyer shall not participate in offering or making:

(1) a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(2) an agreement in which a restriction on a lawyer’s right to practice is part of the settlement of a client controversy.

(b) This Rule does not prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.

Yep. Just as I thought. Lawyers in New York aren't allowed to have noncompetes either. Pretty clear. Took me about 5 minutes to find the rule. But the Suits writers are increasingly unwilling to do even the most basic research to make their show credible. My 14-year-old daughter still loves it, but I'm having a hard time with it this season.

Why can't lawyers have noncompetes? Because the attorney-client relationship is so personal, so special, that clients must absolutely be allowed to choose their lawyer, even if it means leaving a firm to follow a lawyer who moves to a different firm. This logic makes sense, but then why doesn't the same rule apply to doctors? I don't know anyone with whom I have a more personal relationship than my gynecologist, yet doctors frequently sign noncompetes. The patients are out of luck if they leave.

The law may be an ass, but writers who don't bother doing their research on even the most basic issues make an ass of their viewers and readers, as well as themselves. Losing 1.8 million potential viewers is surely a loss any show can't afford, and that's how many lawyer/viewers you stand to lose if you don't do your homework.

My Publishing Predictions (Partly) Come True

Last year, I made a number of predictions about what would happen in 2012 in publishing. Call me Cassandra, because they (partly) came true. Here's how I did with my prognostications:

Full-service e-books: I predicted that full-service shops would open up to assist writers who want to publish their own e-books, offering editing, cover design, formatting, special features such as links, matchmaking with illustrators, uploading to the major e-readers, and marketing. So far, there have been no takers on this model. Instead, publishing professionals have opened their own e-publishing companies rather than companies to assist writers. The big e-publishers like Lulu and Amazon also offer what they say are turnkey services. I think there's still room for some smart publishing professionals to pick up the slack in this huge market.

Consumer protection suits: I predicted we'd see more lawsuits claiming readers were misled. Sure enough, we've seen new consumer protection suits against authors and publishers, still mostly nonfiction, with consumers claiming they didn't get what they paid for. Lance Armstrong and Greg Mortenson have had the most highly publicized cases. I'm still waiting for suits saying a book advertised as fantasy was really sci fi, or a book advertised as good was really terrible.

Trademark suits: I predicted more trademark suits by authors, and I was right. Suits by comic book authors, dead authors and bestselling authors have claimed trademark infringement. It's one of those issues that will keep lawyers busy for decades to come as the publishing industry becomes more tight for money. The Fifty Shades people alone will create a boon for intellectual property lawyers.

Licensing: I predicted more publishers would make grabs for author rights in overbroad licensing language. Sure enough, publishers are making unprecedented moves to grab author rights. Beware contract language that may take away your rights. I've seen really broad licensing language proposed to me in contracts where I was writing free content. I find that most publishers, especially the ones who don't pay, are willing to negotiate when you call them on it.

Noncompete: As publishers insert more noncompete clauses into contracts, I predicted we'd start to see authors sued the same way employees are sued now – to keep them from going elsewhere. I haven't seen this yet, but I hear of more and more of these clauses. Since it takes a couple of years to get most books into print, it might be awhile before the suits come rolling in. What we are seeing, though, are suits where employers claim they own the copyright on books written by former employees based on contract language. Watch what you sign with your employers, as well as your publishers.

Alternate revenue sources: I predicted that publishers will insert links in ebooks to purchase items mentioned, like music, other books, and products. So far, while some e-books do have links, it looks like they are mostly for scam purposes, such as inserting malware. As publishers look for alternate revenue sources, advertisements are inevitable.

2012 certainly had its share of the usual libel and copyright litigation, along with a plethora of other legal issues that kept us busy on The Debriefer. Keep listening to us this year to hear the latest legal news in writing and publishing.

666 Park Avenue Starts With An Employment Law Lesson

The new television show, 666 Park Avenue, is a fun show about a luxury apartment building that has issues way beyond the normal plumbing problems. And the landlord? Well, as the Church Lady used to say on SNL, "Could it be Satan?" I think I had that landlord once.

The first show starts out with our hero couple finding the ideal job as managers of the building from hell. It all looks so nice, the tenants so happy. The new boss offers them more money than they imagined and a gorgeous apartment. He shoves a lengthy agreement in front of them. What's the worst that could happen?

Of course, our heroes sign without reading. And there's the big lesson for all employees: read what you sign. Your could be making a deal with the devil.

What could be in the agreement in this show makes me shudder to think. I'm sure we'll find out some of the worst provisions as the show progresses.

What could be in your employment agreement? There could be a noncompete provision saying you can't work for a competitor for a year or two. Or a nonsolicitation agreement, saying you can't solicit or communicate with clients, vendors and employees of the company for a year or two. I saw one that was so broad, my client couldn't talk to her bank about her own bank account if she signed. One would have barred my client from talking to his son for three years. You might have waived your right to a jury trial for any disputes against your employer, or have agreed to arbitrate, meaning you'll never get your day in court.

For writers, horror of horrors, there could be an intellectual property agreement saying that, if you thought of it or wrote it while you worked for them, even on their own time, they own it. That's right. Your blog, Twitter account, novel or nonfiction book about the workings of your industry might not be your own.

While you enjoy this fun new show, let it serve as a reminder to you: no matter how nice someone seems, read what you sign. You just might be making a deal with the devil.

Hey Good Wife Writers: Mediation Is A Settlement Conference, Not A Hearing

I just finished watching Episode 11 of this season's Good Wife, called, "Boom De Yah Da." Where do I begin? The writers must be watching that idiotic show about "mediation," Fairly Legal for their research. They couldn't have been more off base if they tried.

First of all, our heroes get a "Notice of Mediation" ordering them to attend a mediation on short notice regarding their bankruptcy. Sure, mediators do sometimes issue notices. But that's about all they got right. While a court may order mediation between parties, nobody can unilaterally set a mediation. The parties agree to both the mediator and mediation date. If they agree on neither, the judge sets it. There's no such thing as a surprise mediation. Usually, a party issues the notice after both parties agree on a date, location, time and mediator.

But it gets worse.

The mediator arrives and calls herself an "empress." It is clear that she intends to conduct a hearing and make a ruling. That's not what a mediator does. A mediator is a facilitator. She is not a judge, an arbitrator, a hearing offer, or an empress. She is there to help parties to a legal dispute reach a voluntary settlement. She can't take testimony. She can't make an order.

I'm so sick of writers getting this wrong. Mediation is a great thing to write into a legal show or a story involving the law. The Wedding Singers was a comedy that started with the main characters conducting a mediation, and they did it right. It was a great introduction to the characters, funny but true to the law.

Why has Hollywood gone off the deep end about mediation? It's simple. If you want someone who isn't a judge make a ruling in your story, they can be several things, just not a mediator. Here are a few:

Court-appointed special master: A special master is someone the judge appoints to make rulings on a specific matter. It might be discovery or a complex legal issue. That would have been perfect here.

Arbitrator: If the parties agree, the whole case can be ruled on by an arbitrator instead of a judge. It's a great process that saves time and money, and is not public. I doubt it would have worked here since the parties didn't agree and I've never heard of a bankruptcy arbitration. Arbitration can be forced on people like consumers and employees who signed an agreement in fine print they didn't read, and you can't appeal an arbitrator's ruling, so it's an excellent vehicle for a writer to use. It creates tension, drama, and gives finality to your story's outcome, unlike a judge's ruling, which can be appealed.

Hearing officer: Some cases, usually minor ones like traffic matters, use hearing officers instead of judges. They can make rulings just like judges. It wouldn't have worked here.

Magistrate judges: Federal courts also have Magistrate Judges, appointed but not for life, who hear federal matters. They take some of the burden off the judges and can hear cases by agreement or by court order. That would definitely have worked here.

Why oh why can't writers be bothered to get this right? It really ticks me off since I'm a mediator. Any lawyer, party to a lawsuit, mediator, or judge who is familiar at all with mediation knows this wasn't even close to realistic.

C'mon, Good Wife writers. I know you can do better.