HANDLING THE MEDIA IN 
FAMILY LAW MATTERS

Prepared for the: 

THE 28TH ANNUAL Entertainment, Sports & Intellectual Property Law Conference IN RIVIERA MAYA, MEXICO

    
By:

Randall M. Kessler1 

Centennial Tower
101 Marietta Street, Suite 3500
Atlanta, Georgia 30303
404.688.8810

PREFACE
	
	This article, which is an updated version of the work submitted a few years ago to this very conference, is one which attempts to identify certain pitfalls and rules of thumb particular to cases involving the celebrity clients, stands in large part on the shoulders of articles previously written and published by the following attorneys at an American Bar Association Family Law Section meeting on the subject: Fred Glassman, Ellen W. Kessler, and Rick Robertson.  It is with their permission that we include their valuable input and ideas herein.  In addition, the written materials and legal input of Mr. Jeffrey M. Zitron, Esq., a partner with Menden, Freiman & Zitron, LLP, who specializes in asset protection law, estate planning and business law, were relied on in developing this paper and are used with Mr. Zitron’s express permission.  
	
ADVOCACY MEETS CELEBRITY 

	Our law firm has been fortunate to have the opportunity to represent a number of celebrity clients and develop a team strategy and approach for those successful representations.  We’ve also had the opportunity to represent the spouse or significant other of celebrities, where our skills representing celebrities gives us insight into the decision making and media influence our “less famous” spouses will be facing.   These celebrity clients, who garner greater-than-ordinary public attention, bring the same family law issues we deal with daily, to the interest and scrutiny of the press.  Representing these individuals can be both exhilarating and challenging.  While a celebrity client may seem larger than life, their family law issues are as unique and individual to them, and just as important as the family law issues facing all of our clients.  The tips herein are based on our firm’s collective experience, but understand each celebrity is a unique individual.  Although not all celebrity clients are in the movies, we rely on movie titles below to distinguish different categories of concern in the representation of this type of client.

A LIFE LESS ORDINARY

	As anyone who has represented a celebrity client will tell you, they bring with them particular areas of concern, but, at the end of the day, their concerns about their cases are remarkably similar to those of any other client whose life has suddenly been rendered less ordinary by the onset of a domestic case.  Most celebrities, like most other clients, want closure in the form of a speedier resolution than the courts can typically provide.  Most celebrities, like most other clients, feel their privacy being chipped away by public record pleadings and the burdensome process of discovery.  Finally, most celebrities, like most other clients, want an attorney who can be a doggedly protective force as well as available to them during the majority of hours on any particular day.

	Apart from the special areas of concern that must be kept in mind when dealing with a celebrity client – areas that will be discussed in greater detail below – perhaps the baseline difference, then, between a celebrity client and another client is simply the level of expectation that must be managed.  All clients come into a case with certain expectations, and it is part of an attorney’s job to contour those expectations in accordance with legal and practical realities.  Unlike a more typical client, however, celebrity clients may have a level of expectation that is unusually elevated due to the “instant gratification” factor that their careers, incomes, and lifestyles have come to contain.  For a period of time, you will become a part of their intimate network of care and service providers.  Navigating this network, and the expectations of perhaps multiple layers of assistants and family, will become part of your job.   Celebrity clients, perhaps more than other clients, require meetings during unusual hours, quicker turn-around on phone calls, and more detailed reassurances about the progress of their case.   Establishing a reasonable level of expectation from the beginning is therefore essential to keeping and cultivating a celebrity client’s (as well as any other client’s) satisfaction.

SIX DEGREES OF SEPARATION

	One of the greatest challenges in representing a celebrity, or the significant other of a celebrity, in a domestic case lies in the degrees of separation that often come between 1) the client and an attorney’s communications with him or her; and 2) the client and the everyday management of his or her finances.  Both kinds of divides have the potential to jeopardize the outcome of a case.

Counsel to celebrity clients do not always have the benefit of direct communication with their clients, but must instead give messages or instructions through a third-party intermediary, such as an agent.  Develop a relationship with your client’s trusted intermediaries, but remind your client that a domestic relations case is intimately associated with him or her, and his or her individual participation cannot be taken for granted.  The outcome of a domestic relations case is so dependent on the relationship between attorney and client, it simply can’t be facilitated through only third party contact.  That being said, having a comfortable client and meeting their service needs and expectations is critical.  Thus, when possible, take advantage of the celebrities’ communication and scheduling intermediaries and/or system, but develop a relationship such that you can gain access to your client when it’s essential.

In addition, since your non urgent and essential communications will go through intermediaries, it is a great idea to protect both attorney and client, by communicating in letter or email.  This will prevent any miscommunication which may occur through well intentioned, but not always the most sophisticated, third parties.  Written communications are particularly crucial where deadlines are concerned.  Although memorializing advice in writing tends to create something of a defensive posture, it avoids the “telephone” game of miscommunication that frequently results from indirect contact with a client and creates a point of reference for future client and attorney use.

Maintaining a good relationship with any third-party intermediary is key to effective representation for obvious communication reasons, but it may also help when it is time for a bill to be paid.  Because of what are surely a multitude of rationales, celebrity clients do not always address the issue of unpaid attorney’s fees in a timely fashion.  This phenomenon may stem from the fact that these clients frequently see the role of attorneys as an unpleasant side effect of the development of his or her art or commercial success.  It may also be that a particular client views him or herself as “good for it” in the end, and does not understand the immediate impact on an attorney’s bottom line and office resources.  Whatever the case may be, the unpaid bill clearly impacts the attorney and his or her ability to continue forward in the case, and an amicable relationship with a third-party intermediary can work to clear the obstacle of an unpaid bill much more quickly.  Additionally, it is wise to be very clear about how the fee is to be paid.  Even when very wealthy people say, “Don’t worry about the cost,” they may be upset with a bill if they did not anticipate the amount.  Be sure to mention dollar amounts as early as possible to avoid “sticker shock” later on.
 
	Apart from the problems inherent in indirect communication with a celebrity client, challenges also arise from the client’s unfamiliarity with the management of his or her everyday income and expenses.  In a recent case handled by our firm it was the client’s accountant, not the client himself, who alone had the requisite knowledge to verify the domestic relations financial affidavit submitted to the court.  Unlike the typical family law client who can at a glance determine whether his or her spouse is artificially inflating the expenses of the parties’ child based upon his or her own common sense and experience, celebrity clients are often utterly at a loss as to what expenses they incur on a month-to-month basis – whether for their child or for something else.  Fortunately, they typically delegate this responsibility to a trusted member of their team, who, if you are provided direct access to this individual, will be able to provide you in great detail the celebrities’ income and expenses.  However, the accountants or financial advisors are hired to pay bills and to manage money, not to make judgments or distinctions as to what expenses are being incurred.  Proving finance-related elements of a case therefore requires much more effort and creativity than may be normal from the attorneys and financial consultants involved. 

BROADCAST NEWS

	The one aspect a celebrity case that unquestionably distinguishes it from other cases is the media interest component.  While all clients are concerned about very private aspects of their lives being made part of the public record, very few need be concerned that anyone will actually go to the trouble of finding or further investigating the public record.  The contrary, of course, is true for a celebrity client who is subject to media scrutiny.  In a celebrity case, public opinion can play a large role in the impact of a case on a client’s life and career, if not in the disposition of the case itself.  The celebrity and his or her spouse may have very different uses and desires for the media in the case, it can create a new kind of leverage not available in a more typical case.  A way to protect your celebrity, create an arena for open and honest communication between the parties, and keep the primary breadwinner earning is to use a confidentiality contract or a confidentiality order to keep the celebrity matters private.  Confidentiality orders, as well as use and coordination with the client’s public relations staff, are invaluable tools when publicity has the potential to figure largely in a case as well as the ongoing career of the celebrity.

	While the availability of confidentiality orders is somewhat constrained by constitutional issues such as the public’s right of access to information, these kinds of orders will generally be entered by a court when both sides are able to agree to the information that warrants protection.  Of course, the more precise the proposed order is as to what remains confidential, such as the value of the next record deal, why it is important it remain confidential, for example to reveal the record deal value would inform consumers that the celebrity wasn’t making as much with this album as the last and it may negatively impact sales, and explains how the public isn’t harmed by this knowledge, the more likely the Order is to be granted.  If you do not have a proposed confidentiality order already on file with your office, try contacting colleagues to see if they have a form that they are willing to share with you.  Because of their protective benefits, such orders should almost always be sought to shield a client’s privacy in a high profile case.

	As for the role of any public relations firm hired on the client’s behalf, it is always useful to confer with the client and the PR firm itself as to how the client’s public image can be benefitted as the case goes on.  Often a “no comment” statement from an attorney creates a negative inference on behalf of the client, but any comments other than “no comment” should be carefully crafted in light of the client’s wishes, legal advice, and the PR firm’s expert advice.  Attorneys are used to running an entire case and providing direction on all aspects which may impact the outcome of the case, so a celebrity case may involve a collaborative approach with other professionals, which doesn’t always come naturally.  For the celebrity, the family law litigation is a personal event, with the possibility of negatively impacting his or her career indefinitely.  To mitigate the potential damage to your celebrity’s career, you will have to work with the PR professionals while never losing sight of your ultimate obligations of advocacy to your client.   Since press images and sound bites from a celebrity case are likely to have a longer shelf-life than the case itself, we must carefully consider not only how the publicity will affect the case, but also how it will affect the client’s career and future opportunities.  
THE INSIDER

	Because celebrity clients do not always have the same level of intimacy with the management of their finances or other details of their daily lives that other clients might have, experts are particularly useful in the development of a celebrity case.  Financial experts such as forensic accountants, for example, are invaluable in sorting out the myriad transactions that occur on a monthly or yearly basis in the bank and credit card accounts of parties with extraordinarily high income.  In addition, many celebrity clients have nothing like a “standard” income to refer to.  Their incomes vary widely from project to project, and the compensation they receive from each project is often contingent on sales figures or radio plays.  Unless you are very familiar with these contracts and payment arrangements, and very few domestic lawyers are, an expert is practically essential to provide you with the knowledge to understand your client’s finances.  

	Another expert you may want to consider is a custody expert such as a psychologist.   Custody experts are particularly helpful where a celebrity client’s “image” as a public persona may be confused by the trier of fact with what is the client’s much more private, but much more accurate, at-home persona.  As always, the bottom-line is how to put on the most compelling case possible on behalf of the client.  To the extent that such presentation can be improved with the use of experts, those experts should be retained and their testimony presented.  In this sense, representation of a celebrity client is not altogether different from any client who walks through an attorney’s door.

INTOLERABLE CRUELTY

	But what our celebrities clients want to know, and all the rest of our clients for that matter, is how do I keep “my” money when we go to Divorce Court.  Perhaps more than most wage-earners, celebrities view their income as uniquely their own, and not an asset of the marriage, because it was often earned as a result of their individual personality, talent, or special ability.  However, the Courts will likely disagree with them, unless they have done some serious pre-planning.  If you are fortunate enough to be representing a celebrity client before they marry, the absolute best asset protection tool is a prenuptial agreement2.  However, as anyone who has encouraged a reluctant client towards a prenuptial agreement or negotiated a prenuptial agreement can tell you, it is far more than a simple financial planning tool.  A prenuptial agreement comes with a ton of emotion, and certain individuals are adamantly opposed to them, regardless of the potential financial cost.
	But a new trend is taking hold, and that is the postnuptial agreement.  More and more couples are deciding to define their financial obligations to each other during and after the marriage in a postnuptial agreement.  A postnuptial agreement follows the same basic form and topics as a prenuptial agreement, however the consideration herein is remaining married, not getting married.  They are most commonly considered by couples who are going through a separation but wish to reconcile.  The separation has created some loss of trust, and the couple want to define their financial rights and obligations to one another if the reconciliation fails and they ultimately end up in divorce.  A postnuptial agreement can be a wonderful tool for the right couple.  It should be noted that postnuptial agreements are so new, they have not yet been tested in the courts.

“SHOW ME THE MONEY”

	Many celebrity clients, perhaps those who failed to take your advice on getting a prenuptial agreement, will want to know what they can do while they remain married to prevent assets from being equitably distributed by the divorce Court.  We are confident that if divorce lawyers had determined the answer to this question, we would all be entirely out of work.  The field of asset protection law was developed to assist high net worth individuals and couples from third party creditors and to reduce tax obligations, it was not developed to assist one spouse from shielding assets from another spouse.  

	Furthermore, even if a client were to put the majority of marital assets into a trust instrument which reduced the present value of the asset and his or her accessibility to the asset, the divorce Court has such broad discretion to do what is “fair”, that any perceived inequalities created by the formation of the trust would be within the authority of the Court to “correct.”  

	For example, your celebrity client feels a divorce is on the horizon, and decides to place the Marital Residence into a trust, along with all but 5% of the marital cash reserves.  Your client selects a relative to be the trustee of the trust.  Sometime later a divorce is filed, and your celebrity client claims the only marital asset is the 5% of cash which was not placed in the trust.  Opposing counsel will present to the Court that your celebrity client inappropriately removed assets from the marriage and does enjoy the benefit of the asset at the discretion of his relative who allows frequent withdrawals.  While the divorce Court may not be able to dissolve the trust, the Court would certainly be able to require your client to pay substantial alimony, or transfer other assets within his or her control, to balance what the Court views as an inequity.  

	Your client may not like to hear it, but there is no “fail proof” way to protect your assets from your spouse.  The law, absent a pre or post nuptial agreement, views your marriage as a joint effort, and what comes in and goes out is shared.  How you treated your spouse also plays a role in the distribution of assets, and it will cause perhaps more harm than good to start moving assets out of the marriage in contemplation of divorce, than it is simply to take your chances with the Judge.  
				
	In conclusion, celebrity clients bring atypical challenges with them in the form of adequate attorney-client communication, never-ending public scrutiny, and effective fact development.  Should these hurdles be met, and we hope that they might be better met with the suggestions set forth above, celebrity clients are, in essence, no different from the other clients who form the basis of our practice.  They, like every client, deserve our respect, our attention, and our best efforts.  

	Ultimately, adapting to the special concerns which arise in celebrity cases is simply another challenge for family law practitioners who regularly strive to handle all types of personalities, emotions, and practical problems.  Although these special clients may require additional degrees of perseverance and creativity from those who represent them, those extra efforts almost certainly will be rewarded in the form of a well presented case, a more satisfied client, and, last but not least, a hard earned and well deserved fee.