You will require the assistance of an attorney throughout your producing journey. How do you find the right attorney? Well, first off, only retain an “entertainment” attorney (who I will refer to as “attorneys” going forward). Ask friends and colleagues for referrals, read blogs, books, and legal articles by attorneys, and read posts and responses by entertainment attorneys on professional social forums, such as LinkedIn. Many attorneys offer a free half-hour initial consultation. Interview as many as you need to find one that is a good fit for you. I use the consultation to determine whether I can or want to represent the potential client. I seek clients who have reasonable expectations, are open to advice, are able to pay my fees, and whose personalities are compatible with mine. I recommend you retain an attorney with whom you are comfortable, who respects you, believes in you, and tells you the truth—even if you do not want to hear it. If you want an attorney for the long term, which I recommend, steer clear of attorneys that intimidate you or are arrogant. Use the free consultation to shop for an attorney—not for the purpose of picking the attorney’s brain when you have no intention of retaining legal counsel.
Attorneys are paid an hourly fee, a flat fee, or a contingent fee (a percent of the gross monies earned by you). Hourly rates run the gamut. How much you pay by the hour is going to depend on the attorney’s experience and the size of the law firm. The average hourly rate is in the $300-$500 range. When billing on an hourly basis, the attorney charges for all the time spent on your behalf: negotiating, drafting, redlining (revising agreements presented to you), phone calls on your behalf or with you, copies, messenger service, etc. The attorney may represent you on a flat fee basis if your resources are limited, or the service can be billed on a flat fee basis. A flat fee entails the attorney quoting you a price that is inclusive of all the phone calls and work to be done by the attorney.
Just remember, “It is when you think you cannot afford attorney, that is exactly when you cannot afford to go without one.”
I charge a flat fee for the formation of business entities, copyright registrations, trademark applications, screenplay submissions, and production legal. You will have to provide the attorney an upfront deposit based on the attorney’s guesstimate or flat fee quote. Whether an attorney will represent you on a percentage basis will depend on whether you are earning money producing, have a track record, or have an offer on the table that will result in a payment large enough to compensate the attorney. It is unlikely that an attorney will represent you on a percentage basis otherwise. The average percentage is 5%, but it can be as high as 10% if the attorney is representing you on a very low paying matter. Sometimes an attorney will structure a hybrid billing arrangement so that you are paying a portion of your fee up front and the other portion as a percent of the monies earned by you. Attorneys do this sometimes to accommodate a client’s limited financial resources.
You should enter into an Engagement Agreement with the attorney, which explains the basis of the representation, the fees, deposits (if any), and contains any necessary disclosures. The California State Bar requires an Engagement Agreement whenever the matter is going to result in payment to the attorney exceeding $1,000 and in contingent fee arrangements. You provide the deposit at the start of the representation, which goes into an attorney/client trust account. The attorney cannot withdraw the money from this account until it is earned. Any portion of the deposit remaining at the end of representation is returned to you. The attorney will require additional funds if the deposit runs out prior to the conclusion of the attorney’s services.
You have to work smart in order to get your films financed and produced. Having an attorney in your corner is a step in the right direction. Listening and taking good advice is another. I know that hiring legal counsel may seem like a big investment, but trust me, you need one. The attorney will help you steer clear of the mine fields, will save you time and money, and will improve every deal she negotiates for you. Just remember, “It is when you think you cannot afford attorney, that is exactly when you cannot afford to go without one.”
