The Tribe Has Spoken: How Survivor Recontextualized the Attorney-Client Relationship
The hit television show, Survivor, has been involved in its share of legal battles over the course of its forty-two season run.[1]. It weathered the storm when a former contestant accused the show’s producers of manipulating the outcome of her season.[2] It did not get its torch snuffed by the band, Survivor, in a trademark infringement suit.[3] It did not get washed away by a trademark infringement suit by the owner of the “Surfvivor” mark.[4] Survivor, true to its motto, has managed to “outwit, outplay, and outlast”[5] its way through twenty years of possible complaints. Continuing this litigious tradition, a California court has spoken in Survivor’s favor regarding a long-running dispute between the showrunners and an attorney.[6] This opinion highlights how courts can perceive attorneys working in the entertainment industry and serves as a cautionary tale for lawyers seeking to unshackle themselves from the constraints of the attorney-client relationship.
The dispute was between Conrad Riggs, a transactional attorney who worked with Mark Burnett,[7] and Layne Leslie Britton.[8] Britton was an active member of the California bar who had never worked for a law firm and had never made a court appearance.[9] Instead of working in a profession requiring his law degree, he worked solely as a television executive.[10] In the late 90s, when Burnett and Riggs were pitching Survivor, Riggs enlisted Britton to help him negotiate favorable deals.[11] Britton’s employment agreement, which was titled ”Consulting Agreement,” entitled him to thirty-five percent of Rigg’s share of the gross profits of Survivor.[12] His duties primarily consisted of assisting in negotiations, offering opinions on contracts, and critiquing letters drafted by Burnett’s counsel.[13]. The court found that, despite Britton’s lack of trial experience and his insistence that he was merely a consultant, he had indeed entered into an attorney-client relationship with Riggs.[14] This meant that Britton’s fee structure was voidable under California’s rules of professional responsibility.[15]
Not all of Britton’s responsibilities, taken alone, would have formed an attorney-client relationship. For instance, the attorney-client privilege does not attach to a lawyer who “acts merely as a negotiator for the client or is providing business advice.”[16]. This only means that a negotiation is not automatically considered legal work. Evidence of an attorney-client relationship can be found if the negotiation or other responsibilities require the services of a “trained legal mind.”[17] By commenting on Burnett’s lawyers’ legal positions and looking over contracts, Britton demonstrated his “trained legal mind” and was found to be engaged in an attorney-client relationship.[18]
An attorney who enters into an attorney-client relationship must abide by the myriad rules of professional responsibility.[19] Depending on the jurisdiction, these responsibilities can range from the duty of confidentiality[20] to the obligation to provide competent counsel[21]Even if a lawyer does not draft trial briefs or perform copious hours of legal research, the lawyer can still be subject to the rules of professional conduct.[22] By doing jobs that are not exclusively associated with lawyers – looking over contracts and negotiating legal positions – someone can be transformed from a consultant into an attorney.[23] There are no talismans – no hidden immunity idols – that can magically protect a lawyer from taking on these responsibilities. Even framing the employment agreement as a consulting arrangement cannot automatically sever the attorney-client relationship.[24] Although an unpublished case, Britton v. Riggsdemonstrates the difficulty that a licensed lawyer in the entertainment industry can face when trying to avoid creating an attorney-client relationship. As in all aspects of life, it behooves attorneys to know what they are “playing for.”
Footnotes
