Life‐story fee contracts: When may a criminal defendant demand ineffective counsel?

Abstract

One glance through the more recent bestseller lists and television schedules reveals the American public's obsessive interest in stories involving bizarre criminal acts, such as the Amy Fisher case, the prosecution of the Menendez brothers, the Lorena Bobbit trial, and the attack on figure skater Nancy Kerrigan.(1) Presently, the public's thirst for sensational crime is being quenched by the Simpson murder case, as the book publishing industry is cranking out truckloads of O.J. Books(2) and television stations are providing not only a front row seat to the trial but a daily rehashing of the events regarding the case. So who profits from these sensational crime stories? Obviously, the book publishing and television industries reap benefits. But what about the defendants--and their attorneys? In the Simpson case, for example, the most notable individual to profit from the murders of Nicole Brown Simpson and Ronald Goldman is Simpson himself. While in jail waiting for his trial to begin, Simpson teamed with Lawrence Schiller to write a book(3) explaining his side of the story, thus giving the defendant a one-sided word with the world without the unpleasantness of cross-examination.(4) Though his book provides him with a voice, more importantly, it fills O.J.'s coffers for his legal defence. Simpson, who hired a dream team of attorneys to represent him,(5) is spending approximately $60,000 a week in legal fees.(6) Although Simpson was worth more than a few million dollars before being jailed in June of 1994,(7) he is using the proceeds from his book(8) to staunch [the] checking-account hemorrhage(9) that has resulted from retaining the highly expensive and talented counsel. Arguably, Simpson is able to afford his legal defense dream team as a result of the book publishing and television industries' attempt to satisfy the American public's insatiable thirst for sensational crime. As a general rule, at any time before or during the criminal proceedings, a criminal defendant may sell his or her life-story rights directly to a literary or television agency and use the proceeds to finance his or her defense.(10) Clearly, Simpson has capitalized on this rule. Problems arise, however, when an indigent criminal defendant retains private counsel by means of a contract that grants the attorney the publication rights and potential profits to the defendant's life-story in lieu of attorneys' fees. These types of contracts create a potential conflict of interest between the attorney's financial interests and the attorney's professional responsibility to his or her clients. For example, in United States v. Hearst,(11) Patricia Hearst was arrested for bank robbery, and she was represented by F. Lee Bailey at trial. During the course of the proceedings, Bailey contracted to write a book about the trial, thus raising questions of potential or actual conflict of interest. Hearst was convicted, and she immediately appealed, claiming that Bailey's book contract created a conflict of interest that deprived her of her sixth amendment right to the assistance of counsel. Hearst charged that Bailey (1) failed to seek a continuance, so public interest would not cool and competing authors would not get the jump on him; (2) failed to seek a change of venue, because publicity would be maximized by a trial in San Francisco, a media center; and (3) put her on the witness stand, so her story would go on the public record and he would not be constrained by the attorney-client confidentiality rules. As the Hearst case illustrates, an attorney operating under a publication rights fee contract may be tempted to subordinate the interests of the client to his or her own anticipatory gain because the only compensation the attorney will receive will come from the commercial exploitation of the defendant's life-story. The attorney's financial stake in the literary contract might cause the attorney to hold a lengthy and sensational trial at any price; to create as much trial publicity as possible; and, as a result, to increase the financial potential of the acquired publication rights and the personal monetary benefits flowing therefrom. …