In WGA's fight with agencies, Hollywood's lawyers play on-call doctors

Leigh Brecheen, a partner at law firm Goodman, Schenkman & Brecheen in Beverly Hills

By Wendy LeeStaff Writer

Sept. 18, 2019 3 AM PT

For the attorneys of Hollywood’s writers — currently locked in the worst labor dispute in a decade — the summer of 2019 was the summer that wasn’t.

Plans of sipping wine by the sea or playing polo in Santa Barbara went out the window. Instead, entertainment lawyers readied themselves to take calls from Hollywood writers, more than 7,000 of whom have fired their agents since April as part of the intense battle between the Writers Guild of America West and the Association of Talent Agents. Many of these writers, newly adrift in Hollywood’s crosscurrents, turned to their lawyers for help.

One attorney spent an hour and a half on the phone with six clients who wanted to know what to make of the WGA’s court case against agents. Another painstakingly sought to unravel for a client a potentially bad TV deal a talent agent probably would have flagged sooner. Another balked at a writer client’s request to read a script and send notes back.

Even declining to read a script takes time, but many of these lawyers aren’t racking up billable hours. Entertainment lawyers get paid a 5% commission fee on deals, which means that when they are asked to do things agents used to take care of, they’re often doing more work for the same amount of money.

The changes kicked off in April, when the WGA — objecting to several common but controversial agency practices — instructed its members to fire talent agents who had not signed a new union-proposed code of conduct, one that replaced a 43-year-old agreement and ended those long-standing industry habits.

The move has placed attorneys for writers in a novel position. These lawyers typically help negotiate and look over deals for their clients — and not much else. But over the last few months, several attorneys say, they’ve had numerous conversations with anxious writers about everything from particular deals and career choices to the strategy of their guild.

“You’re sort of like an on-call doctor,” said one attorney who has writer clients and asked not to be identified for fear of hurting relationships. “Nobody has had a summer because people are working harder and working longer and the stakes and concerns seem higher-level. There’s an emotional pitch to all this that didn’t exist six months ago.”

Even though these conversations don’t boost the bottom line, many lawyers feel compelled to do the extra work because they don’t want to lose their clients. They’ve delayed or ditched summer vacation plans and taken calls when they are out with their children.

“There’s been a tremendous amount of activity,” said Leigh Brecheen, a partner at entertainment law firm Goodman Schenkman & Brecheen. “If you take a vacation, you’re spending most of it on your cellphone or computer.”

Brecheen says she doesn’t mind the extra work because she’s in the business to help her clients, but other lawyers have privately grumbled.

One industry source recalled hearing from a lawyer who’d been asked to read a TV pilot script and make notes — something a talent agent would typically do. The attorney was dismayed because giving notes was not part of their job description or their skill set. “They’re miserable,” the source said.

The expanded role also has forced lawyers to walk a legal tightrope.

In California, only licensed talent agents can help writers procure work, thanks to a 1978 law meant to protect performers from unsafe business practices.

Without agents, the writers look for work by reaching out informally to their own contacts, by using their union’s online tools, and by networking on social media and at industry events. These approaches have had mixed results for some writers, causing a few to secretly go back to their agents.

But for writers without agents, some attorneys will help them connect with studios. Attorney Lev Ginsburg said his firm, Ginsburg Daniels Kallis LLP, will respond to some incoming inquiries from studios and networks who want to know if a client is available to meet or pitch new material.

That said, attorneys are careful to not violate the state’s law. Some lawyers believe that passing along information to a client is allowed but proactively soliciting work on behalf of a client is not.

“Lawyers are not agents, and writers are not expecting their lawyers to become their agents,” Ginsburg said in an email.

But that doesn’t stop some writers from pushing their lawyers to skirt the law. One attorney said clients have asked him to submit their TV and movie scripts to studios or producers, which he refused to do.

“It’s a challenging task,” said the attorney, who declined to be named.

Some law firms also are now tracking whether clients have been paid, a task that fell to agents in the past. Matt Sugarman, a shareholder in the entertainment department of the Weintraub Tobin law firm, said that for deals that have closed without talent agents involved, his law firm is tracking payments and sending out invoices.

“We are having to be more diligent for our clients ... to chase down payments and make sure our clients are paid on time,” Sugarman said.

Although lawyers can help with some procedural concerns, it can be hard for them to replicate all of the services a good agent can provide. Attorneys say that talent agents can be powerful allies in deal negotiations because of the relationships they have with the studios and their insight into the marketplace. Without agents involved, it’s possible that writers may be getting worse deals than they would if they had agents, said David Smith, a professor of economics at Pepperdine University’s Graziadio Business School.

Traditionally, agents help writers procure work and search for the best opportunities in the marketplace. Then the offers are sent to the attorneys, who help negotiate the deals. With some attorneys refusing to procure work for clients because they are afraid of breaking the law, writers may be operating with less information about opportunities and going rates than they otherwise would.

Agents also play a critical role in deal negotiation. Once a writer client receives an offer from a studio, agents can offer information about similar deals done with that studio, said Sugarman of Weintraub Tobin. Agents also have relationships with the creative side of a studio and can leverage those ties to help move a deal along, he said.

“They do a lot of background work that helps smooth deals over and helps get things done for clients,” Sugarman said.

Talent agencies also can use their roster of talent to put pressure on studios when negotiating deals. Some entertainment lawyers are concerned about Walt Disney Co.’s recent effort to present deals that could significantly reduce the amount of money earned by talent working on new shows that become hits. Disney’s introduction of the new terms has happened in the months since writers fired their agents en masse, and lawyers fear that writers are losing leverage in negotiations without the power of talent agencies pushing back.

“The timing is extremely convenient that as soon as the Writers Guild and the agencies are at a complete loggerheads and the writers unrepresented by agents, they start implementing this thing,” Brecheen said.

Brecheen is concerned that as more deals are approved under Disney’s new terms, there will be less room for negotiation. Disney has declined to comment on its deals, which are similar to those offered by Netflix and Amazon.

Now, the summer is over, and there’s no end in sight to the writers’ standoff with agents. Like many others, attorneys initially thought that the impasse between the WGA West and the collective bargaining agency, ATA, would be short-lived.

Instead, tensions between both groups have heightened, as agencies have balked at WGA demands to halt long-standing practices that it believes have hurt writers, such as replacing agency commissions with fees for packaging shows.

The WGA West is now negotiating with individual talent agencies instead of the ATA. More than 70 agencies have agreed to the union’s terms, but the union has not landed agreements with any of the largest firms. There is also a legal battle taking place in federal court, where large talent agencies CAA, UTA and WME have sued the WGA for antitrust violations and the WGA has filed counter-claims.

The tactics have divided union members. Some high-profile members backed a dissident campaign by Oscar-nominated film writer Phyllis Nagy for president of the Writers Guild. Nagy challenged WGA West president David Goodman and called for resuming negotiations with the ATA but was easily defeated on Monday.

Which means attorneys are beginning to plan for the longer term.

Some lawyers have received more business as a result of the standoff, as writers who previously had only agents now seek help from attorneys. But for lawyers who already have lots of writer clients, the increased workload is unsustainable, said Elsa Ramo, a managing partner at Ramo Law PC. Ramo represents producers, financiers, creators and owners of film, TV and digital content projects, but has heard from other attorneys who represent writers about their experiences.

Some attorneys may fire some of their writer clients just to make the work more manageable.

“I don’t know how much longer they can last,” Ramo said of the attorneys who represent writers. “They are really being split in a lot of different directions. There is a void that has to be filled.”

The void is not purely a practical one. “The clients have one less person to talk to about the things going on in their lives,” said an attorney who declined to be named. “There’s a nontransactional part of this that’s taken a lot of time. There’s a lot of listening to the clients’ concerns and trying to alleviate them.”

Some lawyers also believe the writers reach out to them the way a churchgoer would confess sins to a priest — they know lawyers will not disclose what is said in a conversation thanks to client-attorney confidentiality. Such conversations may feel safer than chats with other writers, who may perceive their worries as disloyal to the union’s cause.

Until the situation resolves, attorneys continue to field calls from clients. Since the writers fired their agents in April, one attorney noted, writers have asked when the situation will be over. At first, the attorney estimated, “It should be over by summer.” Then, the attorney thought, it would “definitely be over by the end of summer.”

“Now, the answer is, ‘I don’t know,’” the attorney said. “There is no way to make a reasonable guess.”