The term “counsel” takes on various incarnations to a lawyer. Most often, we’re relied upon to supply competent legal guidance; sage advice that only one verified by the applicable state bar could provide. Our clients look to us for solutions otherwise entirely outside of their scope of knowledge and zone of comfort. As production counsel for film clients, however, we often provide guidance beyond a strictly legal realm, blurring the distinction between “counselor at law” and simply “counseling.”
Working with artists is wonderful – it is creative in nature, it is collaborative (in theory), and it is uniquely demanding. And while “client management” is a familiar skill for any attorney, a certain amount of hand-holding comes with introducing certain clients to the corporate side of the entertainment industry. Unfamiliarity with business practices, industry custom and legalities can be rather vexing to our artistically-minded clients. To successfully aid them in navigating such territories, we must be equipped with more than just business acumen and legal knowledge.
As production counsel for independent films, our clients range from savvy, business-minded producers to individual writers/directors who have managed to scrounge up enough “family and friends” money to take their screenplay from paper to film. Each production, like each client, is entirely unique and should be treated as such. Production-related issues vary based on the budget of the film, the shooting location, applicable guilds, exigencies of production, and a range of other factors frequently unforeseen by our clients and/or us. Understanding the potential risks and exigencies ahead can tailor the instruction we provide, recognizing that we may not always be able to provide the best on-the-spot advice given that we may be addressing an entirely unprecedented issue.
One of the biggest challenges we face as production counsel is advising our clients against promises already made. For instance, producers working within the confines of a small budget who consider contingent compensation payments (e.g., deferments, box office bonuses and in-kind participations) as “free money.” Of course, there’s no such thing as “free money,” and we regularly must remind clients of this while doing our best to be respectful of their prior decisions.
This is often where the “counseling” aspect kicks in. Clients look to us for approval and resolution, very often “as soon as possible.” They never want to hear that something cannot be done; they simply want us to tell them the best (and cheapest) way to do it. Telling a director that a scene has to be cut for lack of appropriate clearance rights, or reminding a producer that the workday must end after 12 consecutive hours due to guild regulations, is hardly well-received.
The role of production “counseling” is much like that of any counselor – it requires addressing a client’s judgment delicately while providing sound advice, with the intent of establishing a long-standing relationship based on trust. In counseling, we have to listen as intently as we speak, we have to appreciate the anxieties of production as much as we understand the legalities of it, and we have to respect the mindset of our clients just as much as we hope they respect ours.
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