THR Esquire

Lawyers guiding clients through the strike zone

You won't find them on the picket lines, but attorneys representing film and television writers are playing a key part in the ongoing WGA strike. The involvement is certainly not comparable (at least not yet) to the 1988 strike, when well-known industry lawyer Ken Ziffren took a leading role in resolving the dispute, meeting personally with guild reps, studio heads and chief AMPTP negotiator Nick Counter to mediate a settlement. Rather, many top talent attorneys say they now find themselves in the role of steady adviser, helping clients to navigate the war rhetoric and complex strike rules without unintentionally angering either side.

It makes sense that a writer's first call upon hearing of the strike would be to his lawyer. Beyond the issues of DVD royalty rates and whether streaming video constitutes "promotion," the work stoppage presents thorny legal questions pitting individual contractual obligations vs. strict guild requirements.

Is writing for the Internet permissible during a strike? What are multihyphenate showrunners' rights and obligations to struck companies? Is there a "correct" choice when a writer receives two letters, one from the WGA demanding that he turn over all unproduced material that has been shopped or purchased by a studio, and another from the studio saying that to do so would put the writer in breach of contract and subject him to a lawsuit?

There are few iron-clad answers, and with both sides constantly jockeying for leverage, many writers have looked to their lawyers for sound, dispassionate advice.

"Clients are coming to us to walk them through the maze of conflicting letters," says Jason Sloane, a top talent lawyer whose firm is one of the roughly two dozen boutiques in West L.A. and New York that handle deals for most big talent, including writers. "We do our best to help them."

It's a tough task. A main area of confusion for writers is the WGA's Strike Rule No. 8, the "script-validation program," which requires that members submit scripts to the guild so it can later prove if unauthorized work was performed during the strike. WGAW general counsel Tony Segall acknowledged in these pages last week that the program is "kind of an honor system," but the guild still sent letters demanding participation. (Following the 1988 strike, hearings on the issue actually took place.) Several studios then responded with letters telling writers to disregard the program for scripts written under contracts, which often contain confidentiality clauses prohibiting disclosure of the materials to anyone, including the WGA. This prompted the guild to file a labor complaint alleging intimidation tactics.

It's a sticky situation for writers — and their lawyers — who want to honor the guild's wishes but are wary of provoking legal action from the studios. Rather than picking a side, some lawyers say they are suggesting a compromise wherein clients e-mail their scripts to the law firm — thus putting the material in "escrow" with a date stamp — while avoiding potential studio breach-of-contract claims.

Until someone steps up like Ziffren did in '88, attorneys say they'll continue to help clients weather the strike in whatever way they can.

"I feel like I'm now a therapist as well as a lawyer," one attorney says. "It's a stressful time for all of us."
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