Most Lawyers Don't Work For Free

I am still getting regular emails and phone calls from songwriters wanting everything from me to pitch their songs to asking my fee to review a Single Song Agreement they have been offered.  Same with other artists.  Most of the writers tell me how much “everybody” thinks their songs are hits and how although they have no money to pay me now I will be greatly enriched at some future date if I work for free now.  Technically, legitimate record companies work for free at first. Personal Managers and Business Managers work for free now.  Agents work for free now.   Most entertainment lawyers I know in Nashville do not work for free now or later as a general rule.  I suppose it is supply and demand in a free market economy.  If we work for you on spec we cut into the time required to service the paying client – and as a general rule there are more than enough of those in a music industry city.

None of the foregoing artist “team members” are actually working for free.  They are working under an agreement which pays them anywhere from 5% to 20% of an artist’s gross entertainment income for a number of years into the future.  Very few of the established team members are interested in talking to artists who do not have something going on for them, although they might take on one or two development artists.

I have taken clients on a percentage basis, a practice common on the West Coast.  I have one right now but that is about my limit during any given period of time.   I wish I could help you all but there are people who depend on me for their day-to-day livelihood (including my mother - and between you and her she will win every time - :).  And honestly, if you have nothing going for you then you probably don’t need my services now anyway.  At least not until you have been offered some sort of Agreement for your talents.  On the occassion that I do work on a percent the client is normally brought to me by a manager or other industry professional.

I am only writing for myself and as a method of education for the readers who are not currently in the mainstream music business.  Nashville is not a town where many experienced entertainment lawyers work on a percentage basis.  You certainly can ask them but don’t get your feelings hurt if you get a “no”.  Just go to the next person until you find the one that shares your vision.  And if nobody hears it but you and your family and friends then you might need to change your game plan and build a career as an independent.

Legal Fees

I've been thinking a lot about legal fees lately. Not how to get more of them -- but how to set fair fees that make sense to the client in terms of the value of the transaction that I am hired to participate in. I suppose this is on my mind in part because I have had two prospective clients take a step backward from employing me after I quoted fees.

The traditional method of attorney billing is hourly. The attorney keeps track of her time and bills the client based on total time spent. This is usually broken down to the tenth of an hour. I spend a lot of time clock watching when I bill this way -- mostly wondering if I am going over what is a reasonable fee for the project. Since I am a perfectionist and probably spend more time than the client would expect, I normally end up discounting my fees when I am billing by the hour. Usually the client doesn't know that I have done this.

Another way of billing legal work is to set fixed or "flat" fee for a project. This is by far my favorite method, but is a lot more difficult to do than hourly billing. When setting a flat fee I have to consider a lot of factors. Some are: (1) The amount of time I think the work will take. (2) The client's expectations. (3) The value of the deal I am working on for the client. (4) The client's budget for the project. (5) The client's ability to pay. (6) How much is the form I am beginning with worth? I have developed my forms for over 25 years. Honestly, what normally happens when I use flat fees is that I under estimate the time it will take. This is particularly true when I am called upon to negotiate deal points and the actualy agreement. Regardless of the negatives, I am commited to moving away from hourly billing and giving the client some certainty when it comes to legal fees.

Perhaps the better way is to present my fees as "unbundled packages". I have done this often. I try to break out the various steps involved in a particular legal representation, from start to finish, and assign a flat fee to each "unbundled" segment of the process. For example, representing a songwriter in a first time negotiation with a major publisher, some of the components might be: 1) Negotiation of major deal points and meetings with client re same 2) Review of first draft of agreement and discussions/meeting with client re same 3) Preparation of mark-up of first draft, first round negotiation and discussions with client and 4) Subsequent negotiations. I will price each of the forgoing stages separately. I will also give the option of one "all-in" flat fee which, if paid in advance, will be less expensive than purchasing the services in four phases.

I think the important thing for me and my clients is that I stay committed to the process of billing fairly in a manner that gives the client certainty of costs prior to engaging my services. If this is of interest to you, check out Chris Marston's blog.