Strikes, Suitemates, And Stuffing A Sock In It

// Posture. I am not using that in the meaning that first comes to mind: how we stand or not, slump or not. There’s a different kind of posture, the posture that we present in litigation and negotiations, the posturing of one position or another, or multiple postures depending on the emergence of facts that either support or don’t support our positions. Our postures change as the facts change.

What does it mean to posture? Does that help in litigation or hurt? (Remember, I am a mediator, so my goal is to help resolve the case, not extend it.) Very few in our heartland (i.e., between the Sierra Nevada — singular, please — and the Hudson River) will care very much about the current labor strife between various entities in the entertainment industry until there’s no new content to watch and stream. (Dinosaurs: remember summer reruns?) The Writers Guild of America has been on strike for almost three full months, and SAG-AFTRA (the actors union) just joined the writers on the picket lines this past Friday.

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Among the issues are those related to salary (top of mind in every strike) and residuals (how much do writers and actors receive when a show runs multiple times). There is also the issue of economic inequality between management and labor (those not in the multi-million-dollar salary categories), and how that gap continues to widen (like other industries).

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What’s different in these walkouts is the looming presence of AI, what to do about it, how to manage it, and how it will affect the industry going forward. This is not an academic question but one that goes to the very essence of how work gets done. (Sound familiar? Of course, it does.) Our profession has similar, but not necessarily identical, concerns, now and in the future.

Right now, the unions have made their demands. The AMPTP (the Alliance of Motion Picture and Television Producers, e.g., the studios, Netflix, Amazon, and others) has made its offer, and the gaps between the sides are the width of the Grand Canyon. A federal mediator was called in at the last minute, but there was no further extension of the SAG-AFTRA strike deadline, so the strikes by both unions are in full swing. Right now, there’s finger-pointing and some trash talking (posturing?) but that doesn’t necessarily last very long when the slog drags on. Positions can harden even more and then it becomes even tougher to resolve due to ego clashes.

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As lawyers, we know, all too well, that no one gets their full wish list satisfied when, inevitably, an agreement is reached. Then the parties must decide whether they can live with the resolution as opposed to hanging tough. Unanswered questions include how much economic pain each side will inflict on the other, just exactly “when” is long enough, and how to avoid the perception that one side or the other will “cave” (a legal term not taught in law school).

When I heard that one side was “celebrating” that the actors would join the writers on the picket lines, I thought that “celebrate” was not the right word. Hardly a festive moment for anyone, and there already is and will continue to be mounting collateral damage for those who provide goods and services to the industry. It’s not just the weather temperatures that are rising. It will take time even to get the parties in the same room, let alone talking again.

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On another subject, solos and small firm practices should be especially interested in this brand new ethics opinion from the ABA discussing office-sharing. The opinion says to be careful whom you share space with, that conflicts and ethical issues regarding representation can lurk, especially when it comes to client confidentiality. So how does this work in the real world?

Are potential suitemates obligated to find out who other lawyers in the suite have as clients? Would that be a breach of client confidentiality? Often, law suites share printers, scanners, and other office equipment. How to make sure that another person in the suite doesn’t pick up a suitemate’s document by mistake? Are attorneys required to lock up all files (even those presently being worked on) at the end of every workday? Some due diligence is a good idea, but how far should this due diligence go?

The opinion reminds attorneys sharing office space to avoid imputation of conflicts, such as taking on potential new matters adverse to clients represented by other office-sharing lawyers, as well as potential pitfalls when consulting with fellow suitemates. Every situation is fact specific, but the opinion says that lawyers in the same office who represent clients with adverse interests may be obligated to disclose the details of the office-sharing arrangement to their clients, including efforts to maintain confidentiality, and to obtain each client’s informed written consent. Easier said than done? And what about if office space is shared with other professionals, such as CPAs?

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And last, but not least, is anyone else tired of all the “humble brags” on LinkedIn? Marketing gurus advocate that there is no such thing as too much posting and stress that there’s always the need to be top of mind. But at some point, at least to me, and I can’t believe I am the only one, the consistent “it’s all about me” is a turnoff. And no, I am not making that up: Exhibit A for the “humble brag” is the woman who wanted to include her class rank in her wedding vows.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

Topics

Biglaw, Jill Switzer, Labor / Employment, Mediation, Negotiations