CROSS-EXAMINING YOUR COUNSEL

Tips for interviewing lawyers to secure the best adult business representation

By: Lawrence G. Walters, Esq.

All right, already. You get it. You're ready to take the advice of all the trade show panels, chat forums, and articles you read, and hire an attorney to represent your adult business. You know that your 2257 Record Keeping compliance needs to be tightened up, and you've always been a little nervous about some of that fetish content, anyway. So now what do you do? Google search? Ask a friend? Contact a referral service?

 

This article will examine what qualifies an attorney to represent an adult website business, and what questions you should ask potential counsel. It is intended for those webmasters seeking counsel for the first time, or those who want to make sure their existing counsel remains the right choice. This has been a repeated topic of discussion at trade shows and other industry events, and will hopefully be useful to newbies and veterans alike.

 

With all the political uncertainty in Washington, DC, adult website operators are reevaluating their current legal practices and preparing for anything. It's been said that this is a good time to know a great lawyer. But what makes a lawyer great? There are great lawyers in various specialty fields. A great personal injury trial lawyer may not be the best choice for adult website operations advice. Similarly, if you have heart disease, you don't go to your family doctor. You look for the best heart surgeon in the country, right? It's the same with lawyers. We're all specialists, now – or should be. The days of the general legal practitioner are long gone. All lawyers have their niche. So what kind of lawyer is best for adult website representation?

 

Obviously, you need an attorney with experience, particularly in the areas of Internet Law, Intellectual Property, and Advertising Law. Operation of an adult website triggers numerous legal issues associated with content clearance and licensing, copyright / trademark registration and enforcement, advertising restrictions, and compliance with federal age verification laws. Your lawyer should have some experience with criminal defense, as well, since many of the issues facing adult webmasters can result in criminal prosecution if the wrong decision is made. There are only a handful of lawyers with relevant experience to competently assist adult website operators. Most are members of the First Amendment Lawyers Association – a group which I served in the capacity of President and National Chairman, in the past. I have been representing adult webmasters since there was such a thing, but the practice area has only been around for about 25 years – unlike other fields of law that have spanned centuries. So, while you may not find a lawyer with substantial Adult Internet Law experience, you should at least eliminate potential candidates who do not have significant experience in the Adult Entertainment Industry in general. The Industry, of which you are a part, has been around since at least the 1950's, when people were thrown in jail for selling Playboy. Many of the lessons learned from the battles involving other types of adult media are extremely useful in representing adult webmasters. For example, the video distributors of the 1980s, during the Regan-Bush Era, fought many of the same types of battles that the Internet industry may be facing today, with potential obscenity prosecutions and restrictive legislation.

 

It is essential that your choice of counsel have experience representing adult industry clients for several reasons: First, adult industry clients are different. While I have considered it an honor to advocate for the right to erotic expression for most of my career, adult industry clients are treated differently by judges and juries, and can be some of the toughest clients to represent in the court of public opinion. Legal arguments that will be readily accepted by the courts, when advanced by “mainstream” litigants, may be summarily rejected when the client is involved in the adult industry. Your lawyer should be accustomed to this treatment, and prepare ahead of time. Adult industry lawyers are also held to a much higher standard in the courts, and must always be more prepared and polished than attorneys in other practice areas.

 

You should not be your attorney's first adult industry client. We've seen it time and time again; the client who comes to us at the last minute because the silk stocking law firm that represented the adult business during the formation stages is ducking for cover when the media is pounding down the door on some high-profile case involving their favorite topic: sex. “Our other clients would not understand,” they say, as the client is shown the door and given the final bill. Your lawyer should be prepared to defend you in the court of public opinion when the going gets tough. If not, you should find one that will. You cannot afford to switch horses midstream. By the time your counsel decides to bail out, it may be too late for another attorney to take over and do a competent job. So ask your lawyer, are you in this for the long haul?

 

Other important questions are:
  1. How many adult industry clients have you represented?
  2. Have you handled any obscenity cases? What was the outcome?
  3. How long have you been keeping up on the legal issues affecting the adult Internet industry?
  4. Are any of your adult industry clients in jail?
  5. Have any been forced out of business?
  6. Will you be my media spokesperson?
  7. Will you represent me on appeal if we lose?
Don't be afraid to interview your attorney. Choosing a lawyer will be one of the most significant decisions you make during the operation of your business. Oftentimes clients are intimidated when it comes to challenging an attorney's experience and qualifications. This is not a time to be bashful.

 

The next issue to explore with your attorney is his or her familiarity with the Internet and possibly mobile applications. Does your candidate for legal counsel speak your language, or will you have to provide an education (on your dime)? Does your lawyer run a website, or a blog? Is he or she active in social networking? Has the lawyer developed any software or mobile applications himself? This is not a field for attorneys who dabble. The bottom line is that you want an attorney who is “connected”, and I don't mean that in the sense it was used 50 years ago. It is a well-publicized fact that most lawyers experience job dissatisfaction. Many are looking to switch practice areas to something that is perceived to be more exciting or “sexy.” While there will always be room in this industry for talented, dedicated attorneys who are willing to fight for the First Amendment, be careful of the lawyer who is shopping around for the next distraction.

 

You should also question your attorney regarding the depth of his or her knowledge about the common legal issues affecting the adult Internet industry. These issues, like the Internet itself, are constantly evolving, and your attorney must stay on top of the changes in caselaw and legislation affecting your business on a daily basis.

 

Some of these important legal issues are:
  1. Obscenity: One of the biggest potential concerns for website operators. Your attorney should have actual experience in this practice area.
  2. Records Keeping and Labeling Act (18 U.S.C. 2257): The most common mistakes adult business operators make are in this category. The details can be tricky, so make sure your lawyer is up on this federal law and on implementing regulations.
  3. Child Pornography: Everybody abhors actual child pornography, but compliance with federal “virtual child pornography” or pandering laws can be more elusive. This Act can be violated even if all your models are over 18. If you get it wrong, the penalties are the same as actual child pornography.
  4. Unfair Trade Practices: Adult webmasters have been prosecuted by the Federal Trade Commission for “unfair” business practices. Adult website operators have been targeted by the FTC for a wide variety of issues relating to promotional tactics, unfair user terms, data security, and billing practices.
  5. Copyright & Trademark: Protecting your brand and your content from intellectual property theft will be one of your lawyer's primary responsibilities. Make sure your lawyer maintains an active copyright and trademark practice.
  6. Human Trafficking: Laws designed to reduce human sex trafficking are more commonly being used against adult website operators – particularly online advertising networks. Your attorney should be familiar with the restrictions and reporting obligations relating to human trafficking at the state and federal levels.
Potential clients often call for a referral to an attorney in their home city or state. While this is a natural inquiry, such geographical limitation has become irrelevant in the Digital Age. Initially, communication has become such that attorneys are instantly able to communicate with clients across the globe. The developments in encrypted communication allow such communications to remain more private than ever. Another important fact to remember is that most of the issues that are likely to affect a website operation are federal or constitutional in nature. That means that the law will be uniform across the country, with the exception of some possible differing interpretations by the local courts. We all share the same First Amendment, and other constitutional protections, so lawyers who have familiarity with these issues can competently advise clients across the country. When local issues do arise, your adult website counsel will engage local counsel to advise on any such issues. Accordingly, you should not exclude any attorney simply on the basis of office location.

 

Operating without competent counsel creates an unacceptable risk. The days of the Wild West are gone, and our industry is under a microscope by state and federal authorities, bolstered by a wide variety of special interest groups that believe pornography is a public health crisis. The large adult video companies who survived the war on pornography during the 1980s have consistently budgeted a significant percentage of their profits for legal representation. While it may have been possible to survive without engaging legal counsel during the infancy of the Internet, the industry has matured and will be held to the same standard as other media interests. Get the most out of your legal budget by identifying the proper specialist for your business.

 

Lawrence G. Walters, Esquire is the managing attorney with Walters Law Group. Mr. Walters represents clients across the globe who are involved in all aspects of adult media. Walters Law Group handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. Nothing in this article constitutes legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at  larry@firstamendment.com or via our contact form:http://www.FirstAmendment.com/contact-us/.