CROSS-EXAMINING YOUR COUNSEL

All right, already. You get it. You're ready to take the advice of all the resource sites, chat rooms and articles you've read, and hire an attorney. You know that your Record Keeping compliance needs to be tightened up, and you've always been a little nervous about that fetish gallery, anyway. So now what do you do? Open the yellow pages? Call the local bar association?

This article will examine what qualifies an attorney to represent an adult website, 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 is the right choice. This was a topic of much interest and discussion at the recent Internext convention, and will hopefully be useful to newbies and veterans alike.

It's been said that this is a good time to know a great lawyer. But what makes a lawyer great? If you have heart disease, you don't go to your family practitioner. You look for the best heart surgeon in the country, right? It's the same with lawyers. We're all specialists these days, or should be. The days of the general 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, but the Internet has not been around that long, so no lawyer has much Adult Internet Law experience. My partner, Clyde DeWitt, and I have been representing adult webmasters since there was such a thing, but the practice area is less than a decade old. So, while you may not find a lawyer with much 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 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 1980's, during the Regan-Bush Era, fought many of the same types of battles that the Internet industry is facing currently.

It is essential that your choice of counsel have experience representing adult industry clients for several reasons: First, adult industry clients are different. They are treated differently by judges and juries, and can be some of the toughest clients to represent. Legal arguments that will be readily accepted by the courts, when advanced by “mainstream” litigants, will 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 held to a much higher standard in the courts, and must always be more prepared 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 wouldn't understand,” they say. Your lawyer should be prepared to defend you in the court of popular 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. How long have you been keeping up on the legal issues affecting adult industry webmasters?
3. Are any of your adult industry clients in jail?
4. Have any been forced out of business?
5. Will you be my media spokesperson?
6. Will you represent me on appeal if we lose?

The next issue to explore with your attorney is his or her familiarity with the Internet. There are two types of people these days: Those who have adopted the web lifestyle, and those who have not. Does your lawyer have a website? Does he know what a cgi script is? A TGP, or metatags? Do you want to pay for him to learn? 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 cutting edge. 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: Possibly the greatest concern for webmasters, and the biggest threat to the Industry. 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 webmasters 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 the federal “virtual child pornography” law 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. A California court recently ruled that a common Term of Service constitutes an “unfair” trade practice. This category is expected to grow in importance.
5. Copyright & Trademark: Protecting your site from intellectual property theft will be one of your lawyer's primary responsibilities.
6. Harmful Material and COPA: Keeping minors from accessing images of sexual activity on your site may be the difference between an obscenity prosecution and a successful business. The law in this area is in a state of flux, and should be closely monitored by your attorney.

Operating without competent counsel is simply an unacceptable risk these days. The days of the Wild Wild West are gone, and our Industry is under a microscope by both the federal government, and numerous morality groups. The large adult video companies who survived the war on pornography during the '80s, 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 responsible for its actions. Get the most out of your legal budget by identifying the proper specialist for your business.

Lawrence G. Walters, Esquire is a partner with the law firm Walters Law Group. Mr. Walters represents clients 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. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at larry@firstamendment.com or www.FirstAmendment.com.