How to Hire an Adult Entertainment Attorney for Your Adult Online Business

The Best Advice You Will Ever Read About Hiring an Adult Entertainment Lawyer for Your Web Operation

        By J. D. Obenberger, Attorney at Law

        This article was featured in the Summer Show Edition of AVN Magazine, August, 2010. 


When, over one hundred years ago, the titans of newspaper and magazine publication began their enterprises, investing huge sums in presses, distribution vehicles, the salaries of writers and printers and advertising salesmen, the very size of the venture and of the capital investment loudly announced to each of the moguls that, to protect the investment, these publishers needed get the advice and services of lawyers. That’s exactly what they did and their enterprises prospered. 

Today, the humblest webmaster with the most modest out-of-pocket investment easily and conveniently reaches an audience that would make William Randolph Hearst jealous. But, that webmaster faces the same potential liability for defamation, for copyright infringement, for the violation of people’s exclusive rights to the commercial exploitation of their images, just as great as Hearst faced - as well as other potential hazards unknown to Hearst – such as obscenity and Section 2257. Actually, considering that people’s nudity and most intimate activities are involved in a wide part of adult content, and because of far-reaching developments in the law of privacy since that time, the potential risks of liability for violation of privacy rights you face is much greater that Hearst’s. The very quiet way in which online adult businesses develop fails to ring any bell suggesting when it’s prudent and necessary to get legal support.

Stealing terms of service or model releases or Section 2257 Notices puts you at risk of copying the mistakes made by others, lawyers or otherwise. When adult entertainment lawyers meet, a light-hearted conversation sometimes takes place regarding the strangest, weirdest, and most clueless 2257 notices that we’ve read, sometimes using language that hasn’t been close to compliant since 2006. But there’s nothing funny about the penalties and liabilities this feeble kind of self-help legal writing may generate. Lives can be destroyed by long prison sentences and crippling judgments.

The Search for the Kind of Lawyer Who Can Protect You

Adult entertainment businesses share many of the same needs for legal services encountered by any other kind of business – the establishment of a legal business organization, employer/employee relations, contract disputes, and the like. But there are a limited number of topics in which the adult nature of the business makes even ordinary business issues different, even beyond things considered unique and special to the adult world, like obscenity and Section 2257 – perhaps a special need for anonymity in the creation of a business entity and maybe zoning and licensing laws as well. 

Don’t get me wrong: I believe that it’s essential and fundamental that the owner of every adult business should have a general business lawyer close to him or her, admitted in his jurisdiction, physically able to appear whenever there is an interface with official authority, knowledgeable about corporate organization, taxation, and local business and zoning regulations; I’d hope he or she would also have at least some knowledge about what gets prosecuted for obscenity at the local level from some experience handling at least small criminal matters and from membership in the local legal community. You can most easily find such a lawyer by talking with the owners of other small businesses in your own community. This kind of general business lawyer is an essential part of what even the smallest web entrepreneur needs. He’ll be good at the kind of things that are driven mainly by local legislation - and at the tasks that are often far removed from the issues that interest, drive, and motivate First Amendment lawyers. Lawyers who concentrate on the defense of erotic publications sometime choose that field precisely to get away from work that can be repetitive and boring. (Finally, your First Amendment representation is materially enhanced if you also have a lawyer who can get to your place of business promptly when a search warrant is executed or a records inspection conducted, and who can work in close co-ordination with your free speech lawyer by phone.)

There really are some parts of the law that are special to online publications in general and adult entertainment sites in particular and they lie far outside of the knowledge and experience of most business lawyers. These include the law of obscenity, compliance with Title 18 United States Code Section 2257, copyright law, the right of publicity and the rights of models and performers, the laws associated with the protection of children from adult content material, the potential application of adult use restrictive zoning and licensing, child pornography and the laws that deal with simulations of sex, and certain areas of employment and taxation law. These areas change with every new case and with frequent statutory and administrative enactments in a way that is hard for a lawyer with a general practice to notice; but somebody needs to be paying attention to these matters to keep you safe.

You Need To Establish a Team

Even in the smallest online business, there should be a legal team of a primary local business attorney generalist who is local to you and an adult entertainment lawyer.

It would be a serious mistake to create an adult film, video, or even still images without a solid grounding in all of the legal risks and obligations that exist and without a strategy about how to reduce those risks and comply with those obligations. You really can't get solid advice about that from an adult entertainment lawyer who has no experience in defending people involved in adult filmmaking and adult video creation against adverse action from the government.

On a practical level, it is necessary for an online adult business to bring in an experienced adult entertainment lawyer/First Amendment lawyer to guide, counsel, and if necessary, defend the very special issues, usually issues chiefly concerning federal constitutional and statutory law, unique to the adult sphere. While the ethics codes that govern attorney conduct and advertising in every jurisdiction prohibit lawyers from advertising that they are “specialists” or that they are better in performing some legal tasks in the absence of an official state “certification” program, and while no such certification as an adult entertainment law specialist exists in any jurisdiction, the truth is that only a comparatively small number of attorneys have any substantial experience and knowledge broadly concerning the operations of online adult businesses. 

It is impossible in most parts of the United States to find a local lawyer who possesses much experience and knowledge in the issues distinctive to adult online businesses outside of California and Florida; outside those states, the qualified lawyers are dispersed widely and thinly. This creates very practical problems for content producers and webmasters who are also dispersed widely through the country. 

If you are located outside those places, the best solution is to consider geography and jurisdiction strongly in selecting your local business attorney, and to consider experience, talent, and knowledge more than geography in selecting an adult entertainment/First Amendment lawyer.

Time is sometimes critical, especially when a search warrant is being executed against you or a Section 2257 inspection is taking place, or when you have been arrested and are facing interrogation and a bond hearing that will determine your freedom or incarceration in the short range. Your best plan, if you cannot find an experienced adult lawyer within driving range of your hometown, is to have both attorneys in place, in advance, a local general business lawyer and the seasoned adult practicioner. They should know each other - and it's helpful if they have developed mutual respect before critical events take place. When trouble erupts, your local lawyer can get to the scene rapidly and work in close co-ordination with the adult lawyer who can advise him and recommend steps to preserve evidence of every irregularity and violation of your rights (they are different from the rights of a person in a routine general crime case, and the required procecures are different, too) and to make prompt and effective demand for their redress. Cases have been won and prosecutions terminated because of this prompt, on-the-spot work, and I have no doubt that cases have been lost and people have been convicted because prompt and effective steps were not taken. Moreover, if the matter proceeds to court, your general attorney can greatly assist your adult lawyer in getting specially admitted (pro hac vice) by the court for your case, as is generally your right under the Sixth Amendment, to actually take charge of your defense and fight on the ground. 

How do you find an attorney competent to handle cases arising from the publication and creation of sexually explicit content?

The First Amendment Lawyers' Association

I’d start with the First Amendment Lawyers’ Association. I would never advise anyone to hire an adult entertainment lawyer from outside the ranks of this group – and I base that on nearly ten years of acquaintance with members of FALA – and ten years having sporadic contact with lawyers who do not belong to that group. FALA is an organization of about 200 lawyers across the country who, individually, and sometimes in collaboration with other members, handle the large bulk of the most important cutting-edge cases concerning adult entertainment. It’s not a law firm; it’s an association of lawyers. The lawyers for each of the best known names in adult entertainment essentially all belong to FALA. Twice per year they meet and some members prepare and present elaborate presentations to the other members on the most recent legal developments - on cases in each of the areas important to adult entertainment and new statutes and regulations - and on a basically daily basis, the FALA communicate about news and cases online, sharing ideas and information with each other. Members are able in this way to keep a close pulse on legal developments as they happen, often directly with the lawyers handling the matter. While I am told that one-upon-a-time, membership was highly selective and a strong indication of competence, it can’t be said that membership in FALA guarantees any such thing now. It is not a substitute for certification. What membership in FALA does establish, though, is that the attorney is seriously committed to this branch of law, that he is part of a community with the best adult lawyers in the country, that he is in contact with highly competent lawyers who frequently will go far to help a brother or sister member, and that he or she is oriented at protecting expressive rights rather than stifling or repressing or prosecuting them. My own experience is that some of the very finest, most competent, and most dedicated lawyers I’ve ever known are committed members of FALA. That being said, only a comparative handful have had direct experience with the creation of content for online use and its publication on websites. Your first task in screening is to identify lawyers whose experience and knowledge qualify them to advise you through the rapidly changing currents of internet law and the membership roster of this organization is where you should start.

It is critical to find a lawyer who aims to serve and protect his clients as his primary professional and personal purpose, and you should closely keep this in mind, even when you charter an attorney from FALA, the finest stable of adult lawyers in the world. It’s my opinion that your chances of doing so are far greater among the ranks of FALA than outside of it. Your lawyer must be deeply committed to personal liberty, free choice, and personal privacy, and these values must be fused to every nerve and sinew of his being. However, this also introduces the need to provide you with two cautions. 

The Personality of Your Protector

First, it takes a special and nonconformist personality type to stand alone in a courtroom proudly and sometimes defiantly representing clients who are viewed by most of society as opportunistic vermin, exploitative, low-life pornographers. Whatever may be the reasons driving these lawyers, much of what they argue is likely to seem outrageous and unsupportable, at least at first blush, to other lawyers and to judges. While the ethics books preach to lawyers that they should never reject any client because he is unpopular or distasteful, the truth is that many lawyers lack the courage or inclination to represent unpopular and nearly-universally-derided clients and causes. So, the odds are that the lawyer who handles the kinds of cases for which you need him is going to be a maverick nonconformist at root. The American tradition finds some kinds of mavericks attractive and actually admires them - original thinkers with strong vision fighting long odds for their ideals, People like Edgar Allen Poe and Thoreau and Thomas Edison and even General Patton come to mind. But our society doesn’t find people at war with the world very attractive. Think about Eugene Debbs and Charles Manson and Jane Fonda. Because your lawyer will become your fighter in the ring, your potential spokesman in court and out, your future, your liberty, and your success may ride with him. While it is important that he is maverick enough to stand next to you and proudly protect you with all that he has, it may not be prudent to chose a protector who looks, talks, and walks as though he is alien to the culture from which judges and jurors are drawn. Perhaps it is reasonable to say that. the more extreme the content you may need to defend, the more conventionally appearing a lawyer you would prudently need to engage. One of my clients whose many legal battles over thirty years against many governmental restrictions on erotic entertainment once told me that he’d allow only one personal eccentricity in the appearance of his lawyer in court – long hair, a mustache, or perhaps a beard, an earring or a piercing, but never more than one such eccentricity for fear of alienating a jury. It’s a commonly believed wisdom that a man charged with sexual assault benefits his chances by hiring a woman to defend him. Thirty years as a lawyer have taught me that looks, bearing, and style count in close cases, that a jury trial requires that bridges be built between defendant and jury, and that it is hard sometimes to build them from a shore too distant; as an example, I think it is for that reason that the State’s Attorneys prosecuting serious felonies in Chicago all wear white shirts. It has to do with establishing solidity and inspiring trust among the jurors. Obviously this varies from region to region, and may be that LA or San Francisco juries are made up of people who are not so much affected by eccentricity as juries in less cosmopolitan places. This problem becomes especially important when you need a lawyer to go to places like Louisiana or Kentucky or Kansas.

Second, I would caution you that some attorneys in this arena are motivated primarily because they wish to serve as a motive force to change and transform society in “progressive” directions and that they practice law chiefly to find vehicles to advance their own philosophical agendas. There can be some danger in becoming the client of a lawyer who sees you a means to his philosophical end, especially if his agenda and your personal needs are not entirely congruent. Whatever a lawyer’s personal beliefs and ideals may be, they must take a back seat to advancing his own particular client’s interests; it requires a competent and truly professional lawyer to argue positions for you that oppose what he believes; He must be able to do that without evidence of insincerity for even one second. It doesn’t take much professionalism at all to argue what you agree with, but is the distinctive mark of a true professional that he can enthusiastically and zealously argue as your needs require. Your attorney must believe that your protection comes first, foremost, and as his sole interest throughout his representation.

The Values of Your Champion

You should try to hire a lawyer who loves his clients as himself, and gives to them the fullest measure of his ability and support. I’ve said those words to large numbers of lawyers in continuing legal education seminars since 1982, and they remain startling to many members of my profession. These words sometimes cause lawyers to laugh when they hear them, because so much of professional legal culture emphasizes maintaining professional distance. In my opinion, there is no disharmony between caring about your client, using every part of yourself to protect him - and professionalism; In my view of things, professionalism requires a lawyer to do for his client exactly what he would want done for him were the positions reversed and to do it with zeal, determination, and a sense of personal fulfillment. Without a human connection, your attorney can never understand you and you will never understand him. Some professionals affect an icy and distant detachment designed to impress their clients and patients, but I think this approach to be corrosive to solid attorney-client relationship. If your lawyer doesn’t understand you as a person and care for you as a person, I think, given the imprecision of language, that there is serious risk that he will misunderstand important things you need to communicate to him.

You need a lawyer who understands that no legal right really exists until he or she brings it to life in a court of law; your lawyer  must be willing to boldly make the words of the law breathe in court on your behalf. Legal rights are not just the abstract musings of law review articles or mere verbiage. 

He must not steer you into pleading guilty because he’s afraid of a fight. Every defense lawyer has a duty to fully investigate into charges and to fearlessly explore every avenue of defeating the charges. He cannot and must not propose a guilty plea until, after such investigation, and thorough deliberation, he has excluded every avenue of an acquittal as  a reasonable prospect, and only then finds it in your best interest to plead. Every defense lawyer encounters unbeatable cases, and sometimes it is a lawyer’s toughest job to convince his client that a guilty plea is his best option. But it is not his choice, it is yours, and if the truth be told, sometimes the lawyer is wrong. Sometimes a defiant client will demand trial against advice; the lawyer, if he is professional will fight like all hell for him, and in the end, with an acquittal in hand, the defense lawyer is the most surprised person in the courtroom. I guarantee you that this happens. Lots of surprises take place every day in every courthouse in the country because trials, depending on people, can’t be predicted with precision any more than any other human institution. I would caution you against lawyers who are not fit to try your case and you should seek a lawyer who will enthusiastically advocate for you, even if the decision to try the case is against his or her advice. 

Finally, you need a lawyer who is not too full of himself. Clients tell me that some lawyers insist on retainer clauses that assure reimbursement for first-class air transportation and other such amenities. I don’t know if that’s true, but the information came from credible sources. Many lawyers, including this one, are proud of what they do, and proud of the long years and difficulties that each surmounted to become a lawyer. But all of this makes a lawyer no better than anyone else. Lawyers should be judged as to whether they can advance the interests of their clients and hopefully, make a significant and positive change in the client’s life. A lawyer who descends from Olympus and condescends to represent clients, no matter how capable he may be, presents an image to your adversaries that makes him a singularly interesting target. It’s speculated that some lawyers hire media consultants to book appearances for them in the media. A lawyer who beats his own drum overmuch should probably give you some pause. A good reputation is a thing of inestimable value, but in the end, it is not created by the media, but it lives and breathes in the lives he’s touched and turned around - and in the ideals of freedom that he’s upheld against opposition. I like a lawyer who answers his own phones. It tells me that he isn’t trying to avoid bill collectors and disgruntled former clients. I like a lawyer who worked his way through school laboring shoulder to shoulder with a construction crew or in a factory or who served a stint in the Army or Navy, or even in scrubbing toilets. A good trial lawyer needs to understand people to win cases, and nothing taught in any law school teaches you as much about people as working hard with ordinary people, sharing their dreams, hopes, and fears.

What to Ask a Lawyer Before Hiring Him for an Online Adult Business.

I'd ask a lawyer at the outset if he is a member of FALA - the First Amendment Lawyers' Association. My own judgment is that, if he were not a member, that would be the end of the discussion. 

I'd ask him if necessary travel will be coach or 1st Class. 

I'd ask him if he's ever hired a media consultant. 

I'd ask him to what agendas he's devoted free, pro bono legal services. 

I'd ask him where I fit in his scheme of priorities. 

I'd ask whether I will get his cell phone number and be able to call him at 3 a.m. if there's trouble or I can't get to sleep worrying about something that happened in my business.

I'd ask him how many cases he's tried before a jury himself, what kind of cases they were, and how they turned out.

I'd ask him about obscenity prosecutions in particular. How many of his clients have walked away without pleading guilty? How many have pled guilty to something?  It is a measure of last resort. Only when you plead guilty does the prosecution have no chance to lose.

I'd ask him how interested and motivated he is to actually defend an obscenity case in a court of law. I'd learn about his background and find out whether he has ever actually defended any criminal case in a jury trial. This will tell you something about whether he is the kind of lawyer who talks a good game, but in the end is thinking more of his reputation, who avoids risks by pressuring his clients to plead guilty in order to eliminate any possibility of damaging it. Sometimes, a guiilty plea is is the only smart decision. But that  determination should be made only after a complete investigation and a thorough assessment of the facts, and then, only reluctantly after eliminating every option to fight the charges. Your own best interests are all that count in this decision, not the pride of any lawyer or his desire to save his prestige by avoiding the possibility of losing.

I would ask him how many motions to suppress evidence he's brought to hearing and I'd ask about the results.

I would do all of this in order to help understand the candidate, to determine whether he's genuine, to learn just how interested in my welfare he is, and just how capable he would be of actually defending me, actually fighting for me in a court of law, were it to come down to that.

How should a relationship with a lawyer be structured?

I’ve never thought it wise to hire a lawyer in this field as though for just a particular task. I think every client needs an ongoing relationship with someone he can call or email when fear abides or trouble looms, while there is time to make a difference in the outcome. Someone who knows each client, his values, his work, his resources, and who can step in on the basis of that prior relationship and give solid advice. I think the quality of work emerging from an ongoing relationship is almost certainly better than what emerges from a template. One size does not fit all. You need a relationship that is deeper than a form or template if you want real legal protection. Forms have a necessary role, but often, how they were used and what really happened can take the front seat in a dispute. You need to learn from a lawyer the smart way to do business, and that doesn’t come from a form.

The structure of your relationship should be defined in a written retainer agreement that lays out all of the things you expect from your lawyer, the terms by which he will deliver them, and your obligations to him, financial and otherwise.

- In most – but not all – American jurisdictions – attorney and client are free to set fees as they wish, by the hour, by the day, or a set amount for a particular service or set of services. In places where it is permitted, a flat rate sometimes is a good device to contain costs and to eliminate payment issues – an issue that can affect and infect the relationship down the road. (From a client’s point of view, I think the last thing I’d want is an attorney who is worrying about whether he will get paid and how to pay the rent and salaries if he isn’t paid; I’d prefer that he’d be thinking about how to win my case and nothing else.) The downside, though, is that an intelligent lawyer will set a flat fee that gives him a margin of protection should the work be unexpectedly more complicated than it appears, and so the set price may cost you more than payment under an hourly agreement. 

- If the completion of a task on a particular schedule is important to you, this can and should be set out in an agreement. 

- If there is a dispute concerning billing, is there a provision for simple arbitration by a professional group or otherwise? 

- Hourly rates vary significantly in different parts of the country; in particular, I know that the usual and customary fees charged by New York City, East Coast, and LA firms are significantly higher than the rates prevailing in other parts of the country and in smaller metropolitan areas. This may be a function of the cost of living and the costs incurred by any business or professional practice. With respect to adult entertainment services, work of equal quality may be obtained at different costs depending on where your lawyer lives and practices.

- Who will own the copyright on documents prepared for you? In the absence of language to the contrary, it belongs to the attorney.

- Do not neglect the issues of travel costs, filing fees, and other out-of-pocket expenses incurred in your representation. If you have concerns in line with your expectations about what you will be charged for, it is wise to reflect, for example, that you will not be liable to reimburse first class air travel unless no other timely alternative is available.

Be careful about the use of the word, “retainer”, because it means many things, some of which are largely inconsistent with one another. It can be used to describe a sum which the client entrusts to the attorney and his client trust account, to be held on his behalf there to secure future payment as statements are generated and given to the client for examination. But it may also mean a flat rate paid to perform a particular service or bundle of services. Finally, it may mean the written agreement itself by which the relationship is structured.

How Clients Should be Treated.

Never forget that, as a client, you are the most indispensable member of the legal team. Without you and the threats you face, there is no need for a legal team at all. Only you can decide whether to testify in a criminal case, whether to demand a jury, and how to plead. You alone chose who your advocate will be. In civil matters, only you can decide to settle a case and bring it to an end. 

A client must be treated with respect, courtesy, and civility at all times. You are not out of line to demand that your  phone calls are returned promptly and your that your emails get a prompt reply. In this kind of law, you should have a number by which you can reach your attorney at all times, night and day, no matter where in the world he may be. I think you can fairly judge a lawyer by the way he answers his phone and how he acts when you reach out to him. Correspondingly, it is essential that your attorney can reach you at all times, that you return his calls and respond to his email, and that you pay his legitimate bills. Like all other relationships in this world, it is a two-way street.

A Lawyer for the Dark, Midnight Hour of Your Soul.

How best can you zero in on a lawyer who can serve you capably and with whom you can establish the kind of solid relationship, based on trust? What a lawyer’s clients have to say about him is probably the best evidence you can obtain. Not just one or two, but what a handful say. After screening the lawyer, consult with him for an hour or two. You will learn how broad or narrow his experience and knowledge are from his response to your questions. You will get a sense of whether you will be understood and whether he understands you. You will get a sense of his values and priorities, his devotion or lack of devotion to the principles that protect your and your online business. Though all of this is approximate, you should, after that consultation, get a feel for whether you can trust his advice, and just as importantly, that you can trust him to be there for you should a dark midnight hour of your soul ever emerge in crisis – and to prevent that crisis if you and he can. 

Character and Its Composition.

I would discourage anyone from hiring an attorney who makes his living by selling forms online. In my estimation, that simply is not the practice of law. One size does not fit all. I would especially avoid hiring an attorney who sells forms at retail or who markets admission to a pay web site that offers forms.  Those who seek their legal solutions from those packages or from free forms available online, or from a cheap form kit, stand some chance of learning the hard way that the US Attorney’s office does not buy its supporting affidavits for search warrant or indictments as a $99.95 online form kit or from a $49.95 per month subscription to a site. The prosecutors will apply real legal talent to acquire evidence of wrongdoing, to prosecute it, and to punish it. Those who wish to avoid learning painful and expensive lessons about how the US Attorney does business are best advised to secure the services of a navigator who knows something about the sea in which the adult webmaster and content provider swims. 

I would certainly look at what any lawyer says about himself. If he presents himself as a tool to make lots of money fast, with a sales pitch audio track on every page of his site, and every if every page of that site were festooned with nearly naked women and expensive cars and the suggestion that both will fall rapidly into the arms of his retaining clients, the inference that I would draw would not be positive.

And Finally, About You.

The adult web tends to attract ruggedly take-charge self-reliant entrepreneurs, the exact kind of people who hate lawyers more than average. Those who can’t deal with those feelings and overcome them should be prepared to take up residence in certain institutions that are just crammed with people who hate lawyers.

If you are serious about establishing yourself in the Adult Industry, you will need a lawyer.

Yes, this office is available for consultation, representation, and defense of your business.

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Copyright 2010-2012 J. D. Obenberger. All rights reserved.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net. 

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.