2015 NJSBA Annual Meeting Ethics and Professionalism Track Civility in Entertainment

2015 NJSBA Annual Meeting

Ethics and Professionalism Track

Civility in Entertainment Law …and Elsewhere Co-Sponsored by the Entertainment Arts & Sports Law Section

Speakers: Ronald S. Bienstock, Esq. Bienstock & Michael, P.C., Hackensack David S. Gold, Esq. Cole Schotz, Hackensack Prof. George Dassinger William Paterson University

© 2015 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520.

The material contained in these pages is for educational purposes only and not intended as a substitute for the professional services an attorney would normally provide to a client, including up to the minute legal research. Model Rules of Professional Conduct: Preamble & Scope | The Center for Professional Responsibility

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Home > ABA Groups > Center for Professional Responsibility > Publications > Model Rules of Professional Conduct > Model Rules of Professional Conduct: Preamble & Scope

Model Rules of Professional Conduct: Preamble & Scope Print Feedback ShareThis A A Advertisement Preamble And Scope

PREAMBLE: A LAWYER'S RESPONSIBILITIES

[1] A lawyer, as a member of the legal profession, is a ABA GROUPS representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Model Rules of Professional Conduct [2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed Model Rules of understanding of the client's legal rights and obligations and Professional Conduct: explains their practical implications. As advocate, a lawyer zealously Table of Contents asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client Alphabetical List of States but consistent with requirements of honest dealings with others. As Adopting Model Rules an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others. Chronological List of States Adopting Model [3] In addition to these representational functions, a lawyer may Rules serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third- party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.

[4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

[5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.

[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope.html[5/1/2015 10:23:22 AM] Model Rules of Professional Conduct: Preamble & Scope | The Center for Professional Responsibility

a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.

[8] A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.

[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

[10] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

[11] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

[12] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.

SCOPE

[14] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.

[15] The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law.

[16] Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.

[17] Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client- lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.

[18] Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.

[19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.

[20] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.

The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.

[21] The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.

Preface | Chairperson's Introduction | Ethics 2000 Chair's Introduction | Table of Contents

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http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope.html[5/1/2015 10:23:22 AM]

GEORGE W. DASSINGER

George W. Dassinger has been running his own public relations/marketing/media management company for over 25 years - representing such clients as: LITTLE ANTHONY & THE IMPERIALS, FUENTE CIGARS (documentary - nominated for a Satellite Award), ZZ TOP (DELTA BLUES MUSEUM – Clarksdale, MS. – state’s #1 tourist attraction), supermodel NIKI TAYLOR (for 10 years-including her sponsors Cover Girl, Nokia, Liz Claiborne), TYRA BANKS, LIV TYLER, (Country hit-makers) RESTLESS HEART and songstress PATTY LOVELESS, songwriter JOHN PRINE (Grammy winning campaign), IMG MODELS – NEW YORK and THE COMPLETE LES MIZ (Grammy winning campaign #2) launch. With distinct “news”, images, product placements, column items and sales/marketing concepts, Dassinger’s personal approach to “public relations and media marketing” has provided him with a professional career of over 35 years: ROGERS & COWAN (VP – Corporate Entertainment Division in New York), ELEKTRA RECORDS (VP) and then forming an independent “PRkting company” - DASSINGER CREATIVE SERVICES.

At ROGERS & COWAN (1978-‘83) Dassinger rose to a VP position representing a host of entertainment and corporate clients including: THE BEACH BOYS, ASHFORD & SIMPSON, PINK FLOYD (“The Wall Tour”), AEROSMITH, VAN HALEN, WINGS, ANDY GIBB, KENNY ROGERS (music and CBS-TV specials), RICK JAMES, TED NUGENT, CHICAGO, TAVARES, THE BEE GEES, CARLIN MUSIC, PAUL WILLIAMS, VICTOR KIAM/REMINGTON PRODUCTS COMPANY, RJR, MOET, (soccer) TEAM AMERICA, (baseball) Hall of Famer GEORGE FOSTER, (boxing champ) KEN NORTON, AMF’s “Heavyhands” launch, TEXAS INSTRUMENTS, GRACELAND’s opening day, the 1982 WORLD’S FAIR/Knoxville, TN., MASTERCARD’s 1st hologram card and ‘70’s cult classic/Queen scored - “FLASH GORDON” movie.

Joining ELEKTRA RECORDS (WEA) as their VP/National Information (1983-86), Dassinger orchestrated the “platinum” campaigns for the following artists/groups: (Multi-Grammy winner) ANITA BAKER, THE CARS, MOTLEY CRUE (cover of Rolling Stone), METALLICA, JACKSON BROWNE, SIMPLY RED, THE CURE, THE DOORS, DOKKEN (“NIGHTMARE OF ELM STREET – Dream Warriors”),TEDDY PENDERGRASS, LINDA RONSTADT (“LUSH LIFE” trilogy), (late) GROVER WASHINGTON JR. and the solo albums by (late) BEN ORR and ELLIOT EASTON (The Cars),. He promoted a number of specialized Elektra boxed album sets - “BLEEKER & MacDOUGAL”. THE DOORS first long-form concert video,”DOORS LIVE AT THE HOLLYWOOD BOWL” and MOTLEY CRUE’s “GIRLS, GIRLS, GIRLS” video - both commercial breakthroughs - helped promote Elektra to the #1 label in the mid-1980s.

(2)

Dassinger was awarded gold and multi-platinum records (sales of half million to a million) for the following campaigns: Metallica, Motley Crue, Anita Baker, Simply Red, Linda Ronstadt, Dokken, The Cure (to name a few) while at Elektra Records.

Dassinger is also an adjunct professor at WILLIAM PATERSON UNIVERSITY (located in Wayne, New Jersey) teaching a self-styled/hands-on course for 17 (out of the 20) years teaching, as a part of WPU’s Music Studies Program. The hands-on pr/marketing class and the university were featured in the NEW YORK TIMES (April 2001), HERALD NEWS, THE RECORD, PR Week and MONTCLAIR TIMES.

Dassinger is 65 years old, married with two grown children (Stephanie and Michael) and a 14 year old daughter, MaiLin. He is longtime resident of northern New Jersey. A college graduate - Bloomfield College/BA - Business Administration, a member of “Who’s Who In American Colleges”, and upon graduating, the editor/writer of two weekly New Jersey entertainment/music weeklies (‘70s and ‘80s): The Aquarian and Spectrum.

Currently, Dassinger is celebrating 28 years as an independent corporate and entertainment – “PRkting” - public relations/marketing consultant. Dassinger was a guest panelist at the Entertainment Publicists Professional Society (EPPS) talking about the “how to - public relations today”. And, the presenter, awarding Little Anthony & The Imperials with a Lifetime Icon Achievement Award at Rock Con 2010 and a panelist at the Country Radio Seminar 2014.

The William Paterson University class (in its 20th year) was behind the WP 88.7 FM “Brave-athon”. The class initiated the “Bravery In Radio Award” and past winners included: the (late) Les Paul, Bruce Morrow, Howard Stern/Robin Quivers and Elvis Duran. The class guides and coaches the students with a unique academic “on the job training”. A campaign “representing a real client” has proven successful for all involved.

“I’ve had quite an on-going career and it’s provided me with visits to the White House, extensive travel, family time, celebrity associations, career accomplishments, awards, a university teaching position, corporate campaign successes and charitable work: UNICEF, Save The Children, Cystic Fibrosis, Variety Club, VH1 Music Cares, The National Jazz Museum in Harlem, WHY/Hungerthon 2010 and 2014. The Women And Cancer Fund – established in the memory of Linda McCartney, and the ZZ Top - led fundraising to build the Delta Blues Museum – Clarksdale, MS – 25 years ago.”

Currently representing: Little Anthony & The Imperials 2015 - 2009 Rock Hall of Fame induction campaign – Little Anthony: My Journey – My Destiny (Mascot Books), Reviver Records, Russian TV host – performer Oleg Frish and the Alan Aldridge Beatles illustrated lyrics art 18-month calendar. # # # Email address: [email protected] - site: dassingercreative.com David S. Gold

Associate TEL: 201-525-6305 MOBILE: 914-629-0308 FAX: 201-678-6305 [email protected]

David S. Gold is an Associate in the firm’s Intellectual Property and Litigation Departments.

Mr. Gold’s intellectual property practice focuses on the counseling and representation of a wide range of individual and corporate clients in connection with the use and protection of their intellectual property portfolios including copyrights, trademarks, and patents. He represents artists, arts organizations, and companies in copyright infringement disputes and the enforcement of various rights afforded under the United States Copyright Act, the Digital Millennium Copyright Act, and other federal and state laws. Mr. Gold also handles disputes and provides counseling in the areas of patents, trademarks, trade dress, trade secrets, unfair competition, defamation and privacy rights.

Mr. Gold also consults clients in connection with the registration of copyrights with the United States Copyright Office and related matters such as copyright assignment and licensing. He also represents musicians and corporate clients in negotiations involving major performing rights organizations including the American Society of Composers, Authors and Publishers (ASCAP).

In his civil and commercial litigation practice, Mr. Gold has successfully represented clients in state and federal court in matters concerning contracts, insurance disputes, claims of fraud, employment law, property tax appeals, shareholder/partnership discord, professional liability, and commercial transactions.

Mr. Gold is active in a host of industry organizations including the New York State Bar Association, the Entertainment, Arts and Sports Law Section and Intellectual Property Law Section’s of the New Jersey State Bar Association, the Bergen County Bar Association, and the John C. Lifland American Inn of Court. He is on the Board of Directors of the New Jersey Volunteer Lawyers for the Arts (NJVLA) and the New York Metropolitan Symphony, “Music With a Cause,” an organization he helped found to draw attention to and support a variety of beneficial causes.

A former summer associate, Mr. Gold graduated from Rutgers School of Law – Newark, where he received distinction as the 2009 Myron S. Harkavy Scholar for Excellence in Trial Advocacy and the

New Jersey New York Delaware Maryland Texas www.coleschotz.com 2008 Saul A. Wittes Scholar. He was the 2009 Nathan Baker Mock Trial Competition Winner and a member of the Rutgers School of Law – Newark National Mock Trial Team. Mr. Gold was the Student Bar Association President (2008-2009), Production Editor of the Women’s Rights Law Reporter (2009-2010), and a member of the Entertainment and Sports Law Society and the Intellectual Property Law Society.

Mr. Gold has held internship positions with the New Jersey Volunteer Lawyers for the Arts, the New York Philharmonic, and the Orchestra of St. Luke’s. Mr. Gold has also acted as an independent arts consultant to a variety of arts-related entities. Prior to law school, Mr. Gold received his B.A. from Brown University and his M.A. in performing arts administration from New York University. Mr. Gold is an avid double bass player, performing in various symphonic groups throughout the metropolitan area.

New Jersey New York Delaware Maryland Texas www.coleschotz.com Ronald S. Bienstock

Senior Partner, Bienstock & Michael, LLC

Prior to forming Bienstock & Michael, LLC, nearly thirty Profile years ago, Ron was editor-in-chief and publisher of International Musician & Recording World and served as General Counsel to Admitted: New York, New Hoshino, U.S.A. (manufacturer of Ibanez guitars, electronics, Jersey, Washington, Federal and Tama drums). In 1991, Ron was voted one of the top 100 District Court of New Jersey, "Most Influential People in the Music Business" by BAM Northern Federal District Court Magazine. Today, Bienstock & Michael’s practice serves a of New York, Southern Federal broad spectrum of clients throughout the entertainment and District Court of New York, musical instrument industries, specializing in the fields of Eastern Federal District Court of intellectual property, business matters, and litigation. New York

Ron is an adjunct professor at New York University and is Education: Hobart College, B.A. a frequent guest lecturer for various graduate and undergraduate schools at NYU. Ron has also been a music California Western School of business commentator for NPR, WBAI, Barely Legal Radio, Law, J.D. Tech TV and CNN. He has been a guest lecturer, instructor and panel moderator for BMI, ASCAP, CMJ, NEMO, SXSW, NAMM, Also attended Cambridge PMA, RPMDA, the Florida Music Conference, Miami Music University (Graduate Law Conference, Alaska Bar Association, Atlantic Records’ A&R Program) University, the New York State Bar Association, the New Jersey State Bar Association, the New York City Bar Association, the Professional Memberships: Benjamin Cardozo School of Law, St. John’s School of Law, National Association of Rutgers School of Law, Seton Hall Law School, Ithaca College, Recording Arts and Sciences New Jersey City State University, William Paterson University (Voting Member), New York and many other organizations and universities. State Bar Association, American Bar Association, New Jersey As the result of Bienstock & Michael’s landmark trademark opposition win against Fender Musical Instruments Corporation, State Bar Association, Ron has been featured in numerous newspapers, magazines, Washington State Bar and online publications across the country, including the ABA Association Journal, Reuters, Arizona Republic, California Chronicle, SmartMoney, Forbes, Bergen Record, Yahoo! Finance, Tel: 201.525.0300 (NJ Office) Entrepreneur.com, Res Ipsa Magazine, Music and Sound 212.247.0848 (NY Office) Retailer, and New Jersey Savvy Living. Fax: 201.525.0133 (NJ Office) On other matters, Ron has been published in the New York 212.247.0910 (NY Office) Law Journal, on musicplayer.com, and NYSBA’s Entertainment, Arts, and Sports Law Journal. He has written a monthly column E-mail: for Guitar Magazine and GetSigned.com and guest editorials for [email protected]

Musical Merchandise Review Magazine. Ron currently writes a blog entitled “The In-Laws” for Guitar World Magazine. Various press featuring Ron can be found in NJ Biz, Music Inc. Magazine, Performer Magazine, MusicianCoaching.com, Premier Guitar Magazine, Playback Magazine, MusicRadar.com, and The Morning Call. Ron has Co-Chaired the NYSBA committee on the Recording Industry and the Internet.

Ronald S. Bienstock

Senior Partner, Bienstock & Michael, LLC

A performing and recording bassist since 1972, Ron has performed extensively with various major recording artists. He continues to perform and record with, “The Niagara’s, (Charitable Records), Blue East and QT Jazz Collective” (Transglobal Records). “The Suits,” whose debut LP on Viceroy Records secured them national tours and numerous TV appearances including “Late Night With Conan O'Brien” and CNBC. Over the last twenty-plus years “The Suits” have performed with the Spin Doctors, Blues Traveler, Billy Joel, Blue Oyster Cult, Jim Messina, Nils Lofgren, Taj Mahal, Curtis Mayfield, Gov’t Mule, Ziggy Marley, The Doobie Brothers, Rory Gallagher, Hot Tuna, Foreigner, Leslie West, Robben Ford, Eric Burden and the Animals, among many others. Ron continues to perform and record with many other projects including Ryche Chlanda and Flying Dreams.