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Old 12-27-2006, 06:17 AM   #1
BROUGHCUT
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Default So a manager *can* legally negotiate and close contracts.

I don't know how many times I've heard this (or repeated it):

Quote:
WGA TV WRITERS BOOKLET

It is important to note that managers are not legally permitted to procure employment under the Talent Agency Act. Therefore, technically, if you have a manager, you will also need an agent and/or an attorney to negotiate your deal.
Appears it's just flat wrong. It's up to the manager whether they want to negotiate. Negotiating and closing a deal they have already procured does not technically change anything with respect to the TAA (it just makes procurement that much more easy for a disgruntled writer to prove), and even if it did it wouldn't impact their ability to negotiate legally with a third party since the TAA is a Labor Code that concerns the enforceability of the client-manager contract.

So, it might be crazy to let a manager negotiate a deal without an attorney's oversight, but it doesn't appear to be illegal. (Unless, as I thought, there is a law that says only licensed agents and attorneys have the authority to negotiate and enter into binding contracts on a client's behalf. But, the California Civil Code agency section implies anyone can do this.)

In fact, if the "managers can't engotiate" mantra is ultimately based on the TAA, as the WGA snippet implies, it's just as "illegal" to use an attorney who is not instructed by a licensed agent!!

Attorney's appear to be in the same boat as managers--a law license does NOT exempt attorneys from the Talent Agency Act and since few if any attorneys are licensed agents they are no more entitled to negotiate employment contracts....

So, yeah... whoops. It may not be ethical for managers to negotiate contracts, but it doesn't appear to be illegal.

for those following the artfulwriter thread, I posted a more detailed follow-up there yesterday but I've been put on probation and it needs to be approved first....
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Old 12-27-2006, 07:31 AM   #2
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Default Re: So a manager *can* legally negotiate and close contracts.

What's your source that brings you to this conclusion?
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Old 12-27-2006, 07:58 AM   #3
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Default Re: So a manager *can* legally negotiate and close contracts.

One of the first things a good manager should ask you (once you've signed) is if you have an attorney. It means he's playing straight with you and will follow the legal channels in the proper way.
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Old 12-27-2006, 08:07 AM   #4
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Default Re: So a manager *can* legally negotiate and close contracts.

Well, I was convinced managers could not negotiate. But fell on my arse when I tried to find the source.

it's not the TAA that draws a distinction between attorneys and managers. Perhaps this law is somewhere else, but I can't find it.

As for the TAA:

Beverly Hills Bar Association seeks Attorney exemption (but hasn't got it):

Labor Commissioner on Jewel vs Cold War Mngmt:

Quote:
c. Are attorneys exempt from the Act? Can attorneys act as a shield for managers?
Gurley writes that if the Labor Commissioner were to allow a California licensed attorney to satisfy the exemption in the Labor Code, it is possible that several of Respondent’s procurement activities would be protected by a lawyer’s involvement. The express language of the exemption in the Act, provides that only a “licensed talent agency” may invoke the exemption. An attorney is not specified in section 1700.44 (d) of the Labor Code, or for that matter anywhere else within the Act that could be construed to extend the exemption to licensed California attorneys....


....Expanding the exemption to licensed attorneys invites unregulated conduct....

....the Labor Commissioner may not add words to the statute, particularly an exemption rule....There may be considerable opposition that could argue an attorney's license involves far greater protections for an artist/client that a talent agency license. However, we can not rewrite the statute. That is for the legislature....



“The manager is only relieved of liability when he/she negotiates an employment contract, not solicits one. And that negotiation must be at the request of and in conjunction with a licensed talent agent.”
Not sure an attorney ever been taken to the Labor Commissioner for commissions, but they seem as susceptible to this as managers unless the writer also has an agent directing the attorney (as most do).
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Old 12-27-2006, 03:10 PM   #5
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Default Re: So a manager *can* legally negotiate and close contracts.

I guess I'm lucky... my manager is a lawyer....
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Old 12-27-2006, 04:33 PM   #6
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Default Re: So a manager *can* legally negotiate and close contracts.

More to be heard on this, I suspect.
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Old 12-27-2006, 06:30 PM   #7
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Default Re: So a manager *can* legally negotiate and close contracts.

eh. I just set a new world record for number of erroneous apostrophes in a blog comment.

Quote:
Originally Posted by odriftwood View Post
I guess I'm lucky... my manager is a lawyer....
double-whammy!
You could get your name in Variety *and* set a precedent.
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Old 12-28-2006, 12:50 PM   #8
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Default Re: So a manager *can* legally negotiate and close contracts.

coming out to play, writerly?

It's common to hear "managers can't technically procure, but they do all the time, but they definitely can't negotiate contracts" etc. In fact, even some managers think this (thankfully... I'm not saying it's a good thing that writers can be repped exclusively by managers, just that it seems to be the reality).

The Done Deal hosted chat with Marc Hernandez from way back is a convenient example:

Quote:
Vynson: It is my understanding that managers cannot negotiate a contract. So I suppose an agent has to do that... how closely do you work with the agents? What is that process like?

Crescendo EG: Managers aren't supposed to but they do to some extent. It depends on how you define "negotiate." An attorney is always needed in a deal how can you be LEGALLY repped without one? You can't.


Well, it seems you can.

The WGA guide I quoted above clearly draws a distinction between procurment and negotiation, as if there is some other law regulating negotiation of contracts (I thought there was too).

CE's own blog:

Quote:
However, there are no strict guidelines on managers (like there are for agents), so the lines are blurred.

Many writers only have an agent. And many writers only have managers, who must use lawyers to broker the deal. Remember, managers cannot negotiate deals, but agents can.
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Old 12-28-2006, 12:51 PM   #9
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Default Re: So a manager *can* legally negotiate and close contracts.

The only reason managers "can not" negotiate is because it endangers their commissions. But if they have already procured the gig then using an attorney does not help them (Jewel case). So it seems to be a wide-spread misconception and almost entirely moot... unless someone knows of another set of laws covering negotiation of contracts for clients?

Attorneys are in the same boat as managers unless they are working with an agent, as few if any attorneys are licensed talent agents themselves. But when was the last time you heard someone say "attorneys can't negotiate contracts, you will need an agent"? That sounds ridiculous, but this same law used to single out managers in fact makes no distinction between managers and attorneys. Where is the basis for saying managers can't negotiate, but attorneys can?
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