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The Adventures of a Celebrity Lawyer

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[Source: Modern Divorce]

https://podcasts.apple.com/us/podcast/modern-divorce-the-do-over-for-a-better-you/id1535875718?i=1000555083190

Celebrity Lawyer Christopher C. Melcher, who is ranked one of the best family law attorneys in California, explains how to navigate celebrity divorce and other complex high net worth issues in divorce.

 

Billie Tarascio:

Welcome to the Modern Divorce Podcast today. So excited for a very special guest. We are talking to a top family law attorney out of Los Angeles.  We’re going to talk about First Amendment issues, posting on social media, what it’s like to represent big personalities. So Chris, welcome to the show.

Christopher Melcher:

Well, thanks for having me, Billie. This is an interesting topic to go in. We see the social media posting of these big celeb cases and happy to kind of share my experiences and thoughts about them, generally speaking, of course.

Billie Tarascio:

Absolutely. Generally speaking. So first before we get into that, how did you find yourself to become the celebrity divorce lawyer?

Christopher Melcher:

Well, my practice area is usually representing business owners going through a divorce. That’s my sweet spot. I really don’t like custody cases because they’re custody cases and they’re just awful. And my practice has really been focused on business valuation, dealing with big financial issues. I’ve enjoyed that. But through that work, I have attracted some big celeb cases and one that I represented Frankie Valli from The Four Seasons for 10 years. And that really was a great relationship that I had with him and getting to know him. And he really helped me a lot, I think just personally and just spending so much time with him and that case went all the way to the California Supreme Court and helped define law on what’s community and separate property. So he has this a little bit of a legacy in California law as well.

 

But as a result of that case, then there were other large celebrity cases that I handled, it’s kind of not my preference actually to handle those cases, which we get into. I just like the business valuation cases and I’m sure as a fellow divorce lawyer, you could appreciate the lack of drama is something that I like in the practice that’s not easily found.

Billie Tarascio:

I know what you’re saying personally. I think really, if you are a family law attorney, you sort of have to like the drama, you have to be willing to go there because it is dramatic and emotional, but I know exactly what you mean. It really takes a lot out of divorce attorneys. And clients may not understand, it’s not that we thrive in conflict. We can go there with you, but it’s a lot. So I can understand why try to shy away from that as much as possible. So how do you find that you handle or work with these big, huge personalities?

Christopher Melcher:

Well, it’s just like any other person when it comes down to it and the key is we are all people and we all have the same problems. So some people have larger problems, more zeros at the end of them. But when it comes down to it, in a family law dispute, it’s the most personal thing that we could go through. It’s probably the most awful or one of the most awful disputes that we could have. And so this is highly personal and we’re dealing with our kids, our lives, our future, our income, everything is on the line.

And so for me, I’m not impressed by celebrity. If I was walking down the street, I wouldn’t probably even know who most of these people are. It’s just not my thing. And so I treat people just as regular people because that’s the way I see them. And certainly there are some differences in representing a celebrity that you don’t have in a regular representation. You may have a lot more handlers and levels of people and complexity involved. But ultimately I treat people as just normal humans and have to develop a relationship with them. And that’s my approach.

Billie Tarascio:

Because you’re dealing with handlers, it can affect both attorney-client privilege and confidentiality. So how do you deal with that?

Christopher Melcher:

That’s a great question. And it’s been tested in some cases in California where one lawyer was representing a client and was also dealing with the public relations manager for that client. And the other side went and said, “Hey, I want all your communications with the PR person.” And ultimately those were revealed because there’s an attorney-client privilege, but there’s no attorney-public relations privilege. So what we’re careful to do in our representation of clients is to ensure that these other third parties that we’re introducing into the conversation is necessary for the client to access representation. And that’s a key because there are times when a client just really cannot receive the advice from the attorney without having somebody else involved. Typically that’s like a business manager, or accountant, somebody to help translate this information or to access legal representation is going to have to involve somebody else.

 A lot of times you ask a celebrity or even a very, very wealthy person what they own, and they don’t really know exactly what they have. They may have a 100 LLCs, one for each individual purpose or asset that they’re holding. So honestly, a lot of times we ask them like, “What do you own? I got to fill out this financial disclosure.” And they’re like, “Well, I really don’t know.” And so we do need to access then the accountant or business manager, and then sometimes with the public relations person, they are a key player in the team because their case is evolving in legal time, which is glacial pace, really long, months or years to get through a divorce, but on social media it’s happening instantaneously.

It is nice when a client has a public relations person, so we can interact with them about messaging and being consistent with what we’re saying in legal papers, so the newspapers say the same thing.

 

Billie Tarascio:

Another question, I’m glad you brought that up because one question I have is why are some of these documents public? Why aren’t celebrity divorce lawyers asking to seal all of these cases?

Christopher Melcher:

…Our divorce proceedings are public and that’s the way I think it should be. I’m pro-court access. I know other folks are not and want to keep stuff private, but it in California, we have strong protections. And also under the First Amendment, just nationally for state court cases, these are supposed to be open proceedings. There can be some proceedings that are closed when it’s necessary to protect this information. And it overrides the public’s right to know, sometimes with children’s testimony or child custody evaluation stuff. But to me, I think it’s important that the public have access to this information and the media have access to this information because if these are celebrities or high profile people, there is a public right to know and need to know and hopefully this would inspire people not to have their laundry out there in a court proceeding. And for most celebrities that works because it’s like, ‘Hey, if you go forward with this case, this is going to be handled publicly.’ And I would think for any of us, we don’t want our stuff out there publicly. We don’t want our children who are the subject to the divorce growing up and then going through the court file and looking about how awful their parents treated each other. So I kind of like that it’s public because that would hopefully to keep people on their better behavior. I haven’t seen a lot of that, but if God forbid, I went through a divorce, I just would not want any of that stuff in court and that would really inspire me to settle.

Billie Tarascio:

Oh, I have to say I disagree with you. I think it’s awful that these… I don’t understand why lawyers don’t file to seal the cases. I think it’s awful that the public can go through the worst time in your life and put it on social media and make it part of a media and then basically throw gasoline on your litigation, which is already hard, but it is the system that we have. So does California not allow you to seal cases or people just not asking?

Christopher Melcher:

Well, there are requests that are made and sometimes granted, but many times those grants of the sealing orders are unconstitutional.

The problem is that I understand for the children’s sake or the party’s sake, that they want to keep the information private, but at least under California law, that is rarely appropriate because of our state and federal protections for court access to seal.

 

So we have seen some courts grant ceiling orders, and then those be challenged. I’ve seen them granted by the judge that’s presiding over a case. And then the supervising or presiding judge just overruling those on her own after just reviewing them.  I understand from the party’s sake that they want to keep it private, but we do have the First Amendment and so that like I say, we have seen cases where ceiling orders have been granted and we’ve also seen them challenged.

I think if I were going through a case or advising somebody, I would say, I would expect that this is most likely not going to be sealed.

Billie Tarascio:

Wow. That is good to know. I think Arizona is much more lenient with sealing cases. So it’s very interesting to look at all of the different ways that states handle these issues. Let’s talk about social media and gag orders while we’re talking about constitutionality. I have seen, and you’ve seen judges order parents not to post online. Yeah. So what have you seen in your career with that?

Christopher Melcher:

This is an area that it’s of interest to me because when we talked about this in lawyer groups, and I’ve raised the issue of there’s a First Amendment right to speak. And here we have these boilerplate court forms, standard language that’s inserted in many custody orders, even custody orders, templates that have been developed by courts in California says, ‘You shall not post on social media’ or a more typical one, ‘You shall not make any disparaging comments about the other parent.’  I understand from a child’s perspective why those orders would be made, but there has been no thought given to the right to speak. And that’s a fundamental right. And we have case law in California that have dealt with this issue, even in family law matters where the courts have found that the right to speak does outweigh the need to protect a child. And particularly in cases where we’re prohibiting speech before it occurs. So that’s a big issue under our constitution is that we may sometimes be able to punish speech after it occurs, maybe through a defamation suit, or to take the speech into consideration and making a custody order…

But to punish or prohibit speech before it occurs is almost always unconstitutional. There’s only been a few cases where that’s been permitted and that’s where national secrets are at stake. And if the speech occurred, the secret was revealed, our safety would be at risk. So in those cases, we’ve had those type of orders declared constitutional, but generally speaking, courts cannot order parents not to speak and can only maybe consider it afterwards.

 

Billie Tarascio:

And what about gag orders? Gag orders tend to be like a blanket. I’ve had a case where a judge tried to shut down a Facebook group and did ordered that a Facebook group be shut down, that somebody who’s not a party to the case shut down the Facebook group and that nobody is allowed to talk about the case.

Christopher Melcher:

Yeah. We have seen judges try to do things like that. And what I’m trying to do is bring awareness that, ‘Hey, we do have this fundamental right under our constitution, state and federal.’ And judges have enormous power. And unfortunately they don’t always know the law…

Billie Tarascio:

Yeah. You’re absolutely right. That’s a big deal.

Christopher Melcher:

It is a big deal. And I understand where it’s probably coming from, “Hey, we want to protect kids.” And that’s certainly very, very important, but the right to speak is a fundamental right. And when we have judges that are violating that, they’re taking away constitutional rights of people, maybe without even thinking about it and just saying, ‘well, I’m making the order.’ And it’s like, well, that’s just not valid.  So we do have issues of pretrial publicity, and those come up in a criminal case where we don’t want the prosecution or defense talking about a case that would end up poisoning a jury pool. So if there’s a lot of attention about the case, a lot of statements being made, that may make it difficult for the defendant to get a fair trial, because all that information is out there. Or the prosecution can’t maybe get a fair jury pool because they’ve already received all this information.

In some cases for that, the court can issue some gag orders. But generally speaking, we don’t have many states that allow for jury trials in family law, Texas is one, but California, they’re not. So there’s no real concern as much that the court would be influenced by what’s in social media. And in fact, the court cannot look at social media in an active case, it’s called an extra judicial investigation. The court doesn’t have the authority to go out on its own and investigate and develop facts. It can only consider the facts that are presented to it in court, by the attorneys or parties and admitted into evidence.

 

But we have seen some judges say like, “Hey, I looked on social media and I saw this.” And it’s like, “That’s inappropriate.” Again, another violation by the court. So I think I see more of these cases develop and beginning a lot more public attention. I’m hoping also that courts are going to be looking at their First Amendment obligations and following those a little.

Billie Tarascio:

In California your constitution says that courts and public right records must be available to the public?

Christopher Melcher:

That’s right. And the media is part of the public, so their rights are fairly identical. And so we have strong constitutional provisions in our state, constitution for open access to court records and for the right to free speech. But we also have that right under federal law under, under the First Amendment to the US constitution.

Billie Tarascio:

Are you advising that your clients participate in arbitration or collaborative law in order to keep their matters private? Or how are you shielding people from having to reveal their personal details and their personal financial details?

Christopher Melcher:

We really don’t have arbitration in family law. There may be some authority for that, but I’ve rarely seen it invoked in a family law proceeding. Most of the cases in California progress with a mediation, which obviously for the listeners is a neutral party, will help discuss the issues, doesn’t have any power to make a decision and everything that’s discussed in the mediation is confidential and can’t be used in court if they don’t settle. And that’s my preferential approach because it gives a safe place for parties to talk through their issues with the assistance of a neutral, if that doesn’t work, it’s going to go to litigation and some have used private judges, well, they call them private judges, but technically it’s a privately compensated temporary judge. So this is a person, typically a retired judge or an attorney who’s been appointed by the superior court in California to hear and decide the matter.

 

But those matters are not private. They are still public proceedings. They’re treated just like any other public proceeding… This private judge cannot consider papers that have been filed with the court and the proceedings are open.

So there are some misunderstandings, I think, by some attorneys and some, even these temporary judges to think that it’s private proceedings, they’re not. And so there’s been abuses there that are being addressed now.

So really when it comes down to it, I think like I said earlier is just that if we surrender an issue to be resolved by our courts, it is a public proceeding and open for everyone to see. And if we had two reasonable people, they would not want to go there. Nobody should want to go to court and have that done. But if we have one or both parties are not willing to settle at a mediation, then it’s going to go to court and it’s going to be public.

 

Billie Tarascio:

Do you think that the court of public opinion has an impact on the outcome of cases?

Christopher Melcher:

I think so. And we don’t see a lot of public opinion on cases unless they’re very high profile individuals, but we have seen high profile issues. So there may be somebody that’s going through a court case that no one’s ever heard of, but the issue itself is extremely important. And so we’ll see people on social media rally around that and provide support to that litigant because the issue that they’re facing is so important. Again, the judge not be reading any of this stuff, so it shouldn’t technically get into court. But I think that when we have big issues that are being played out in social media and through the traditional media, that it does affect the behavior of the parties and the lawyers on how they’re going to shape the issues. And at some point the pressure may become overwhelming that they just say, ‘Look, we’re we’re out.’ Because there could be lots and lots of people on social media rallying behind one side and putting tremendous pressure on the lawyer, on the litigant to basically stop what they’re doing.

Billie Tarascio:

Absolutely. We can certainly see in Britney Spears’s case, how the public had an enormous effect on the judge who knew that they were being watched, every moment was being reported. And that certainly had an outcome in her case, it seems like there’s a good guy and a bad guy, at least from our perspective, that’s what it looks like. So it looks like it’s really easy, but if you look at people like Brad Pitt and Angelina Jolie, that gets a little harder where in the media, they’ve got both camps, they’ve got team Brad, they’ve got team Angelina. And how do you think that has affected the case?

Christopher Melcher:

Well, that case has gone on for a long time. I think it was filed in 2017 and I’ve gone back and forth on that. I’ve done a lot of commentary on that case. I’ve looked at all papers that have been filed and it is just so unnecessary-I think for a case to go on that long and there could be criticism on both sides. And certainly there has been people rallying around each side of it, but I think I could make a case against either one of them. Especially when they’re fighting about the custody, which is like, what really is at stake here to make this worthwhile, to make that fight worthwhile because it is being handled publicly. Their children are seeing it or will see all of this information out there, their parents fighting and that’s very toxic.

And so if they’re fighting over a difference of 10% of the time, how could that 10% be worth it to either side to justify the damage that’s done through having that fight? And like I say, I could have criticism on both sides…

Why do you want the 10%, so much that you’re willing to proceed with this litigation? But I can also make the same argument against Brad. “Why is this 10% so important to you that you’re going forth and fighting her over it?” Because who’s really using the 10%? We have two parents in that case that are working a lot, I have to imagine they have childcare. And so is it a fight over which nanny’s going to use the 10%? And so what we see in a lot of these cases, and I know you know this, is that the object that they’re fighting over in a family law dispute is probably not what they’re really fighting over.

There’s something more that’s sourcing this thing, power, control, resentment, revenge, just inability to move forward. And that’s really what’s driving the dispute. And we’re only seeing a symptom of that in what they’re fighting for, whether it’s the house or the extra day with the kid.

Billie Tarascio:

Yeah, absolutely. Have you ever found yourself in a situation where you have received threats or you felt unsafe because of your representation?

Christopher Melcher:

No. I’m trying to stay out of this. This is not my dispute. And I look at myself as, I’m almost like a janitor is how I view myself. I’m a highly compensated janitor that takes care of or cleans up messes that my clients have gotten themselves into. So, I’m not part of the dispute. I don’t want to be part of the dispute. I don’t want my name attached with the dispute. I’m just there to serve the client. I do comment publicly on other people’s cases all the time. Like I just did Brand and Angelina because I’m not involved in that case, but my own cases I don’t talk about. It’s not about me, it’s about the client. And because I’ve taken that approach, I’ve so far been able to stay out of the fray.

Billie Tarascio:

That’s fantastic. The fact that you’ve been able to avoid that is very, very impressive. 

Christopher Melcher:

Yeah, It’s kind of what we are, as lawyers, I know we are professionals, but ultimately we’re helping people get through a difficult time and we are in and out of their lives. And I think also with the other side of a case, I use empathy.

I try to really understand the case from the other side’s perspective. Not necessarily because I care directly about them, but it’s because I want to know what they’re facing and why they’re fighting over this or what they need to resolve that. And I use that information then to help my client come up with a resolution that would be attractive to both sides. So because I’m not just going and attacking viciously the other side, I have been able to avoid a lot of hate from, or really any hate from the other side.

 

Billie Tarascio:

Well that’s magical, you’ve got magical powers, which is good. Are you a parent?

Christopher Melcher:

Yeah, I have a 12 year old.

Billie Tarascio:

A 12 year old. Okay. So you may or may not have had this happen yet. So I’ve got four kids and my two oldest kids are 17 and 15 and I haven’t often thought of myself as a janitor, but certainly we’re professional problem solvers. People bring us their big, fat, messy problems and we try to help them figure out how to get out of their problems. And I have found that happens with my teens, where I might see them in a big mess and my instincts are to immediately be like let’s clean up the mess.  As opposed to be like, ‘You’re grounded. Give me your phone.’ And I’m just wondering if any other lawyers have that experience as a parent, I don’t know. Has had that come up yet?

Christopher Melcher:

No, fortunately not yet. I’m sure it’s coming up soon. And now that you’re mentioning it, I’m hoping I will use my kind of professional demeanor when I deal with that. Because the way I came up with the janitor analog in my mind was it was really for my own protection. Because like you say, these are very personal disputes and we’ve seen a lot of family lawyer colleagues get into them as if we were their own dispute or own relative or somebody going through this and they lose objectivity.

Billie Tarascio:

So you were saying how you came up with the janitor analogy.

Christopher Melcher:

So I started thinking of myself as a janitor, because the clients would have this big mess, I’d be cleaning it up and then they would create another mess. And it was frustrating when I first started doing family law- I moved in from criminal. So with criminal, it was one mess and the whole was about that mess. There was really nothing that happened afterwards, because the whole case is based on the one incident that’s being charged. But when I went into family law, there would be an incident and we’d be working on it. And then all of a sudden there would be like every day, some new incident that would happen. And it was very frustrating to me just saying, “Look, I’m spending all my time and energy trying to help you on this issue and it was frustrating.”

 So I kind of redefined how I think about this and it’s like, okay, I’m paid to clean up that mess. And just like, if you hired me to clean your garage and if the next day you mess it up and hired me to clean it up again, I would say, “Okay.”

And I saw this through actually seeing a janitor cleaning up in a restaurant and I thought like, “Wow, if they really took to heart, how I’m taking to heart my family law cases, at that time, they would have a horrible job. They would be throwing stuff. And I can’t believe somebody spilled something on the floor here and I got to mop it up.” And it’s like, no, he’s just there mopping it up. That’s his job. And so that’s how I change my mindset. Of course I don’t want my clients to create messes and I want them to move forward successfully with their lives, but it doesn’t always happen in a family law dispute.

Again, I’m trying not to internalize the dispute and saying, ‘Hey, okay, this happened, let’s address it. What can we learn from it?’ But I’m not going to lose my composure over it and start yelling at them or getting upset internally.

 

Billie Tarascio:

I love it. That’s really, really valuable. It’s something that I’m going to share with all of my attorneys. Chris, thank you so much for being here today. If you’ve enjoyed this episode, make sure to like it, give a review, let us know what your questions are and Christopher, how do people reach you if they want to hire you?

Christopher Melcher:

Well, you can just Google my name and you’ll come up with all my contact information. Always happy to answer questions and or if you need referrals for the right fit in California, happy to be a resource for folks if they need it.