[The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]
In the over-the-top climactic scene of The Devil’s Advocate (1993), law firm leader John Milton (Al Pacino), revealing himself to be the Devil, explains to junior lawyer Kevin Lomax (Keanu Reeves), “[T]he law, my boy, puts us into everything: it’s the ultimate backstage pass!”
One attorney for whom that became literally true is Henry Bushkin, whose deeply disillusioning memoir, Johnny Carson (2013), recounts his service(s) from 1970 to 1988 to the legendary host (1962-1992) of NBC’s The Tonight Show.
Law (and pre-law) students, and lawyers, might well find professional wisdom and warnings amidst the book’s numerous anecdotes of Carson’s charm, charity, chintziness, cheating (at tennis, and in marriage) and churlishness.
● The lawyer as factotum.
In the book’s second paragraph, Bushkin recalls that:
“I was [Carson’s] attorney, although that term hardly expresses all I did; more properly, I was his lawyer, counselor, partner, employee, business advisor, earpiece, mouthpiece, enforcer, running buddy, tennis pal, drinking and dining companion, and foil. A good portion of my job entailed cleaning up his messes—business messes, personal messes, family messes.”
(His first assignment “clearly bordered on ethical misconduct or possibly criminal behavior. . . . But I wanted to become his lawyer, not his conscience. And maybe the whole thing wasn’t so illegal.”)
Later, he characterizes himself as Carson’s “attorney, agent, personal manager, business manager, public relations agent, messenger, enforcer, tennis partner, and drinking and dining companion. If Johnny needed something done, I was the one who did it.” (However, he was told, “[T]he one thing I don’t need is any advice on how to run my show. Stay away from that.”)
In Bushkin’s job interview, Carson asked him “a question that surprised me completely. ‘You play tennis, right? . . . If you work for me, I’ll expect you to join me occasionally.” (“[I]n fact, I frequently threw games” to him.)
● Loyalty above all
Bushkin recalls that “I met Johnny at just about the moment he had begun to suspect that the icons who were representing him hadn’t really done a very good job protecting his welfare.”
He came to concur that Carson “was badly underserved,” and promptly extricated his client from a number of compromising commitments.
After he explained the disadvantages of one such arrangement, a chagrined Carson instructed him, “This should be a lesson to you, Henry. Don’t ever let me sign something like that again.” (Bushkin’s account details the increasingly powerful negotiating posture that Carson developed against NBC.)
In 1972, when The Tonight Show moved its studio taping from New York to Los Angeles, Carson proposed that Bushkin move to California, and even offered to assist him in getting other clients. “’I don’t expect to be somebody’s only client,’ he said, ‘but I need to know that I’m number one.’”
● Unheeded
In 1972, against the strong recommendation of his lawyer—and, soon afterwards, also of his accountant—Carson flatly refused to execute a prenuptial agreement with the woman who would become his third wife. (“’This is no way to start a marriage,’ he said. ‘Tear the g—–n thing up.’”)
To protect himself, Bushkin “wrote [Carson] a letter that required his acknowledgment, which stated that against all advice to the contrary, he was going forward with the marriage without the prenuptial. He countersigned the letter.”
● Expertise, a hard nose, and a lesson learned
A decade later, when Carson’s third marriage broke up, Bushkin (who had handled Carson’s second divorce) believed that “now the stakes were far too high and the situation far too complicated for a man of Johnny’s wealth and stature to hire anyone other than an expert.”
However, Carson and Bushkin soon replaced their “very gentlemanly” and “low-key” initial choice, who was “simply too nice to be in this fight,” with a lawyer “who could be counted on to be as hard-nosed as he had to be” in dealing with the “bully” representing Carson’s wife.
Ultimately, Carson, concluding that “I’ve got to clear my head,” settled for “tens of millions more” dollars than he would have paid under a prenuptial agreement—and, when his next serious relationship began, told Bushkin: “Look, I’m not going through this b——t again. If I ever get married again, put a .38 to my head, and if we don’t have a prenup, pull the damn trigger.”
● Professional distance from the client and (maybe) his lifestyle
In 1978, Bushkin was astonished when Carson identified him as “probably my best friend” in a The New Yorker profile.
“We were certainly friends, but. . . never did I think of him as my best friend. I was always working when I was around Johnny, thinking of what he needed.”
When Carson performed two shows a night in Las Vegas, Bushkin was expected to “stay in the dressing room with Johnny during [the interval between shows] and keep him occupied. . . . I was like all those guys on Entourage, except there was only me.”
Also in Las Vegas, “Johnny encouraged me to pick a play companion out of the chorus line. And it was clear he wasn’t going to be happy until I did. He wanted a partner in sin, and soon enough, I acquiesced.”
Thus, in a classic example of litotes (and with a disarmingly semi-passive voice), Bushkin states that “Many of the heady, heedless pleasures that come to kings as a matter of course also fell in my lap. I had enjoyed many adventures in Vegas and on the road that did nothing to reinforce marital bonds.”
Such diversions only aggravated the strain that his constant attention to, and attendance on, Carson caused in Bushkin’s marriage. While the attorney-client relationship had “enriched and enlivened my life beyond all imagination, . . . it had also been one of the factors that led to my separation and divorce.”
In 1980, as he and Carson were preparing to form Carson Productions, Bushkin’s “last hopes for [my] marriage disappeared,” preventing his wife from claiming (under California’s community property law) half of his interest in the new company. (Carson, then advised to similarly assess the status of his (third) marriage, simply responded, “I can’t stand the thought of a divorce.”)
● Guilt (or gilt) by association
In the late 1970s, Carson withdrew from a group bid to acquire Las Vegas’ Aladdin Hotel, after being warned by a law enforcement source that one of the other people involved was connected to organized crime.
But if Carson (who “was scrupulous to never share a political view with his viewers—‘Why lose fifty percent of my audience?’”) was properly worried about staining his own reputation, others would seek to associate themselves with him.
A few years later, The Coca-Cola Company, which had proposed that it acquire Carson Productions, invited Carson to consider joining their board of directors. He declined, telling Bushkin: “[Y]ou know me better than that. . . . There’s nothing I would hate more. Make sure they know I’m flattered, but make some excuse.”
(During his third divorce, as he was asked detailed questions about the finances of his companies, Carson reconsidered: “Maybe you were right. We should have sold the g—–n thing to Coke when we had the chance.”)
In Carson’s other business activities, “The possibility of seeing or meeting Carson was often key to enlisting other investors or making the venture work.”
And, according to Bushkin, “the always candid” comedian Joan Rivers (whom Carson would shut out completely after she surprised him in 1986 by launching a competing talk show on the Fox network) told Carson’s third wife, as that marriage dissolved, “My relationship with Johnny is far too important to risk it on a [continued] friendship with his ex.”
● Misplaced confidence(s)
According to Bushkin, his relationship with Carson ended abruptly (and with an “awkward handshake” agreement on a severance plan, since “Johnny and I never had a written contract”) shortly after Carson discovered that Bushkin and master comedy-writer Ed. Weinberger (featured in the chapter, “Days of Weinberger and Neuroses”) were quietly considering an offer by the Tribune Company to buy Carson Productions and to retain them as participants.
Noting that he’d been betrayed to Carson by a business associate in whom he’d confided, Bushkin declares, “[I]f twenty years in law practice had taught me anything, it’s that nobody keeps a secret.”
Which is not necessarily correct: if someone in his professional circle had successfully held some information closely, Bushkin might never have learned of either the secrecy or the secret itself.
● Considerations of confidentiality and privilege
Almost immediately after entering professional orbit around a client both saturnine and mercurial, Bushkin was privy to an inebriated, maudlin Carson’s self- and family criticism, some of which Johnny Carson quotes.
Several hours later, after a sobered-up client asked him, “What the hell did I say?” and warned, “You must never, ever repeat a word from last night,” Bushkin reassured Carson (who died at age seventy-nine, in 2005) that “everything that is said between us is confidential and covered by attorney-client privilege. I would lose my license if during your lifetime I repeated it to a soul.”
Bushkin’s book might have been of even more relevance to lawyers had it expanded and expounded that summary of secrecy’s scope and span.
Relevant sections of the Model Rules of Professional Conduct (adopted by the American Bar Association in 1983, around thirteen years after the representation here began) include Model Rule 1.6, its Comment 20, and Model Rule 1.9(c)(1) and (c)(2).
California Supreme Court precedent involving the estate of Bing Crosby has construed the state’s Evidence Code to the effect that “the attorney-client privilege of a natural person transfers to the personal representative [of the estate] after the client’s death, and the privilege thereafter terminates when there is no personal representative to claim it” (that is, once the estate is “finally distributed” and [the] personal representative [is] discharged”). HLC Properties, Ltd. v Superior Court, 35 Cal.4th 54, 65-66, 24 Cal. Rptr. 3d 199, 207, 105 P.3d 560, 567(Cal. 2005).
It is worth noting, though, that the United States Supreme Court, in holding (in the context of a criminal investigation) that the attorney-client privilege survives the client’s death, recognized that:
“Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. . . . Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime. . .
“Many attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed in order to assure sound legal advice. The same is true of owners of small businesses who may regularly consult their attorneys about a variety of problems arising in the course of the business. These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged.”
Swidler & Berlin v. U.S., 524 U.S. 399, 407-408, 118 S.Ct. 2081, 2086 (1998).
