By Nell Gluckman, From The Am Law Daily

The HBO documentary series “The Jinx: The Life and Deaths of Robert Durst” and the Academy Award winning documentary “Citizenfour” both profile controversial figures who have landed, for very different reasons, in tenuous legal situations, drawing media scrutiny and sparking ethics debates. But they have one other thing in common: Victor Kovner.

The Davis Wright Tremaine partner, who sibling publication New York Law Journal named as a Lifetime Achiever in 2014, has built a reputation as a formidable First Amendment attorney, vetting some of the most high profile and controversial documentaries before they reach their distributors.

In the case of “The Jinx”—a six-part series on HBO about Robert Durst, a real estate heir allegedly tied to three deaths over a 30-year period—Kovner reconnected with longstanding clients, the filmmakers Andrew Jarecki and Marc Smerling, who he had worked with on “Capturing the Friedmans” (2003), “Catfish” (2010) and “All Good Things” (2010).

“He’s more than a lawyer—he’s an adviser in many ways,” Smerling says.

Long after the filming of “The Jinx” ended, the story continues to develop, as do the legal issues attached to it. On Saturday—one day before the final episode aired, during which Durst unwittingly muttered into a live microphone that he “killed them all, of course” in apparent reference to the three deaths—the show’s protagonist was arrested and charged with murdering his friend Susan Berman, who was shot and killed in 2000.

For that reason, Smerling declined talk about the series, but he did speak generally of Kovner’s work on his projects.

“A lot people’s lives are affected by these projects,” Smerling says. “[Kovner] is there in the beginning. When we’re forming a plan on how to treat people, he’s part of that plan.”

If law enforcement gets involved, Kovner guides them through that as well. “If there’s something that’s out of the ordinary, we talk to him about it,” Smerling says. “He keeps us between the lines.”

The filmmakers have had to work with the police in connection with “The Jinx,” according to a story in The New York Times that raises the ethical question of whether journalists and documentarians have a responsibility to hand over potentially incriminating material they collect to authorities. According to the article, Smerling and Jarecki did give some of their material to law enforcement, though it’s not clear how much and when.

“I have advised them with respect to many of their communications with law enforcement,” says Kovner, although he did not elaborate.

Smerling and Jarecki don’t just consult Kovner when legal issues arise—they consult him on ethical issues as well, according to Smerling, who says Kovner has “a great moral compass.” They go over their plan with him before they conduct a potentially controversial or sensitive interview and show him all their work prior to its release. Smerling says Kovner always has input.

“Sometimes he has filmmaker opinions,” Smerling says with a laugh.

Kovner’s work on documentary film grew out of career advising print media. He counseled the Village Voice in the 1960s and 1970s on numerous libel claims, then went on to advise New York Magazine, Esquire and Penthouse as well as several book publishers.

“Capturing the Friedmans,” an HBO documentary about an investigation in the 1980s of Arnold and Jesse Friedman for child molestation, was Kovner’s first foray into documentary film. He also worked on the 2008 documentary “Food, Inc.,” the 2011 documentary “Last Call at the Oasis” and the 2013 docudrama “All Good Things,” the predecessor to “The Jinx.”

“The rules are not so different,” Kovner says of the crossover from print to film. “The medium is different but the basic law is essentially the same.”

His most recent film, Laura Poitras’ “Citizenfour,” won the Academy Award this year for best documentary. The film chronicles former National Security Agency contractor Edward Snowden’s leak of a trove of documents to Poitras and Glenn Greenwald, then a columnist at The Guardian. The documents revealed that the government agency was collecting massive amounts of data on American citizens and spying on foreign governments. Federal prosecutors have since charged Snowden with espionage.

For Citizenfour, Kovner says he was brought in late in the filmmaking process to vet the film before it was distributed.

“Like many of the lawyers we worked with on this project, he understood the larger stakes and scope that we were dealing with,” says Brenda Coughlin, distribution producer for Citizenfour. She also declined to talk about the legal issues specific to the film.

Kovner was one of a team of lawyers who worked on Citizenfour. Andreas Pense, based in Hamburg, Germany, served as legal counsel to Poitras’ production company, Praxis Films. Frank Dehn, of SmithDehn, served as the film’s media compliance lawyer, while Ben Wizner of the American Civil Liberties Union and Wolfgang Kalek of the European Center for Constitutional and Human Rights appeared in the film.

“Laura Poitras understands full well her First Amendment rights, and appreciates that as a journalist, and we wanted all of our participants to appreciate that as well,” Coughlin says.

For example, the Ford Foundation helped fund the film and the filmmakers wanted to assure them that they were taking precautions to protect themselves from legal action.

“It was really wonderful to say we’re working with Victor Kovner,” Coughlin says, explaining that the Ford Foundation knew of him. “Once Victor’s name came up, there was a sigh of relief.”

So far, only one case has been brought against the Citizenfour film: a complaint filed “on behalf of the American people” by a retired naval officer in Kansas naming Snowden and each of the production companies involved as defendants.

Unusual security precautions were taken during the production of the film because the documentarians did not want any of their material to become inadvertently available to the public. As a result, Kovner was among only a handful of people to see Citizenfour before it was released, a group that did not even include distributors, funders or other partners, as would typically be the case, according to Coughlin.

For Kovner to do his work, someone came to the Davis Wright offices in New York with the film on an encrypted drive. He watched it in a secured area, with no cell phones present, before the person associated with the film took the drive away. This process had to be repeated when some changes were made.

As Kovner describes it, his role when working with a filmmaker is to “let them make the point they wish to make in a manner in which risk is limited.”

He adds that it’s satisfying to work with people who are “committed to integrity and justice.”

IMAGE: Victor Kovner NYLJ/Rick Kopstein

For more on this story go to: http://www.americanlawyer.com/id=1202720874340/Filmmakers-Turn-to-Davis-Wright-Partner-on-Controversial-Documentaries#ixzz3UjooInkb