When Secret Settlements are Unethical
10 Pages Posted: 29 Jun 2010 Last revised: 23 May 2015
Date Written: May 22, 2015
This article explains why secrecy provisions in settlements that go beyond mandating confidentiality of the amount and terms of the settlement, and require the parties and their attorneys to refrain from disclosing the facts underlying the dispute, often violate two provisions of the Model Rules of Professional Conduct. Under Model Rule 3.4(f), it is impermissible for an attorney to ask that a person refrain from voluntarily disclosing relevant information to other parties. This rule is violated when a defense lawyer demands confidentiality terms that prohibit the plaintiff from sharing relevant facts with litigants or administrative agencies investigating or pursuing claims against the same defendant. Rule 5.6(b), which bars lawyer participation in settlement agreements that restrict a lawyer’s right to practice, has been interpreted to prohibit confidentiality agreements that interfere with a lawyer’s ability to inform prospective clients about the lawyer’s past experience and expertise. Settlement agreements that sweep so broadly that a participating lawyer cannot even disseminate public record information about the issues and allegations involved in a settled case run afoul of this rule.
In addition to explaining why these rules are properly interpreted to forbid attorney involvement in settlements that require blanket secrecy concerning the underlying facts, the article explores the obligations of plaintiffs’ lawyers faced with unethical settlement demands, and strategies for resisting them.
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