The Case Against Secret Settlements (or What You Don't Know Can Hurt You)
2 J. Inst. for Study Legal Ethics 115 (1999)
9 Pages Posted: 14 Dec 2013
Date Written: April 1, 1999
Plaintiffs' lawyers, at least the best ones, are believers in their causes. They're convinced that part of their job is to expose cars that don't steer right or blow up under certain conditions, drugs with dangerous side effects, or clergymen and scoutmasters who molest kids. Defense lawyers, at least the best ones, are dedicated to bringing justice to their clients. They're committed to beating back frivolous claims and plaintiffs with victim complexes, but when legitimate cases come along, they try to settle them quickly and fairly -- and in a way that won't create more innocent victims.
Unfortunately, the laws in the vast majority of states combine with the ethics rules in every state to prevent lawyers on both sides from achieving these goals. Because the rules of ethics generally require putting the interests of the client ahead of those of society, lawyers are bound to settle cases in ways which serve the needs of the specific clients while potentially harming the interests of society as a whole. Unless counsel is operating in one of the very few states with strong “sunshine in litigation” laws, there is little that can be done when the defendant demands, and the plaintiff accepts, secrecy as a condition of resolving a case.
It is for this reason that I propose that American Bar Association Model Rule of Professional Conduct 3.2 be amended.
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