Why Lawyers Keep Secrets About Public Harm

12 ABA PROFESSIONAL LAWYER 1, Summer 2001

11 Pages Posted: 14 Dec 2013

Date Written: April 1, 2001

Abstract

In the Spring of 1998, at Hofstra's second legal ethics conference, I proposed a rule of professional conduct that would make it unethical for a lawyer to “participate in offering or making an agreement, whether in connection with a lawsuit or otherwise, to prevent or restrict the availability to the public of information that the lawyer reasonably believes directly concerns a substantial danger to the public health or safety, or to the health or safety of any particular individual(s).” When first presented with the text of the proposed rule, the ABA Commission on Evaluation of the Rules of Professional Conduct (“Ethics 2000 Commission”) was, frankly, underwhelmed.

At that time, that reaction seemed understandable. Few lawyers were talking about secrecy of court settlements as an important legal issue. Far fewer considered it to be a significant ethical issue. Only three states had strong anti-secrecy rules then: Texas, Florida, and Washington.

So the terminology I use here is clear, by “secret settlements” I mean those agreements between plaintiff's and defense lawyers to keep information about a known harm — whether it be a defective product, toxic waste, or molesting soccer coach — from the public. The plaintiff gets a large (sealed) settlement, the defendant gets silence, while the public gets shortchanged. I'm not talking about keeping the amount of the settlement secret; there are valid reasons for doing this. Rather, my concern is those settlements in which the very information about the claimed harm, usually obtained through the process of open discovery, is “secretized” by private agreement of the parties.

This secrecy can be implemented in many ways, none very nice or, in my view, particularly honorable:

Stipulations for protective orders, rubber-stamped by judges with crowded calendars, even when the ordinary requirements of these orders, such as of trade secret protection, have not been shown.

Agreements to return unfiled discovery from plaintiff to defendant, with no one to pass the information on; these have the advantage of never coming before the court's field of vision, making it difficult for a court to step in even if it wanted to.

Most insidiously, stipulated changes of case names, depublication of published opinions, pre-adjudicated (some would say “fixed”) trials, and stipulated reversals, the last of which I'll return to in a moment.

The purpose of this paper is to discuss solutions to these issues.

Suggested Citation

Zitrin, Richard, Why Lawyers Keep Secrets About Public Harm (April 1, 2001). 12 ABA PROFESSIONAL LAWYER 1, Summer 2001, Available at SSRN: https://ssrn.com/abstract=2367367

Richard Zitrin (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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