When the Price of Settlement is Ethically Prohibitive: Non-Disparagement Clauses that Apply to Lawyers

Abstract

At last! You have lived with this case for many years, and you are now on the verge of finalizing the terms of a settlement agreement. All the contentious issues have finally been resolved, so you thought, when the defendant leans over the table and says, "Just one more thing. We want you and your client to sign a non-disparagement clause as part of the settlement." Yes, non-disparagement clauses have been frequently used as a controversial reputational shield in high-conflict divorces, sensitive employee terminations and contentious consumer actions. However, barely discussed is whether lawyers are ethically able to suggest or be bound by disparagement clauses. This column will address the ethical considerations that lawyers should consider before suggesting or agreeing to sign a non-disparagement clause.