Civil Rights & Constitutional Law
Chandra Law obtains $2,000,750 jury verdict for former police chief LaMont Lockhart against the...
December 15, 2008
Thursday, June 16, 2016
Confidentiality provisions restricting the terms and amount of a settlement are standard in civil cases among private parties. With increasing frequency, however, defendants seek to negotiate broader restrictions that prohibit not only plaintiffs—but also their counsel—from disclosing public facts about a matter as part of a non-disparagement clause covering the resolution.
As counsel for plaintiffs in civil-rights and employment-discrimination cases, we hold accountable people who have engaged in bad behavior. When resolving cases for clients by settlement, we are sometimes asked to agree that we will not discuss the litigation's subject matter after the settlement. Such clauses attempt to bind us to broad prohibitions including, for example, not maligning, denigrating, or otherwise speaking ill of the defendant company or its personnel or doing anything that might disparage a defendant's name or reputation. Sometimes, opponents demand we remove social-media posts or posts to our law firm's blog.
But what about when the truth hurts?
Is it ethical for defendants or their lawyers to try to prevent plaintiffs' counsel from communicating truthful information about our work on particular matters? Can we as lawyers agree to restrict our ability to communicate about our practice in this way?
No and no.
Here's why: such restrictions make it harder for plaintiffs to locate competent counsel to handle their matters and are thus unethical and prohibited by the ethics rules. Under Ohio Professional Conduct Rule 5.6(b), which governs Ohio lawyers' conduct, an attorney may neither request nor agree to restrictions on the right to practice law as part of settling a case:
A lawyer shall not participate in offering or making ... an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a claim or controversy."
This rule is based on Rule 5.6(b) of the American Bar Association's Model Rules of Professional Conduct. Though the rule's plain language makes clear that a lawyer could not, for example, promise never to sue a defendant again as part of settling a matter, what about indirect restrictions like non-disparagement clauses?
Every jurisdiction to consider this issue has concluded that lawyers cannot agree to indirect restrictions on their right to practice including by limiting their ability to communicate publicly available information about their practice and experience.
For example, the Ethics Committee of the San Francisco Bar Association considered a case where a plaintiff's attorney represented a member of the LGBT community in an employment-discrimination case. As part of the settlement, the employer demanded that the plaintiff's attorneys agree via a non-disparagement clause not to mention in communications or advertising materials that they worked on LGBT cases against the employer or LGBT rights as an area of expertise. The committee found that under the California Rule of Professional Conduct 1-500, it was unethical to demand or agree to such restrictions on marketing an attorney's experience as part of resolving a case:
Defense counsel may not propose, and plaintiff's attorneys may not accept, a settlement provision [that] obligates the attorneys to take actions that will either directly or indirectly restrict their right to practice law. Prohibiting an attorney from disclosing public information regarding the attorney's handling of a particular type of case against the settling defendant is an impermissible restriction on the attorney's right to practice and deprives legal consumers of information important to their evaluation of the competence and qualifications of potential counsel. Prohibiting an attorney from disclosing that he or she has experience in a particular area of the law is also an impermissible restriction on the attorney's right to practice regardless of whether that information is otherwise public.1
Indeed, all jurisdictions to have considered the issue agree that non-disparagement clauses that seek to prevent lawyers from discussing the work they have done on cases are unethical:
Thus, a settling defendant cannot ask lawyers to keep secret any public information about a matter—such as information contained in publicly filed pleadings—as part of resolving a case. Such broad non-disparagement clauses are unethical to accept—or even to propose. (See, e.g., Ohio Prof.Cond.R. 8.4(a) ("It is professional misconduct for a lawyer to do any of the following: (a) violate or attempt to violate the Ohio Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another...")
When lawyers and opposing parties demand that we agree to such arrangements, our answer is no. As a result, we are able to share our experience with the public, potential clients, and clients—and practice law without unethical restriction.
1. Op. 2012-1 of the Ethics Committee of the Bar Association of San Francisco.
2. Op. No. 335, the Legal Ethics Committee of the District of Columbia Bar.
3. State Bar of Wisconsin, InsideTrack, Ethical Dilemmas: Does a Non-Disparagement Clause Violate the Rules of Professional Conduct? 1/21/15.
4. Tex. Comm. on Professional Ethics Op. 505, V. 58 Tex. B.J. 719 (1995).
5. State Bar Association of North Dakota, Ethics Committee, Opinion No. 1997-05 (6/30/97).
6. South Carolina Ethics Op. 10-04 (2010).
7. Indiana Ethics Op. No. 2014-1.
8. N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Formal Op. 730 (2000).
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