Ohio Board of Professional Conduct Places Restrictions on Settlements Which Include Secrecy Agreements

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The Ohio Board of Professional Conduct recently opined that: “A settlement agreement that prohibits a lawyer’s disclosure of information contained in a court record is an impermissible restriction on the lawyer’s right to practice. A lawyer may not participate in either the offer or acceptance of a settlement agreement that includes a prohibition on a lawyer’s disclosure of information contained in a court record. A lawyer is not required to abide by a client’s decision to settle a matter if the settlement is conditioned on a restriction to practice and must withdraw from the representation.”

More specifically:

“The apparent intent of a settlement agreement provision prohibiting communication of information contained in a court record is to limit the plaintiff’s lawyer’s ability to attract new clients based on the lawyer’s prior experience against a particular defendant. This type of settlement provision also gives the lawyer less discretion in pursuing claims on behalf of clients than a lawyer who is not subject to a similar agreement. Colorado Bar Ethics Opinion No. 92 (1993). More importantly, the prohibition contained in the rule serves to protect the public’s unfettered ability to choose lawyers who have the requisite background and experience to assist in pursuing their claims. Rule of Professional Conduct 5.6(b). It also prevents settlement agreements from being used to “buy off” plaintiff’s counsel through an offer of a higher settlement amount in exchange for the lawyer foregoing future litigation against the same defendant. Lastly, the rule prevents the creation of conflicts between the interests of current clients and those of potential future clients. ABA Opinion No. 93-171.

“For the foregoing reasons, the Board concludes that Rule 5.6(b) prohibits a lawyer from participating in the offer or acceptance of a settlement agreement that includes a prohibition on the disclosure by a lawyer of information contained in a court record. A settlement agreement under which a lawyer is prohibited from disclosing information contained in a court record via the media or otherwise permissible advertising constitutes an impermissible restriction on the lawyer’s right to practice.”

 

Ohio Board of Professional Conduct Opinion No. 2018-3 (June 8, 2018).

 

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