Tennessee Formal Ethics Opinion Precludes Settlements That Require Attorney to Return His or Her Work Product

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The Tennessee Board of Professional Responsibility issued a formal Ethics Opinion concluding that a settlement provisions requiring attorneys to turn over documents protected by attorney work product may be prohibited by Rule 5.6(b). Specifically, a lawyer may not propose or agree to a settlement agreement that requires a lawyer to turn over any work product materials as part of the settlement if that action will restrict his or her representation of other clients.

“ABA Formal Opinion 93-371 articulates the three policy considerations underlying this rule. First, there is a risk that the public’s access to the best attorney for a particular case will be curtailed. Second, such a restraint could be motivated by an effort to “buy off” counsel rather than to resolve the dispute. Third, a restriction on an attorney’s right to practice may place him or her in a position where the interests of the current client are in conflict with those of potential future clients… view publisher site.

“If an attorney is required to disclose his/her entire work product, it may inhibit representation of subsequent clients. If this were to occur, defense counsel would accomplish indirectly what they cannot accomplish by directly precluding the attorney from representing other plaintiffs with similar claims.12 Further, it appears to create a conflict between the lawyer who has an interest in preserving work product to aid in the representation of future clients and the lawyer’s current client who has an interest in obtaining the settlement funds.”

 

Tennessee Formal Ethics Opinion No.2016-161.

 

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