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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3941" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2018/06/Reining-in-horse-239x300.jpg" alt="" width="239" height="300">After hard-fought proceedings, you&rsquo;ve finally settled a contentious case on behalf of your client.&nbsp; The plaintiff&rsquo;s lawyer has brought suit against&nbsp;your client before, and likely will again:&nbsp;&nbsp;the lawyer advertises and uses social media aggressively to locate claimants who have the same kind of issue with your client.
Your client asks, &ldquo;Can&rsquo;t we include terms in the settlement agreement that would rein in this lawyer?&nbsp; Maybe raise the settlement amount enough to get her to agree to stop&nbsp;taking these cases?&nbsp; Or at least,&nbsp;get some language that would&nbsp;stop the blog posts and&nbsp;the TV ads fishing for clients to sue us?&rdquo;
The answers:&nbsp; &ldquo;No &mdash; and no.&rdquo;&nbsp; A <a href="https://www.ohioadvop.org/wp-content/uploads/2018/06/Adv.Op_.2018-03.pdf">new ethics opinion from Ohio&rsquo;s Board of Professional Conduct</a> underscores the point.
Restrictions on right to practice
<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_6_restrictions_on_rights_to_practice.html">Model Rule 5.6(b)</a>, adopted with only minor variations in&nbsp;almost every jurisdiction,* bars you from &ldquo;participating in making or offering&rdquo; a settlement agreement that includes a restriction on a lawyer&rsquo;s right to practice.&nbsp; The new Ohio ethics opinion expressly extends that prohibition to&nbsp;settlement agreements conditioned on restricting a lawyer&rsquo;s communication of information &ldquo;contained in a court record.&rdquo;
A settlement agreement can certainly bar both sides from disclosing non-public information (such as settlement terms, conditions and amount), and those are common clauses.&nbsp; But&nbsp;preventing counsel from making a public announcement, or communicating to the media, or advertising about the case using&nbsp;information contained&nbsp;in case documents, violates Rule 5.6, said the Ohio Board.
The Board reasoned that an agreement prohibiting a lawyer from using public information interferes with the ability to market legal services in a way otherwise consistent with the Rules of Professional Conduct.&nbsp; It also&nbsp;interferes with &ldquo;the public&rsquo;s unfettered ability to choose lawyers who have the requisite background and experience to assist in pursuing their claims.&rdquo;&nbsp; Rule 5.6(b) &ldquo;prevents settlement agreements from being used to &lsquo;buy off&rsquo; plaintiff&rsquo;s counsel ... in exchange for the lawyer foregoing future litigation against the same defendant.&rdquo;&nbsp; The Board also mentioned the conflict that such agreements create &ldquo;between the interests of current clients and those of potential future clients.&rdquo;
Expansive readings
The <a href="https://www.americanbar.org/content/dam/aba/events/professional_responsibility/2015/May/Conference/Materials/aba_op_00_417.authcheckdam.pdf">ABA Ethics Committee,&nbsp;</a>as well as&nbsp;ethics committees in <a href="https://nysba.org/ethics-opinion-1006/" target="_blank" rel="noopener">New York</a> and the <a href="https://filehost.thompsonhine.com/uploads/DC-Legal-Ethics-Opinion_335_2121.pdf" target="_blank" rel="noopener noreferrer">District of Columbia</a>,&nbsp;have reached similar expansive conclusions about the reach of Rule 5.6(b).&nbsp; The ABA Committee particularly disapproved in 2000 of settlement agreements conditioned on not &ldquo;using&rdquo; information in later representations against the same opposing party or related parties.&nbsp; And the D.C. ethics opinion notes that the&nbsp;fact of settlement is usually reflected in public documents, thus making it a rule violation&nbsp;to condition the agreement on non-disclosure of&nbsp;that&nbsp;fact.
Underlying these opinions, as the D.C. ethics committee said, &ldquo;is the intent to preserve the public&rsquo;s access to&nbsp; lawyers who, because of their background and experience, might be the best available talent to represent future litigants in similar cases, perhaps against the same opponent.&rdquo;
Not a limit on duty of confidentiality
The Ohio opinion, and others, should not be read to alter your duty of confidentiality to your client.&nbsp; Under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html">Rule 1.6</a>, absent client consent and other narrow exceptions, you already have a duty to keep confidential all information relating to the representation &mdash; and&nbsp;that would include otherwise public information, as <a href="https://www.thelawforlawyerstoday.com/?s=public">we&rsquo;ve noted before</a>.&nbsp; In contrast, the opinions centering on Rule 5.6(b) are about your ability to offer or accept&nbsp;settlement agreements restricting the right to practice.
Further, as Hofstra <a href="https://law.hofstra.edu/directory/faculty/emeritus/simon/">Professor Emeritus Roy Simon</a> explains in his treatise on New York ethics law, you can get into ethics trouble even if a court might otherwise enforce the settlement agreement:&nbsp; &ldquo;A lawyer who makes or agrees to [a settlement&nbsp;in which a lawyer promises not to represent a client in later disputes with your client] risks professional discipline even if a court later holds that the agreement is enforceable.&rdquo;
Client ABC&rsquo;s &mdash; and the nuclear option
The restriction against participating in a settlement agreement&nbsp;aimed at reining in opposing counsel&nbsp;is a part of the ethical&nbsp;landscape that clients may not understand &mdash; especially when you need to turn down a request to pursue something that would be to the client&rsquo;s advantage.
This&nbsp;is an issue that certainly merits explanation under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications.html">Rule 1.4</a>&nbsp;in order to &ldquo;permit the client to make informed decisions regarding the representation.&rdquo;&nbsp; And you also must &ldquo;consult with the client about any relevant limitation on the lawyer&rsquo;s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.&rdquo;
The new Ohio opinion cautions that if worst comes to worst, and the client insists that you participate in accepting or offering&nbsp;settlement agreement with an impermissible condition,&nbsp;<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation.html">Rule 1.16(a)(1)</a> requires&nbsp;you to&nbsp;withdraw from representation, in order to avoid violating Rule 5.6.&nbsp; Hopefully you won&rsquo;t need to exercise that nuclear option.
* An exception to the nearly-nationwide approach is <a href="http://www.vsb.org/docs/2009-10-pg-rpc.pdf">Virginia&rsquo;s Rule 5.6(b)</a>, which carves out&nbsp;settlement agreement restrictions on a lawyer&rsquo;s right to practice that are&nbsp;approved by &ldquo;a tribunal (in such situations as the settlement of mass tort cases) or a governmental entity.&rdquo;

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Settlement agreements barring use of public info nixed in ethics opinion