ETH 2019-04
Opinion 2019-04
Ohio Ethics Opinion
Ohio Board Of Professional Conduct
June 13, 2019
D.
ALLAN ASBURY SENIOR COUNSEL
KRISTI
R. MCANAUL COUNSEL
RICHARD A. DOVE DIRECTOR
PATRICIA A. WISE VICE- CHAIR
Practice
Restrictions in Proposed Settlement Agreements
SYLLABUS:
A lawyer may not offer or agree to a direct or indirect
restriction on the lawyer’s right to practice as part
of a proposed settlement agreement. A settlement provision
that gives a lawyer significantly less discretion in the
prosecution of future claims than a lawyer who is not subject
to the agreement is an impermissible restriction on the
lawyer’s right to practice law. A lawyer may not offer
or agree to a settlement agreement that requires a lawyer to
affirm that that he or she does not represent any other
individuals with similar claims against the defendant,
prohibits the lawyer from the solicitation of clients with
similar claims against the same defendant, or requires the
lawyer keep confidential all information obtained during
litigation. A lawyer may offer or agree to a narrowly drafted
settlement provision to not publicly disparage the defendant
if it permits the filing of additional civil complaints
against the defendant, the advertising of the lawyer’s
previous experience with the defendant, and the consultation
with prospective clients about the lawyer’s experience
with the defendant.
QUESTIONS
PRESENTED:
(1)
Whether a lawyer may affirm as part of a settlement agreement
that he or she does not represent any other individuals with
similar claims against the defendant;
(2)
Whether a lawyer may agree as part of a settlement agreement
that he or she will not solicit, nor seek, new clients with
similar claims against the defendant;
(3)
Whether a lawyer may agree as part of a settlement agreement
to keep all information obtained during litigation
confidential;
(4)
Whether a lawyer may agree as part of a settlement agreement
that he or she will not “disparage” the
defendant.
APPLICABLE
RULES: Prof.Cond.R. 1.2, 1.4, 1.6, 1.7, 1.16, 5.6
OPINION
HON.
JOHN W. WISE CHAIR.
It is
common for a lawyer to seek as part of a settlement agreement
terms and conditions that will limit a client’s
exposure to future litigation. For example, a lawyer might
attempt to limit a client’s exposure by drafting a
settlement agreement that will prevent the plaintiff’s
lawyer from bringing the same or similar claims against his
or her client in the future. However, a lawyer is prohibited
from either “offering or making” an agreement
that includes a provision that places restrictions on a
lawyer’s right to practice. Prof.Cond.R. 5.6(b).
Therefore, as a condition of settling a client’s case,
a lawyer may not agree to restrict his or her own practice of
law or propose that opposing counsel restrict the
lawyer’s future practice. This prohibition equally
applies to settlement provisions that seek to restrict
outright the...