In a mass-tort global settlement, can a defendant condition the deal on the plaintiffs' firm agreeing not to represent present or future claimants against that same defendant?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee considered a mass-tort scenario in which a defendant asked a plaintiffs' law firm to enter a global settlement covering not only the firm's present cases but all future cases against that defendant. The agreement set predetermined settlement amounts by severity of impairment; clients who declined would proceed to litigation or be placed on a "deferred docket" of inactive cases. An "escape hatch" let a limited percentage of cases be removed for individual adjudication, but if the percentage of opt-out clients exceeded the cap, the firm would be obligated to refuse to represent those clients, whether they were existing clients or became clients later.
The committee framed the question as the intersection of the lawyer's duty to present clients under Rule 1.2 and the prohibition on practice restrictions under Rule 5.6. It assumed the settlement might well be in the interest of most present clients, and recognized that part of why those clients could obtain favorable terms was the defendant's willingness to pay more to secure the firm's covenant not to represent others. Under Rule 1.2, the lawyer would normally have to abide by present clients' decisions to accept a favorable settlement offer.
The committee nonetheless held that the covenant restricting the firm from representing future claimants (and present clients seeking individual adjudication) against the same defendant violates Rule 5.6(b), which bars a lawyer from offering or making an agreement that restricts the lawyer's right to practice "as part of the settlement of a controversy between private parties." The opinion concluded that such a restriction may not be demanded or accepted, even where it would benefit the firm's current clients in the immediate settlement, because it impermissibly limits the future availability of counsel to other claimants.
Currency note
This opinion was issued in 1993, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a defendant make a global settlement conditional on the plaintiffs' firm not taking future cases against it?
A: No. The opinion concluded that such a settlement term violates Rule 5.6(b)'s ban on agreements restricting a lawyer's right to practice as part of settling a controversy.
Q: Does it matter that the deal would benefit the firm's current clients?
A: The committee assumed the settlement could benefit most present clients and still held the practice-restriction covenant impermissible; the benefit to current clients does not cure the Rule 5.6(b) violation.
Q: Who is the rule protecting in this situation?
A: The opinion's concern is the future claimants and the public's access to counsel, since the covenant would remove an experienced firm from representing others against the same defendant.
Background and rules framework
The opinion interpreted Rule 5.6(b) (a lawyer shall not offer or make an agreement restricting the right to practice as part of settling a controversy) against the backdrop of Rule 1.2 (the lawyer's duty to abide by present clients' settlement decisions) and Rule 1.7 (conflicts among the interests of present and future clients). It held that Rule 5.6(b) forbids the settlement covenant even when accepting it would serve the immediate interests of current clients. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.
Citations and references
Rules of Professional Conduct:
- MR 5.6(b) (restrictions on the right to practice; settlement of a controversy)
- MR 1.2 (scope of representation; client's settlement decisions)
- MR 1.7 (conflict of interest; current clients)
Cases:
- In re Asbestos Cases, 586 N.E.2d 521 (Ill. App. 1991), describing the "deferred docket" mechanism
See also
- ABA Formal Op. 94-381: Restrictions on the right to practice
- ABA Formal Op. 00-417: Settlement terms limiting a lawyer's use of information
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 93-371.pdf
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