Can a lawyer accept a settlement with a government agency that requires the lawyer not to represent other, similar clients against that agency in the future?
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This page answers the general question as of 1995. 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 was asked whether a lawyer litigating against a government agency may accept a settlement, favorable to the client, that is conditioned on the lawyer agreeing not to represent similarly situated parties against the same agency in the future. Model Rule 5.6(b) bars a lawyer from participating in offering or making "an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties." The question was whether the final phrase, "between private parties," exempts settlements in which one party is a governmental entity.
The committee held that it does not. It noted that, were only private parties involved, Rule 5.6(b) would plainly prohibit the restriction, as it had concluded in Formal Opinion 93-371, and that Rule 8.4(a) would also bar opposing counsel from requesting such an agreement. Reviewing the drafting history, the committee found that the "between private parties" phrase was added during the Kutak Commission's revisions but that neither the drafting record nor the Comment explains any purpose for excluding government settlements. The Comment indicates only that the prohibition applies where the lawyer is "settling a claim on behalf of a client," which distinguishes disciplinary or agency proceedings in which the lawyer is himself a party (where an agreed suspension is not forbidden).
The committee reasoned that the policies behind Rule 5.6(b) (preserving the public's access to experienced counsel, preventing defendants from "buying off" plaintiffs' lawyers, and avoiding conflicts between present and future clients) apply with full force when the opposing party is the government. It concluded that the phrase "between private parties" is "sensibly to be read as merely descriptive rather than prescriptive," describing the circumstances in which such restrictions are most often proposed rather than limiting the rule's reach. It followed that it would be improper under Rule 5.6(b) for the lawyer to accept the condition and improper under Rule 8.4(a) for the government lawyer to make the offer.
Currency note
This opinion was issued in 1995, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments or 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: Does Rule 5.6(b) apply when the opposing party is a government agency, not a private party?
A: Yes. The committee concluded that the rule's bar on settlement terms restricting a lawyer's right to practice applies even where one party is a governmental entity, reading "between private parties" as descriptive rather than a carve-out.
Q: Can the lawyer agree not to sue the same agency for other clients in exchange for a good settlement?
A: No. The committee held it would be improper under Rule 5.6(b) for the lawyer to agree to such a condition.
Q: Can the government's lawyer even propose such a term?
A: No. The committee said the government lawyer who offers such a restriction violates Rule 8.4(a) by attempting to induce a violation of Rule 5.6(b).
Q: Does this also bar an agreed suspension when the lawyer himself is the party?
A: No. The committee distinguished disciplinary or agency proceedings in which the lawyer is a party; agreeing to a suspension from practice before the agency in settling such a proceeding is not forbidden by Rule 5.6(b).
Background and rules framework
The opinion interpreted Model Rule 5.6(b) (restrictions on a lawyer's right to practice as part of settling a controversy) and Rule 8.4(a) (professional misconduct, including inducing another to violate the rules). It compared the Model Rule's "between private parties" language to the predecessor DR 2-108(B) of the Model Code, which contained no such phrase. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.
Citations and references
Rules of Professional Conduct:
- MR 5.6 (restrictions on right to practice; subsection (b) on settlement terms)
- MR 8.4 (misconduct; subsection (a) on inducing a violation)
Other opinions cited:
- ABA Formal Op. 93-371 (1993): a lawyer may not accept a settlement obligating the lawyer to limit future client representations
- ABA Formal Op. 1039 (1968): earlier treatment of practice-restricting settlement terms
- N.C. State Bar RPC Op. 179 (1994): applying the state analogue to a settlement with a government agency
See also
- ABA Formal Op. 93-371: Settlement terms restricting representation of future clients
- ABA Formal Op. 94-381: Restrictions on a lawyer's right to practice
- ABA Formal Op. 97-405: Conflicts in representing government entities
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 95-394.pdf
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