Can a Colorado lawyer agree, as part of settling a case, not to represent other clients against the same defendant or to limit how the lawyer handles future cases?

Plain-English summary

Opinion 92 (adopted June 19, 1993) addressed practice restrictions in settlement agreements under Colo. RPC 5.6(b), which provides that a lawyer shall not participate 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 or suit. The Committee concluded that this prohibition clearly bars a settlement provision requiring the settling claimant's lawyer to decline future representation against the party defending the claim, and noted that case law and ethics opinions were virtually unanimous on that point. The opinion traced the rule to predecessor DR 2-108(B) and explained that the rule extends to mere offers, not just completed agreements.

The Committee concluded that lesser restrictions, short of an outright bar on future representation, can also violate Rule 5.6(b). It gave examples drawn from other jurisdictions: conditioning settlement on turning over attorney work product, agreeing not to refer potential clients to other counsel, agreeing to disclose the names of others who had contacted the lawyer about claims, agreeing not to subpoena certain records or fact witnesses in future actions, agreeing not to use a particular expert witness, and accepting forum or venue limits in future cases. The opinion framed the test as whether a provision would restrain the lawyer's exercise of independent judgment on behalf of other clients to a greater extent than an attorney not subject to the limitation, with the public policy favoring full access to legal assistance prevailing over the policy favoring settlement.

The opinion concluded that not every settlement term touching the lawyer is improper. A lawyer may agree to keep the amount and terms of a settlement confidential (if not already public), and it is "close, but permissible" for defense counsel to ask the plaintiff's lawyer to state a present lack of intention to file similar suits. Terms that legitimately bear on the claim being settled, such as returning documents obtained in discovery, are not unethical in proper circumstances, so long as they are not a facade for creating a conflict between the lawyer and present or future non-settling clients.

Currency note

This opinion was issued in 1993, before Colorado's 2008 revisions to the 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: Could a Colorado lawyer agree, in a settlement, not to sue the same defendant for other clients?

A: No. The opinion concluded that under Rule 5.6(b) a lawyer may not offer or make a settlement that requires the lawyer to decline future representation against the party defending the settled claim, and that case law and ethics opinions were virtually unanimous on this.

Q: Did the prohibition reach restrictions short of a complete bar on future cases?

A: Yes. The opinion concluded that lesser restrictions, such as agreeing not to subpoena certain records or witnesses, not to use a particular expert, to accept forum limits, or not to refer potential clients to other counsel, can also violate Rule 5.6(b) if they give the lawyer less discretion than an unrestricted attorney.

Q: Did the rule apply to merely offering such a restriction?

A: Yes. The opinion emphasized that Rule 5.6(b) applies not only to making such an agreement but to offering one, because using practice restrictions as bargaining chips threatens the integrity of the profession.

Q: Were any settlement terms affecting the lawyer permissible?

A: Some. The opinion concluded a lawyer may agree to keep the settlement amount and terms confidential (if not already public) and may return discovery documents in proper circumstances, so long as such terms legitimately bear on the settled claim and are not a facade for a conflict of interest.

Background and rules framework

The opinion interpreted Colo. RPC 5.6(b) (no settlement that restricts a lawyer's right to practice) and its predecessor, DR 2-108(B) of the Colorado Code of Professional Responsibility. It read the rule against the conflict-of-interest concerns of Rules 1.7(b) and 1.9(a), explaining that a practice restriction can create an irreconcilable conflict between the settling lawyer and the lawyer's present or future non-settling clients, and it relied on ABA Formal Opinion 93-371 and numerous out-of-state opinions.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 5.6(b) / Model Rule 5.6 (restrictions on the right to practice)
• Colo. RPC 1.7(b) and 1.9(a) / Model Rules 1.7, 1.9 (conflicts with current and former clients)
• Colo. Code of Professional Responsibility DR 2-108(B) (predecessor rule)

Cases:

• Cohen v. Graham, 722 P.2d 1388 (Wash. Ct. App. 1986), settlement restricting future representation is improper
• Jarvis v. Jarvis, 758 P.2d 244 (Kan. Ct. App. 1988), practice restriction contrary to public policy

Other opinions cited:

• ABA Formal Op. 93-371 (1993): restrictions on a lawyer's right to practice in settlements
• ABA Informal Op. 1039 (1968): covenants not to sue or aid suits against settling defendants
• New Mexico Ethics Op. 1985-5; D.C. Bar Op. 35 (1977); Arizona Op. 90-6

See also

• ABA Formal Op. 93-371: Restrictions on Representing Future Clients
• ABA Formal Op. 06-444: Restrictive Covenants and Retirement Benefits
• ISBA Op. 11-02: Agreement Limiting a Lawyer's Subsequent Use of Information

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_92_2011.pdf