Does Connecticut Rule 5.6(2) prohibit a settlement confidentiality clause barring lawyers from disclosing information available in public court files?
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This page answers the general question as of 2019. Ask about yours and see what the current Connecticut Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
Rule 5.6(2) prohibits a settlement agreement that restricts a lawyer's right to practice. The Committee concludes that its text and commentary target agreements not to represent another person, not agreements that merely restrict disclosure of information from the settled matter.
Rules 1.6 and 1.9 already let current and former clients control disclosure of information relating to their representations, whether the information is public or nonpublic. A settlement nondisclosure clause accepted by the client therefore generally restates duties that apply absent client consent. It does not prevent the lawyer from representing other clients with similar claims.
The Committee distinguishes disclosure restrictions from limits on using information in future work. It also rejects a public-file exception because the Rules do not distinguish public from nonpublic information. The opinion disagrees with Ohio and several other ethics bodies that treated restrictions on advertising public-file information as restrictions on practice.
In practice
Under this opinion, Rule 5.6(2) does not generally bar a settlement clause that limits publicity or advertising by restricting disclosure of information relating to the representation. The analysis changes when a term limits whom the lawyer may represent or restricts use of information in future representation.
Common questions
Q: Does Rule 5.6(2) cover every settlement term affecting a lawyer?
A: No. The Committee reads the Rule and commentary as prohibiting restrictions on representing other clients, not every restriction on disclosure or publicity.
Q: Does it matter that the information is in a public court file?
A: No under this opinion. Rule 1.6 protects information relating to the representation without distinguishing public from nonpublic information.
Q: May a clause prevent the lawyer from representing similar future clients?
A: No. A restriction on future representation is the type of practice restriction prohibited by Rule 5.6(2).
Q: Is restricting disclosure the same as restricting use of information?
A: No. The opinion says a disclosure restriction generally does not impair future representation, while a restriction on use may implicitly limit the lawyer's ability to represent other clients.
Q: Why did the Committee disagree with the Ohio opinion?
A: It concluded that advertising and publicity restrictions do not themselves restrict representation, and that neither the Rules nor their commentary creates a public-information exception to confidentiality.
Background and rules framework
Connecticut Rule 5.6(2), identical in relevant part to ABA Model Rule 5.6(b), addresses settlement restrictions on a lawyer's right to practice. Rules 1.6 and 1.9(c) govern disclosure of information concerning current and former clients.
Citations and references
Rules of Professional Conduct:
- Connecticut Rules 5.6(2), 1.6, and 1.9(c)
- ABA Model Rules 5.6(b) and 1.6
Other opinions cited:
- ABA Formal Opinion 00-417, settlement restrictions on disclosure and use
- Connecticut Informal Opinion 2011-08, confidentiality clauses and similar future claims
- Connecticut Informal Opinion 2013-10, settlement non-disparagement clause
- Connecticut Informal Opinion 05-01, public and nonpublic information under Rule 1.6
- Ohio Board of Professional Conduct Opinion 2018-3, contrary view on public-file information
- Florida Bar Ethics Opinion 04-2, confidentiality of settlement terms
- Pennsylvania Bar Association Formal Opinion 2016-300, settlement confidentiality
- New York State Bar Association Opinion 730, confidential settlement terms
See also
- Utah Ethics Op. 25-01: Non-disparagement and practice restrictions
- Arizona Ethics Op. 90-06: Confidentiality and practice restrictions
- Virginia LEO 1715: Settlement restriction on hiring lawyers
Source
- Landing page: Connecticut Bar Association Informal Ethics Opinions
- Original PDF: Informal Opinion 19-02
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