Can a lawyer tell the other side that a win will be highly publicized but a settlement with a confidentiality agreement will keep it quiet?

Plain-English summary

In a medical malpractice case headed for trial, plaintiff's counsel sent a settlement demand stating that a judgment would be "highly publicized," noting that a local television station had run a series about negligent doctors and had asked about a follow-up, and offering that if the case settled with a confidentiality agreement, counsel would not include it in the series. The defendant doctor, who maintained he had committed no malpractice, became upset and began reconsidering trial. The inquiry asked whether plaintiff's counsel committed the crime of intimidation and whether, under In re Himmel, defense counsel had to report it.

The opinion declined to decide whether the facts amount to a crime, explaining that the Committee's role is to interpret the facts against the Rules of Professional Conduct, not to determine criminal liability; it therefore presumed the conduct was not a crime. It concluded that the Rules contain little guidance on settlement negotiation, beyond prohibitions such as not threatening criminal charges or disciplinary proceedings to gain advantage in a civil matter (Rule 1.2(e)) and not acting merely to harass or maliciously injure (Rule 1.2(f)). It concluded that the prospect of adverse publicity can be a legitimate factor in a defendant's decision to settle, and that Rule 3.6 (trial publicity) is concerned almost entirely with pre-trial statements, while truthful reporting of public-record matters after trial is constitutionally protected (Sheppard v. Maxwell; Cox v. Louisiana).

The opinion concluded that negotiation is "an art and not a science" and that aggressive but good-faith pressure tactics are part of the adversary process, comparing the letter to permissible maneuvers such as threatening a second debatable cause of action (ISBA Opinion No. 218) or a civil claim (ABA Informal Opinion 83-1502). It concluded that the conduct did not impede the administration of justice merely because it might convince the defendant to settle, since the law favors settlement. On reporting, it concluded that only misconduct involving criminal acts reflecting on honesty or fitness, or dishonesty or fraud, is reportable under Rule 8.3, and that the lawyer must have actual knowledge; so if (contrary to the presumption) the conduct were the crime of intimidation, it would then be reportable, but a mere Rule 1.2(e) threat would not be.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.2, 1.16, 3.1, 3.4, 3.6(b), 8.3(a), and 8.4(b) and (c)), while noting the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer point out that a trial win will be publicized but a settlement will stay confidential?

A: The opinion concluded that proposing a confidentiality agreement as an alternative to projected publicity if a judgment is obtained is not per se improper, treating it as part of good-faith adversarial negotiation.

Q: Does the trial-publicity rule (Rule 3.6) bar this?

A: The opinion concluded Rule 3.6 is concerned almost entirely with pre-trial statements, and that truthful post-trial reporting of public-record matters is constitutionally protected, so it did not prohibit the letter.

Q: Did defense counsel have to report plaintiff's counsel under Himmel?

A: The opinion concluded that absent the crime of intimidation the conduct is not reportable misconduct, since Rule 8.3 reaches only criminal acts reflecting on honesty or fitness, or dishonesty or fraud, known to the lawyer.

Background and rules framework

The opinion interpreted Rule 1.2 (scope of representation; the bars on threatening criminal or disciplinary action and on harassing conduct under 1.2(e) and (f)), Rule 3.6 (trial publicity), Rule 4.1 (truthfulness to others), and Rule 8.3 read with Rule 8.4 (reporting of misconduct and the definition of reportable misconduct) (Model Rules 1.2, 3.6, 4.1, 8.3, 8.4). It also referenced Supreme Court Rules 771 and 711 on conduct that tends to defeat the administration of justice.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 (scope of representation) / Illinois Rule 1.2(e), (f)
• Model Rule 3.6 (trial publicity) / Illinois Rule 3.6
• Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3; Model Rule 8.4 / Illinois Rule 8.4

Cases:

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), mandatory reporting of known misconduct
• Sheppard v. Maxwell, 384 U.S. 333 (1966), press reporting of public-record matters
• Cox v. Louisiana, 379 U.S. 536 (1965), First Amendment protection of truthful reporting

Other opinions cited:

• ISBA Opinion No. 218 (1962): threatening a debatable second cause of action permissible
• ISBA Opinion No. 90-36: a Rule 1.2(e) threat is not reportable misconduct
• ABA Informal Opinion No. 83-1502: threat of civil prosecution permissible absent false statements

See also

• ISBA Ethics Op. 95-12: Threatening Disciplinary Prosecution to Gain Advantage
• ISBA Ethics Op. 94-23: Duty to Report Conduct of a Non-Illinois Lawyer
• ISBA Ethics Op. 93-20: Duty to Report Conflicts of Interest

Source

• Landing page: https://www.isba.org/ethics/opinions/9319