Can a lawyer agree to a settlement term barring the lawyer from disclosing information that is a public record?

Plain-English summary

The Board addresses whether a lawyer may participate in offering or accepting a settlement agreement conditioned on restricting the lawyer's post-settlement communications about publicly accessible government records, including information that could be obtained through a public records request under Ohio or federal law. The opinion builds on prior Ohio opinions 2018-03 and 2019-04, which applied Prof.Cond.R. 5.6(b) to settlement terms restricting a lawyer's right to practice.

The opinion concludes that Prof.Cond.R. 5.6(b) prohibits a lawyer from participating in the offer or acceptance of such a term. The Board reasons that barring a lawyer from using a government public record interferes with the lawyer's ability to advertise and market services consistent with the advertising rules (Prof.Cond.R. 7.1 through 7.3), and that the apparent intent of such terms is to limit a plaintiff's lawyer from attracting new clients based on prior experience against a particular defendant. Drawing on Md. Ethics Op. 2016-07, the opinion notes that complying with such a term would limit the lawyer's ability to develop and discuss legal strategy with future clients. The Board identifies the broader interests Rule 5.6(b) protects: the public's ability to choose experienced counsel, preventing settlements from "buying off" plaintiff's counsel, and avoiding conflicts between current, former, and prospective clients. It cites Tex. Ethics Op. 505, Bates v. State Bar of Arizona, and ABA Op. 93-171.

The opinion adds an important limit: because the Ohio Public Records Act (R.C. 149.43) and the federal FOIA (5 U.S.C. § 552) contain many exemptions, not every request for a nondisclosure term violates Rule 5.6(b); whether a given record is exempt is a question of law beyond the Board's authority, and the rules are not to be used as procedural weapons. Finally, the opinion addresses the client's settlement authority: even though Prof.Cond.R. 1.2(a) requires a lawyer to abide by the client's decision to settle, Rule 5.6(b) makes compliance with an offending term impossible, so the lawyer must advise the client and, if the client insists, withdraw under Prof.Cond.R. 1.16(a)(1). The Board recommends the holding apply prospectively.

In practice

Under this opinion, an Ohio lawyer negotiating a settlement may not propose or agree to a term that bars the lawyer from disclosing information contained in a publicly accessible government record through the media or otherwise permissible advertising. The opinion treats such a term as a restriction on the right to practice under Prof.Cond.R. 5.6(b), applying to both the offering side and the accepting side.

The opinion qualifies the rule on two fronts. First, because public-records statutes carry many exemptions, not every nondisclosure request is a violation, and whether a record is exempt is a legal question the Board does not resolve. Second, if a client insists on accepting a settlement that includes an offending restriction, the opinion directs the lawyer to withdraw under Prof.Cond.R. 1.16(a)(1) rather than comply.

Common questions

Q: Can an Ohio lawyer agree to keep a public record confidential as part of a settlement?

A: The opinion concludes a settlement term barring a lawyer from disclosing a publicly accessible government record is an impermissible restriction on the right to practice under Prof.Cond.R. 5.6(b), which the lawyer may not offer or accept.

Q: Does the rule apply to the lawyer proposing the term, or only to accepting it?

A: Per the opinion, both. Prof.Cond.R. 5.6(b) prohibits a lawyer from participating in either the offer or the acceptance of such a settlement agreement.

Q: What if the client wants to take the settlement anyway?

A: The opinion states the lawyer should advise the client that participating is prohibited, and if the client insists on accepting the condition, the lawyer must withdraw under Prof.Cond.R. 1.16(a)(1).

Q: Is every nondisclosure request in a settlement a violation?

A: No. The opinion explains that because the Ohio Public Records Act and FOIA contain many exemptions, not every request to prohibit disclosure violates Rule 5.6(b), and whether a particular record is exempt is a question of law beyond the Board's authority.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 5.6(b) (Model Rule 5.6(b)), which bars a lawyer from participating in offering or making a settlement that restricts the lawyer's right to practice. It also applies Prof.Cond.R. 1.2(a) (the client's authority to settle; Model Rule 1.2), 1.16(a)(1) (mandatory withdrawal; Model Rule 1.16), and the advertising rules 7.1 through 7.3 (Model Rules 7.1-7.3). It references the Ohio Public Records Act (R.C. 149.43) and FOIA (5 U.S.C. § 552).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.6(b) / Ohio Prof.Cond.R. 5.6(b) (restrictions on the right to practice in a settlement)
• Model Rule 1.2 / Ohio Prof.Cond.R. 1.2(a) (client's authority to settle)
• Model Rule 1.16 / Ohio Prof.Cond.R. 1.16(a)(1) (mandatory withdrawal)
• Model Rules 7.1-7.3 / Ohio Prof.Cond.R. 7.1, 7.2, 7.3 (advertising and solicitation)

Statutes:

• R.C. 149.43 (Ohio Public Records Act); 5 U.S.C. § 552 (Freedom of Information Act)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), advertising of legal services

Other opinions cited:

• Ohio Adv. Op. 2018-03 and 2019-04: settlement terms restricting a lawyer's right to practice
• Md. Ethics Op. 2016-07; Tex. Ethics Op. 505 (1994); ABA Op. 93-171; Colo. Bar Ethics Op. 92 (1993)

See also

• ABA Formal Op. 00-417: Settlement Terms Limiting Use of Information
• ABA Formal Op. 06-444: Restrictive Covenants and Retirement Benefits

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2023/12/Adv.-Op.-2023-13-FInal.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OPINION 2023-13
Issued December 8, 2023

Settlement Agreement Prohibiting a Lawyer's Disclosure of Information Contained in a Public Record

SYLLABUS: A settlement agreement that prohibits a lawyer's disclosure of a publicly accessible government record or the information contained therein is an impermissible restriction on the lawyer's right to practice. A lawyer may not participate in either the offer or acceptance of a settlement agreement that includes a prohibition on a lawyer's disclosure of the same. However, due to the complexity of exemptions contained in state or federal law, not all requests to prohibit disclosure will be a violation of Prof.Cond.R. 5.6(b). A lawyer is not required to abide by a client's decision to settle a matter if the settlement is conditioned on a restriction to practice and must withdraw from the representation.

The Board recommends that the holding in this opinion be applied prospectively.

QUESTION PRESENTED:

May a lawyer participate in the offer or acceptance of a settlement agreement that is conditioned on the restriction of a lawyer's post-settlement communications about publicly accessible governmental records, including information contained in documentary evidence or a settlement agreement, when that information is available through a public records request under Ohio or federal law?

APPLICABLE RULES: Prof.Cond.R. 1.2, 1.16, 5.6, 7.1, 7.2, 7.3.

OPINION:

Background

A lawyer is prohibited from participating in the offering or making of a settlement of a claim or controversy through the use of a written agreement that contains a restriction on the lawyer's right to practice. Prof.Cond.R. 5.6(b). In Adv. Op. 2018-03 the Board addressed whether a lawyer may offer or accept a settlement agreement that is conditioned on the restriction of a lawyer's post-settlement communications about information contained in the court record. In Adv. Op. 2019-04, the Board provided guidance to lawyers when determining if a settlement provision imposes an impermissible restriction on the practice of the lawyer. The Board indicated that if a provision provides significantly less discretion for the lawyer in pursuit of future claims, the provision is an impermissible restriction on the practice of that lawyer under Prof.Cond.R. 5.6.

The requesting lawyer inquires whether the rationale of Adv. Op. 2018-03 applies to publicly accessible governmental records. The requesting attorney reports that despite the Board's prior guidance, some parties, including governmental entities, continue to seek additional confidentiality provisions that prevent opposing counsel, most often the plaintiff's lawyer, from making any public announcement, comment, or communications to the media or through lawyer advertising concerning the case, including information that may be a public governmental record available pursuant to state or federal law. Potentially applicable law may include, but is not limited to, records accessible under the Ohio Public Records Act, the Freedom of Information Act, or the Rules of Superintendence.

Question Presented

Prof.Cond.R. 5.6(b) has been interpreted in at least one other jurisdiction to prohibit a lawyer from agreeing or asking another lawyer to agree never to use or disclose public information regarding a matter. Md. Ethics Op. 2016-07 (2016). The Maryland opinion observed that "complying with such a provision would necessarily limit an attorney's ability to develop or to discuss legal strategy and prior litigation with future clients, and therefore would require the attorney to either refuse to undertake particular representations, or to undertake such cases with only a limited ability to communicate with a client, in potential violation of [Prof.Cond.R.] 1.4." Id.

Prohibiting the lawyer from using a governmental public record directly interferes with the lawyer's ability to advertise and market his or her services in a manner consistent with the Rules of Professional Conduct. See Adv. Op. 2018-03 and Prof.Cond.R. 7.1 - 7.3. The advertising of a lawyer's services and the solicitation of clients is an integral part of the practice of law and may not be restricted through a private settlement agreement. Tex. Ethics Op. 505 (August 1994). See also Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977).

Similar to the question presented in Adv. Op. 2018-03, the apparent intent of a settlement agreement provision prohibiting communication of information contained in a governmental public record is to limit the plaintiff's lawyer's ability to attract new clients based on the lawyer's prior experience against a particular defendant. This type of settlement provision also gives the lawyer less discretion in pursuing claims on behalf of clients than a lawyer who is not subject to a similar agreement. Adv. Op. 2018-03 and Adv. Op. 2019-04, citing Colo. Bar Ethics Op. 92 (1993). More importantly, the prohibition contained in Prof.Cond.R. 5.6(b) serves to protect the public's unfettered ability to choose lawyers who have the requisite background and experience to assist in pursuing their claims. This provision also prevents settlement agreements from being used to "buy off" plaintiff's counsel through an offer of a higher settlement amount in exchange for the lawyer foregoing future litigation against the same defendant. Lastly, the rule prevents the creation of conflicts between the interests of current or former clients and those of prospective clients. ABA Op. 93-171.

For the foregoing reasons, the Board concludes that Prof.Cond.R. 5.6(b) prohibits a lawyer from participating in the offer or acceptance of a settlement agreement that includes a prohibition on the disclosure of information in publicly accessible governmental records, including documentary evidence or a settlement agreement that is available through a public records request under Ohio or federal law. A settlement agreement under which a lawyer is prohibited from disclosing information contained in a public record via the media or otherwise permissible advertising constitutes an impermissible restriction on the lawyer's right to practice.

When engaging in settlement negotiations lawyers should be particularly mindful of the prohibition against both making and accepting a settlement on a condition restricting the practice of lawyers or law firms in the case. There are multiple exemptions to the Ohio Public Records Act contained in R.C. 149.43 and in other chapters of the Revised Code. The Freedom of Information Act, 5 U.S.C. § 552, also has multiple exemptions that prohibit release of certain documents and information to protect interests such as personal privacy, national security, and law enforcement. Whether and under what circumstances a particular piece of documentary evidence, information contained in a record, or a settlement agreement may be properly protected from disclosure pursuant to the Ohio Public Records Act or the Freedom of Information Act is a question of law that the Board is without authority to address. Counsel must recognize that reasonable lawyers may disagree as to which records or information is a proper exemption limiting disclosure pursuant to a public records request under applicable law. Not every request for a settlement provision preventing disclosure of information contained in a public record will be a violation of Prof.Cond.R. 5.6(b). The Rules are rules of reason and are not meant to be invoked by opposing parties as procedural weapons. Prof.Cond.R., Scope, cmt. [14] and [20].

Abiding by a Client's Decision to Settle a Matter

The offer by a party to settle a case conditioned on a restriction of the right to practice necessarily involves the lawyer's obligation to abide by a client's decisions concerning settlement. Prof.Cond.R. 1.2(a). A lawyer may be faced with a situation where a client's willingness to settle may be heightened when a larger settlement is conditioned on inclusion of a restriction on the lawyer's right to practice. While a lawyer is required to abide by the client's decision to settle, the prohibition in Prof.Cond.R. 5.6(b) makes it impossible for the lawyer to comply with the client's instructions. As in Adv. Op. 2018-03, the Board reiterates that lawyers should not be lured by the confidential nature of the settlement agreement to include provisions that violate Prof.Cond.R. 5.6. The integrity and self-regulatory nature of the profession requires lawyers to voluntarily comply with the rules of professional conduct even when their conduct is not subject to public review or scrutiny. See Prof.Cond.R., Preamble, cmt. [16].

A lawyer should advise the client that he or she is ethically prohibited from participating in the acceptance of an offer that includes a condition that restricts his or her right to practice. If the client insists upon accepting the settlement with the condition, the lawyer must withdraw from the representation to avoid a violation of Prof.Cond.R. 5.6(b). Prof.Cond.R. 1.16(a)(1) (a lawyer shall withdraw from the representation if it will result in violation of the Rules of Professional Conduct.)