Can a lawyer propose or agree to a settlement non-disparagement clause that binds opposing counsel from saying anything negative about the other side?

Plain-English summary

The Committee was asked two related questions about a settlement non-disparagement clause: whether the proposing lawyer (Attorney A) may participate in offering an agreement that asks opposing counsel (Attorney D) to agree not to make any negative communication about Attorney A's clients or Attorney A, and whether opposing counsel may agree to such a clause. The Committee answered no to both, based on Utah Rule of Professional Conduct 5.6(b).

Rule 5.6(b) 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 client controversy. The Committee concludes that a broadly worded non-disparagement clause can be such a restriction. The proposed clause barred any negative communication about the protected parties with any third party, and defined "disparage" expansively. The opinion gives three illustrations of how that would restrict Attorney D's practice: it would impede resolving other clients' pending controversies with the protected parties, impede advising clients with future controversies involving them, and impede bringing or defending future claims involving them. The opinion adds that allowing opposing counsel the same narrow exception the client received (truthful statements to government agencies or as a witness) would still restrict the lawyer's practice, because the practice of law is much broader than that exception.

The opinion concludes that where such a non-disparagement clause would restrict a lawyer's right to practice, Rule 5.6(b) prohibits Attorney A from participating in offering it and Attorney D from making it. The Committee also notes that Rules 8.3(a) and 8.4(d) bear on the agreements a lawyer may make: a lawyer may not agree to forgo the Rule 8.3(a) duty to report another lawyer's reportable misconduct, and under Rule 8.4(d) may not enter an agreement that would inhibit the lawyer's ability to cooperate with the Office of Professional Conduct, citing Utah Ethics Opinion 16-02.

In practice

The opinion holds that, on the facts presented, a settlement non-disparagement clause that restricts a lawyer's right to practice may neither be offered nor agreed to under Rule 5.6(b). Per the opinion, the analysis turns on whether the clause restricts the lawyer's right to practice; the proposed clause did so by limiting the lawyer's ability to handle other clients' matters and future claims involving the protected parties. The opinion further states that a lawyer may not agree to terms that would waive the Rule 8.3(a) duty to report misconduct or that would inhibit cooperation with the Office of Professional Conduct under Rule 8.4(d).

Common questions

Q: Can a lawyer ask opposing counsel to sign a non-disparagement clause as part of a settlement?

A: Not where the clause restricts the lawyer's right to practice. The opinion concludes Rule 5.6(b) bars the proposing lawyer from participating in offering such a clause.

Q: Can opposing counsel agree to the clause if the client wants the settlement?

A: No. The opinion concludes Rule 5.6(b) bars a lawyer from making an agreement that restricts the lawyer's right to practice as part of settling a client controversy.

Q: Why is a non-disparagement clause a restriction on the right to practice?

A: The opinion explains that a broad non-disparagement clause would restrict the lawyer from resolving other clients' controversies with the protected parties, advising clients with future controversies involving them, and bringing or defending future claims involving them.

Q: Can a settlement agreement waive a lawyer's duty to report misconduct?

A: No. The opinion states that under Rule 8.3(a) a lawyer may not agree to refrain from reporting reportable misconduct, and under Rule 8.4(d) may not agree to anything that would inhibit cooperation with the Office of Professional Conduct.

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 5.6(b), which corresponds to ABA Model Rule 5.6(b) and prohibits offering or making an agreement that restricts a lawyer's right to practice as part of the settlement of a client controversy. The opinion also applies Rule 8.3(a) (reporting professional misconduct) and Rule 8.4(d) (conduct prejudicial to the administration of justice), reading both to limit the agreements a lawyer may make. The Committee aligns its conclusion with authorities from other jurisdictions, including ABA Formal Opinion 00-417, Texas Ethics Opinion 708 (2025), and North Carolina 2023 Formal Ethics Opinion 2.

Citations and references

Rules of Professional Conduct:

• MR 5.6 / Utah RPC 5.6(b) (restrictions on a lawyer's right to practice; settlement of a client controversy)
• MR 8.3 / Utah RPC 8.3(a) (reporting professional misconduct)
• MR 8.4 / Utah RPC 8.4(d) (conduct prejudicial to the administration of justice)

Other opinions cited:

• ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 00-417 (2000)
• Texas Ethics Opinion 708 (2025); North Carolina 2023 Formal Ethics Opinion 2
• Maryland Committee on Ethics Docket No. 2021-03; Connecticut Informal Op. 2013-10
• Utah Ethics Opinion 16-02 (cooperation with the Office of Professional Conduct)

See also

• ABA Formal Op. 00-417: Settlement Terms Limiting Use of Information
• ABA Formal Op. 94-381: Restrictions on a Lawyer's Right to Practice
• ABA Formal Op. 95-394: Settlement Restricting Practice Against the Government

Source

• Landing page: https://www.utahbar.org/ethics-opinions/25-01/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2025/09/25-01.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor errors may remain; the linked PDF is authoritative.

Utah State Bar

Ethics Advisory Opinion Committee

Opinion Number 25-01

Issued August 14, 2025

ISSUES

¶1 As counsel to Parties A/B/C, may Attorney A participate in offering a settlement agreement that asks opposing counsel Attorney D to agree to a non-disparagement clause where disparage is construed to include any negative communication about Parties A/B/C and/or Attorney A?

¶2 May Attorney D agree not to disparage Parties A/B/C and/or Attorney A as part of settling a controversy between Parties A/B/C and Party D, Attorney D's client, where disparage is construed to include any negative communication about Parties A/B/C and/or Attorney A?

OPINION

¶3 Issue 1: No. Utah Rule of Professional Conduct 5.6(b) prohibits an attorney from "participat[ing] in offering" to resolve a client controversy that includes a non-disparagement clause that restricts an attorney's right to practice.

¶4 Issue 2: No. Utah Rule of Professional Conduct 5.6(b) prohibits an attorney from "making" an agreement to resolve a client controversy that includes a non-disparagement clause that restricts an attorney's right to practice.

BACKGROUND

¶5 Attorney A represents Parties A/B/C. Attorney D represents Party D.

¶6 As part of a settlement of a controversy between Parties A/B/C and Party D, Attorney A proposed an agreement that read: "[Party D] and his/her counsel agree that they will not defame, disparage, or impugn [Parties A/B/C and/or Attorney A] in any communications, written or verbal, with any third-party or entity."

¶7 The agreement defined disparage to mean "to make any statement, written or oral, that casts [Parties A/B/C and/or Attorney A] in a negative light of any kind, or implies or attributes any negative quality to those entities, including, but not limited to, any negative references regarding the methods of conducting business."

¶8 An exception allowed Party D to make "truthful statements to government agencies or authorities, or as a witness in a deposition, hearing or trial, if necessary to comply with applicable law." The exception did not explicitly include Attorney D, as counsel to Party D.

ANALYSIS

¶9 Utah Rule of Professional Conduct 5.6(b) provides: "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 client controversy."

¶10 A non-disparagement agreement may constitute a restriction on a lawyer's right to practice law. See, e.g., Texas Ethics Opinion 708 (2025) (opining that "a lawyer may not agree to be personally bound by a non-disparagement clause in a client settlement agreement that applies to statements the lawyer might make in the course of practicing law"); North Carolina 2023 Formal Ethics Opinion 2 (noting that "Rule 5.6 prohibits . . . settlement terms whose practical effect is to restrict the lawyer from undertaking future representations"); Maryland Committee on Ethics Docket No. 2021-03 (stating that "[i]t is not ethically proper for an attorney to sign a client's settlement agreement . . . if the document broadly obligates the attorney to maintain confidentiality and non-disparagement such that it could act to restrict the attorney's right to practice"); Connecticut Professional Ethics Committee Informal Opinion 2013-10 (declaring that "a non-disparagement clause may not restrict a lawyer's use of information gained in one case in another case and cannot bar a lawyer from accusing the defendant of wrongdoing in that other litigation"); ABA Comm. On Ethics & Professional Responsibility, Formal Op. 00-417 (2000) (quoting Colorado Bar Ethics Opinion No. 92 that "a claimant's attorney should not agree to a settlement restriction giving the attorney significantly less discretion in the prosecution of a claim than an attorney independent of the agreement would have").

¶11 The proposed non-disparagement agreement would restrict Attorney D's right to practice law in various ways. Three examples illustrate. First, the preclusion of negative communication with a third party would restrict Attorney D from resolving pending controversies clients other than Party D have with Parties A/B/C and/or Attorney A. Second, the preclusion would restrict Attorney D from advising clients and potential clients who may have future controversies involving Parties A/B/C and/or Attorney A. Third, the preclusion would restrict Attorney D from bringing future claims against Parties A/B/C and/or Attorney A or defending clients against claims Parties A/B/C and/or Attorney A may bring against those clients.

¶12 Allowing Attorney D the same exception as Party D would still restrict Attorney D's right to practice law. The practice of law is much broader than the exception allows to make "truthful statements to government agencies or authorities, or as a witness in a deposition, hearing or trial, if necessary to comply with applicable law."

¶13 Where, as here, a non-disparagement clause in a client settlement agreement would restrict an attorney's right to practice law, Utah Rule of Professional Conduct 5.6(b) prohibits Attorney A from participating in offering that agreement and Attorney D from making it.

¶14 Utah Rules of Professional Conduct 8.3(a) and 8.4(d) also bear on the agreements an attorney may make.

¶15 Under Utah Rule of Professional Conduct 8.3(a) an attorney must "inform the appropriate professional authority" when the attorney "knows that another legal professional has committed a violation of the applicable Rules of Professional Conduct that raises a substantial question as to that legal professional's honesty, trustworthiness or fitness as a legal professional." An attorney may not agree to do otherwise.

¶16 Under Utah Rule of Professional Conduct 8.4(d), an attorney may not enter into any agreement that would inhibit the lawyer's ability to cooperate with the Office of Professional Conduct. See also Utah Ethics Opinion 16-02.