Can a lawyer threaten to sue opposing counsel for calling a witness who signed a settlement confidentiality clause, and is that clause even valid?

Plain-English summary

The committee considered an inquiry about another lawyer's threat to sue the inquirer personally for calling a witness to testify, where the inquirer and that witness had, in previous litigation, signed a settlement agreement that included a "confidentiality" provision. The committee said the enforceability of the agreement was a legal question it could not address.

The committee did point out that such an agreement, if it would act to limit a lawyer's right to call any witness in future litigation, would appear to violate RPC 5.6(b), which prohibits lawyers from making agreements restricting a lawyer's right to practice as part of the settlement of a controversy between private parties. As to the threat, the committee was of the opinion that if the other lawyer did believe the contract was enforceable and that the inquirer was threatening to breach it, and it was in fact the client's intent to bring suit if it were breached, then there would be nothing improper in communicating that fact. However, if the threat were merely being used as a trial tactic, the committee was of the opinion that such conduct would appear to violate RPC 4.4, which prohibits a lawyer from using means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 5.6 on restrictions on a lawyer's right to practice and RPC 4.4 on respect for the rights of third persons were later renumbered and amended. Treat this page as historical context, not current guidance.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: Is a settlement clause that limits which witnesses a lawyer can later call valid?

A: The committee said enforceability was a legal question it could not address, but it pointed out that such a clause, if it limited a lawyer's right to call any witness in future litigation, would appear to violate RPC 5.6(b).

Q: Can a lawyer warn opposing counsel that calling the witness would breach the agreement?

A: Per the opinion, yes, if the lawyer genuinely believed the contract was enforceable and being breached and the client in fact intended to sue; the committee saw nothing improper in communicating that.

Q: When does such a threat cross the line?

A: The committee was of the opinion that if the threat were merely used as a trial tactic, it would appear to violate RPC 4.4, which bars means having no substantial purpose other than to embarrass, delay, or burden a third person.

Background and rules framework

The opinion applies Washington RPC 5.6(b), which prohibits a lawyer from agreeing to restrict the right to practice as part of a settlement between private parties (corresponding to Model Rule 5.6(b)), and RPC 4.4, on respect for the rights of third persons (corresponding to Model Rule 4.4). The committee separated the legal question of contract enforceability, which it would not decide, from the ethical questions: whether the clause offended RPC 5.6(b) and whether the threat to enforce it was a genuine warning or an improper trial tactic under RPC 4.4.

Citations and references

Rules of Professional Conduct:

• Washington RPC 5.6(b) (no settlement restricting a lawyer's right to practice), corresponding to Model Rule 5.6(b).
• Washington RPC 4.4 (respect for the rights of third persons), corresponding to Model Rule 4.4.

See also

• NYC Bar Ethics Op. 1999-03: restrictive practice agreements in settlement agreements
• ABA Formal Op. 06-444: restrictive covenants and retirement benefits
• ISBA Ethics Op. 11-02: an agreement limiting a lawyer's subsequent use of third-party content

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=178

Original opinion text

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

Advisory Opinion: 1067
Year Issued: 1987
RPC(s): RPC 4.4; 5.6(b)
Subject: Threat by lawyer to sue opposing counsel for calling witness with whom lawyer previously signed settlement agreement containing confidentiality provision

The Committee considered your inquiry concerning the threat by another lawyer to sue you personally if you called a witness to testify after you and that witness in previous litigation had signed a settlement agreement which included a "confidentiality" provision. While the question of the enforceability of the agreement is a legal question which the Committee cannot address, the Committee did want to point out that such an agreement, if in fact it would act to limit a lawyer's right to call any witness in future litigation, would appear to violate RPC 5.6(b) which prohibits lawyers from making agreements restricting a lawyer's right to practice as part of a settlement of a controversy between private parties. Regarding the threat, the Committee was of the opinion that if the other lawyer did believe that the contract was enforceable and that you were threatening to breach the agreement, and it was in fact his client's intent to bring suit if it were breached, then there would be nothing improper in communicating that fact to you. However, if such a threat were merely being used as a trial tactic, then it would appear that such conduct would violate RPC 4.4, which prohibits a lawyer from using means that have no substantial purpose other than to embarrass, delay, or burden a third person.