May a lawyer sign a settlement agreement that bars disclosure of the settlement's terms, conditions, or existence?

Plain-English summary

The inquiry concerned a lawyer's signing an agreement containing a provision that prohibits disclosure of the terms, conditions, or existence of a settlement agreement between the lawyer's client and a third party. The committee's opinion was that, consistent with prior informal opinions of the RPC Committee, the proposed confidentiality agreement does not constitute a contemporaneous violation of RPC 1.6, 1.7, or 8.4.

On the separate question of the ethical propriety of a lawyer proposing such an agreement, the committee said it could not comment on another lawyer's conduct.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here. Washington's cited rules correspond to ABA Model Rules 1.6 (confidentiality of information), 1.7 (conflicts of interest), and 8.4 (misconduct).

Common questions

Q: Can a lawyer sign a settlement confidentiality clause covering the settlement's terms or existence?

A: The committee concluded that signing such an agreement does not constitute a contemporaneous violation of RPC 1.6, 1.7, or 8.4.

Q: Did the committee say whether a lawyer may propose such a confidentiality agreement?

A: No. The committee said it could not comment on another lawyer's conduct, which is how it framed the question of proposing the agreement.

Background and rules framework

The opinion applied RPC 1.6 (confidentiality of information), RPC 1.7 (conflicts of interest), and RPC 8.4 (misconduct), corresponding to ABA Model Rules 1.6, 1.7, and 8.4. The committee tied its conclusion to prior informal opinions of the RPC Committee and limited the holding to the act of signing, not the act of proposing, the confidentiality provision.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6
• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4

See also

• WA Ethics Op. 1767: Reporting a Client's Hidden Asset
• WA Ethics Op. 1756: Confidential Client and Conflicts Check
• WA Ethics Op. 1754: Confidences in a Malpractice Defense

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=834

Original opinion text

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

Advisory Opinion: 1770
Year Issued: 1997
RPC(s): RPC 1.6; 1.7; 8.4
Subject: Lawyer signing confidentiality agreement as part of client's settlement

[The inquiry concerns] the ethical propriety of a lawyer signing an agreement which contains a provision prohibiting disclosure of the terms, conditions or existence of a settlement agreement between the lawyer's client and a third party. It is the Committee's opinion that, consistent with prior informal opinions of the RPC Committee, the proposed confidentiality agreement does not constitute a contemporaneous violation of RPC 1.6, 1.7 or 8.4. Regarding the ethical propriety of a lawyer proposing such an agreement, the committee cannot comment on another's lawyer's conduct.