As a injury attorney in Western New York and Buffalo who represents seriously injured people due to car accidents and faulty products, I am often confronted with defense attorneys who demand a confidentiality agreement in order to settle the case. However, such agreements can actually be unethical under Rule of Professional Conduct 5.6 (b). Such agreements are intended to hide the bad acts of the defendant. This causes serious problems especially when others may still be at risk of being injured by those same bad acts.
Agreements that require attorneys not to discuss the facts of the case and go beyond keeping only the amount and terms of the settlement confidential are unethical. If the agreement prevents the attorney or plaintiff from discussing prior cases or even the discovery which was obtained through those cases, they will not effectively be able to represent other clients similarly situated if she cannot use the same information in other cases. This is especially unethical when the information intended to be kept confidential is already public information. Another reason for this is that it prevents the attorney from letting other potential clients know of her relevant experience which affects the client’s availability of counsel. See, D.C. Bar Legal Ethics Comm., Op. 335 (2006).
Such agreements also violate the Rules of Professional Conduct because other people may have claims against that same defendant, and it is unethical for defense counsel to request that a third party voluntarily withhold facts regarding those claims. It is unethical for defense counsel to even make such a request. Further, attempting to prevent plaintiff or plaintiff’s counsel from ever discussing information which has “gone public” is recognized under the law as essentially an attempt to “buyout” plaintiff’s attorney from representing similarly situated defendants.
Please call us if you have any questions regarding these matters. We have successful experience in this area and can be of great assistance.