Bar News - July 15, 2011
Ethics Opinion: Settlement Agreements and Restrictions on the Right to Practice
New Hampshire Bar Association Ethics Committee Opinion # 2009-10/6 was made public following the NHBA Board of Governors meeting on June 24, 2011. The following is a brief summary. We encourage readers to read the entire opinion.
Rule References: New Hampshire Rules of Professional Conduct, Rule 1.2, Rule 1.6, Rule 1.7, Rule 1.9, and Rule 5.6.
*Allocation of Authority between Client and Lawyer
*Confidentiality of Information
*Conflicts of Interest
*Duties to Former Clients
*Restrictions on Right to Practice
Settlement agreements afford individuals the opportunity to resolve disputes quickly and with finality in order to avoid the uncertainty and expense of litigation. Settlements typically are private arrangements among disputing parties and, consequently, specific terms often are not public to avoid disclosure of confidential information or facts that would negatively impact a party. During the course of representation and, in particular, during settlement negotiations, an attorney is obligated to abide by the client’s objectives and decisions, subject at all times to the Rules of Professional Conduct. One such rule is Rule 5.6(b), which prohibits an attorney from "offering or making" a settlement agreement that restricts the attorney’s "right to practice."
Does Rule 5.6(b) prevent an attorney representing a defendant in a civil suit from insisting in the settlement of the suit that the attorney representing the plaintiff refrain from disclosing publicly available information about the case?
It would violate New Hampshire Rules of Professional Conduct Rule 5.6(b) for defense counsel to request, as a term of a settlement agreement, that plaintiff’s counsel refrain from disclosing information concerning the suit that is public, if doing so would have the effect of restricting the right of plaintiff’s counsel to practice law or the public’s right to identify and retain qualified legal counsel.