Tuesday, June 25, 2019

Settled Law

A staff report on the web page of the Ohio Supreme Court

The Board of Professional Conduct today issued an advisory opinion concerning restrictions on a lawyer’s right to practice law contained in settlement agreements.

Advisory Opinion 2019-4 reviews four clauses offered in settlement agreements that impermissibly place restrictions on a plaintiff’s lawyer from bringing additional clients with similar claims against the same defendants in the future.

In the opinion, the board reminds lawyers that the Rules of Professional Conduct prohibit a lawyer from making or offering terms in an agreement that limits a lawyer’s right to practice law. The board found that three of the four clauses it reviewed potentially violate the Rules because they give significantly less discretion to a lawyer to pursue future claims on behalf of clients than a lawyer not subject to the same agreement.

The clauses reviewed by the board require the lawyer to not solicit new clients, to affirm that he or she does not have comparable clients with similar claims, and to keep all information obtained during litigation confidential.

The board opined that a fourth clause prohibiting the public disparagement of a defendant was permissible, as long as it was narrowly drafted and did not prevent a lawyer from bringing a new complaint against the same defendants or advertising prior litigation experience against the same defendant.

The board also advises lawyers that if a client insists on the placement of a prohibited clause in a settlement agreement the lawyer must withdraw from the representation to prevent a violation of the Rules of Professional Conduct.

(Mike Frisch)


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