Rule 3.4(f) of the Model Rules prohibits a lawyer from requiring a person other than a lawyer`s client or the client`s parents or employees to voluntarily provide relevant information to another person.3 Therefore, in the context of settlement agreements, a defence lawyer cannot ethically require a claimant to refrain from disclosing or providing potentially relevant information to another person. The explanatory memorandum to the article begins with the recognition that ex parte interviews with witnesses are essential to the effective and efficient functioning of the civil justice system. Promising witnesses do not belong to either party. It is not uncommon for defense efforts to include a lump-sum indemnification clause in the agreement, often for the full amount paid to settle the case. The applicant should never accept such a clause. It is very likely that the IRS will consider the lump sum of damages as clear proof of the value of confidentiality and as definitive proof of the amount of taxable income in the settlement. Equally threatening is the future danger to which the applicant is exposed in the event of involuntary disclosure of the terms of the Regulation. This threat may, in fact, continue the conflictual relationship between the Parties. It is unethical for opposition lawyers to request a prior restriction of the defence lawyer`s right to freedom of expression as a condition of the client`s settlement, as this would affect the lawyer`s advice to current and/or future clients (see ABA Model Rules of Ethics, Rule 5.6(b), tinyurl.com/7j8at7g; Bar of the District of Columbia, Ethics Op. 335, tinyurl.com/8tl4fhr; South Carolina Bar, Ethics Advisory Op. 10-04, tinyurl.com/9p4j3fe).
The best general rule of thumb would be for the plaintiff`s lawyer never to sign a settlement agreement. After all, it is not the lawyer`s settlement agreement, because it is not the lawyer`s claim that is involved in the case. “Notwithstanding other laws, a provision in an Am or after 1. January 2019 settlement contract or agreement that waives the right of either party to testify in any administrative, legislative or judicial proceeding regarding alleged criminal conduct or alleged sexual harassment by the other party to the settlement agreement or agreement or by the agents or employees of the other party if the party is pursuant to a court order, of a subpoena or a written request an administrative authority or the legislator has been obliged or invited to participate in the proceedings, is void and unenforceable. (Emphasis added). Finally, Rule 5.6(b) prohibits lawyers from participating in a settlement agreement that restricts a lawyer`s right to practice that right. It clearly prohibits provisions that expressly prohibit a plaintiff`s lawyer from prosecuting the same defendant again. However, it has been and should continue to be interpreted as covering settlements which have the indirect consequence that the services of a lawyer are not accessible to other persons wishing to assert the same or similar claims. For example, a provision in a settlement agreement prohibiting a plaintiff`s lawyer from using information obtained in the course of the proceedings was found to be contrary to the rule. Such a promise would impair the lawyer`s ability to effectively represent others who wish to sue or prosecute the same defendant.9 To a large extent, such a request tramples on a lawyer`s role as a “court official,” “with a special responsibility for the quality of justice.” 13 Article 3(4)(f) of the model states that `[a]ny lawyer may … ask a person other than a customer to refrain from voluntarily providing relevant information to another party. »; 14 The rule has its roots in the influential and widely accepted formal ethical opinion of the 1935 American Bar Association.15 “It is based on the idea that the fair and effective functioning of the opposite system requires that litigants and their lawyers have an unlimited opportunity to obtain information relevant to their claims, and that the decision, the question of whether they cooperate should be made voluntarily by the witness. When lawyers seek to obstruct voluntary cooperation, they interfere with the proper functioning of the opposing system by making informal interviews with witnesses, an essential tool for preparing cases, inaccessible to their opponents and by forcing them to resort to more expensive and often less efficient [and reliable] means of gathering evidence.
16 A defence lawyer who seeks to prohibit other persons and parties from questioning and communicating with persons with relevant knowledge of the facts and circumstances constitutes an unfair interference with the “truth-seeking” function of our adversarial justice system. The courts have long recognized the value of private witness interviews. They are crucial to obtain an unvarnished version of the facts, free from the intimidation caused by the presence of the opposing lawyer and his client. Defense lawyers may rightly insist in the settlement agreement that a former employee who was in possession of protected or privileged information agrees not to disclose it. This includes legitimate trade secrets if narrowly defined.8 A confidentiality clause is intended to prohibit parties to a settlement from disclosing the terms of the settlement and sometimes more. Privacy raises many issues. This article discusses the perceived and actual problems with using confidentiality clauses in settlement agreements, as well as tips on how to deal with and avoid them. The idea that an alleged victim in an accused`s criminal case could offer assistance in exchange for a favorable civil settlement is also reflected in 98 FEO 19 (which states that a victim`s lawyer may ethically “suggest that [a] [v]ictim agrees to a [favorable] plea agreement in exchange for a confession of [a defendant`s] verdict”). The notice also contains a warning that a victim`s lawyer “cannot imply that the lawyer has the capacity to interfere in the proper administration of justice and criminal proceedings, or that the client will enter into an agreement to falsify evidence.” Defendants may also request a lawyer for the plaintiff who signs and is bound by the confidentiality agreement. The lawyer must remember that the parties sign the settlement agreement and are bound by its terms – the matter belongs to the client and not to the lawyer. However, whether or not confidentiality is granted in a settlement is not the lawyer`s decision. This is the case of the client, and it is his decision to be made with the advice of the lawyer.
“Any person who, knowing the actual commission of a crime, takes money or property of others or a gratuity or reward or a commitment or promises of them in order to aggravate or conceal that crime or to refrain from prosecution or to withhold evidence thereof, except in the cases provided for by law where offences may be jeopardized by judicial leave, shall be punished as follows:. . . (emphasis added) 10 D.C. Bar legal Ethics Comm. Operation No. 335 (2006), available from www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion335.cfm. . . .