I. THE THESIS AND THE RULE
Plaintiffs' lawyers, at least the best ones, are believers in their causes. They're convinced that part of their job is to expose cars that don't steer right or blow up under certain conditions, drugs with dangerous side effects, or clergymen and scoutmasters who molest kids. Defense lawyers, at least the best ones, are dedicated to bringing justice to their clients. They're committed to beating back frivolous claims and plaintiffs with victim complexes, but when legitimate cases come along, they try to settle them quickly and fairly-and in a way that won't create more innocent victims.
Unfortunately, the laws in the vast majority of states combine with the ethics rules in every state to prevent lawyers on both sides from achieving these goals. Because the rules of ethics generally require putting the interests of the client ahead of those of society, lawyers are bound to settle cases in ways which serve the needs of the specific clients while potentially harming the interests of society as a whole. Unless counsel is operating in one of the very few states with strong "sunshine in litigation" laws, there is little that can be done when the defendant demands, and the plaintiff accepts, secrecy as a condition of resolving a case.
It is for this reason that I propose that American Bar Association Model Rule of Professional Conduct 3.2 be amended to add section (B), as follows (new portions of the rule are italicized):
RULE 3.2 EXPEDITING LITIGATION AND LIMITATIONS
(A) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
(B) A lawyer shall not participate in offering or making an agreement, whether in connection with a lawsuit or otherwise, to prevent or restrict the availability to the public of information that the lawyer reasonably believes directly concerns a substantial danger to the public health or safety, or to the health or safety of any particular individual(s).
1. Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.
2. Some settlements have been facilitated by agreements to limit the public's access to information obtained both by investigation and through the discovery process. However, the public's interest in being free from substantial dangers to health and safety requires that no agreement that prevents disclosure to the public of information that directly affects that health and safety may be permitted. This includes agreements or stipulations to protective orders that would prevent the disclosure of such information. It also precludes a lawyer seeking discovery from concurring in efforts to seek such orders where the discovery sought is reasonably likely to include information covered by subsection (B) of the rule. However, in the event a court enters a lawful and final protective order without the parties' agreement thereto, subsection (B) shall not require the disclosure of the information subject to that order.
3. Subsection (B) does not require the disclosure of the amount of any settlement. Further, in the event of a danger to any particular individual(s) under Subsection (B), the rule is intended to require only that the availability of information about the danger not be restricted from any persons reasonably likely to be affected, and from any governmental regulatory or oversight agencies that would have a substantial interest in that danger. In such instances, the rule is not intended to permit disclosure to persons not affected by the dangers.
Drafter's (Author's) Note:
The language in the first phrase of part (B) is taken from that used in Rule 5.6, on restricting a lawyer's practice. The language "reasonably believes" parallels that used in Rule 1.6. The use of the phrase "substantial danger to the public health or safety," rather than the more restrictive language of Rule 1.6 ("imminent death or substantial bodily harm") is used here because the matters disclosed in the discovery process are not ordinarily protected by confidentiality under Rule 1.6, and also because the use of the term "imminent" is not consistent with the practical exigencies of dangers which may be inevitable but have a longer than imminent incubation period.
This is the first published draft of this rule. My intention here is neither to defend the exact wording of the draft, nor to suggest that this is the only way, or even the best way, to craft a rule. Rather, it is my hope that this draft might serve as a starting point for discussion. The purpose of this paper - and the presentation I gave at Hofstra-is to make three points: first, that secrecy in settlements is an important problem that carries with it a significant potential of danger to the public; second, that regulatory intervention is necessary to prevent this harm; and third, that "sunshine" legislation, while undoubtedly a step in the right direction, is not an adequate remedy to protect legitimate public interests.
Zitrin, Richard A.
"The Case against Secret Settlements (Or, What You Don't Know Can Hurt You),"
Journal of the Institute for the Study of Legal Ethics: Vol. 2
, Article 12.
Available at: https://scholarlycommons.law.hofstra.edu/jisle/vol2/iss1/12