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Ohio Board Advises Against Settlement Terms

A party defending litigation might propose a settlement term preventing the plaintiff’s lawyer from later communicating details about the litigation in his or her law firm marketing or in discussions with future clients. Obviously, the objective of such a settlement term is to limit the plaintiff’s lawyer’s ability to attract new clients based on the lawyer’s experience against the particular defendant. See, Prof. Cond. R. 5.6(b).

In Opinion 2018-3 (June 8, 2018), the Board of Professional Conduct opined that “[r]equiring a lawyer to limit his or her future communication of information contained in court records, including the lawyer’s participation in a case, serves as a restriction on their right to practice law and advertise their services prohibited by Prof. Cond. R. 5.6(b).” Although a lawyer is required to follow his or her client’s decision to accept a settlement offer, the lawyer may not violate another ethics rule when doing so. See, Prof. Cond. R. 1.2(a). Accordingly, if the client insists on accepting the agreement with the restrictive provision, the lawyer is obligated to withdraw from representing the client. See, Prof. Cond. R. 1.16(a) (1).

While a lawyer must obtain the consent of a client whose name appears in the style of a case before it is used in the lawyer’s marketing or advertising, aside from client confidentiality requirements, nothing requires a lawyer to refrain from using his or her experience to help future clients who chose to employ that lawyer. See, Prof. Cond. R. 1.6.

The Board recommends that the holding in Opinion 2018-3 be applied prospectively.