Belated congratulations to Jon Bauer on the publication of his article Buying Witness Silence: Evidence-Suppressing Settlements and Lawyers' Ethics, 87 Oregon L. Rev. 481-580 (2008). A favorable account of the piece, appended below, also appeared this July in the Connecticut Law Tribune.
How can one not admire a piece of scholarship that originates in the author's reflection subsequent to a case that made him uncomfortable? In this instance, Jon worked with clinic students to secure a settlement agreement for a plaintiff client in which the defendant insisted that the clinic's client enter into a secrecy agreement. This agreement later prevented the client from cooperating with a fellow employee in a subsequent legal dispute with the employer who had insisted upon the settlement. Who wouldn't be troubled at having helped produce this outcome?
Of course, such secrecy agreements are often used, and lawyers are almost always involved in drafting and negotiating them. Moreover, Jon's typically diligent research revealed that the ethics of such agreements had been fully analyzed, and most commentators had concluded that lawyers were (with rare exceptions) within ethical bounds in participating in such settlements.
Jon was not satisfied with such analysis, however, and for good and interesting reasons. Everyone understands the tension between the lawyer's duty zealously to represent her client and the broader duty not to participate in or conceal client conduct that poses a threat of bodily harm to others. Accordingly, most commentators had analyzed secrecy agreements within settlements through this lens. They had concluded that in most cases defendants' lawyers seeking promises of secrecy from plaintiffs are not necessarily posing such grave risks. It would have been an easy article for Jon to write suggesting that those reviewing existing law were underestimating the risks posed by secrecy so that drafting or negotiating such secrecy agreements already runs afoul of the lawyer's duties to third parties. It would have been even easier to write an article urging an amendment to the ethics rules that would prohibit attorneys from participating in secrecy agreements.
Jon took a much more ambitious path. He offers a whole new perspective to the problem. As he presents it, the problem with lawyers helping to draft secrecy agreements is that in doing so lawyers are violating their duties as officers of the court. Nor is this an abstract concern. Jon argues that a careful look at ethical rules already on the books makes clear that lawyers must be quite circumspect about participating in such agreements. The rule he points to most extensively is ABA Model Rule 3.4(f) a text of which appears below.
" A lawyer shall not
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
On the face of it, such language seems to pose precisely the ethical bar that Jon suggests. Yet Jon's argument runs straight into the headwind that no one has quite seen things this way before. The naive reader may quibble that Rule 3.4(f) is more likely aimed simply at preventing lawyers in a particular dispute from shutting down witnesses in that dispute. Why else use the phrase "information to another party"? But Jon explores the history to reveal that this initial reading is not supported by the rule's origins, and he limits his reading to secrecy agreements that will shut down "parties" in potential future disputes. In the end, even readers who are not convinced come away wondering just quite how they might rebut the very strong case Jon makes.
Of course, readers may also leave the piece uncertain about just quite how far Jon's reading might extend. If a law school professor invited someone to give a guest lecture and the potential speaker declined, would it be unethical to ask the invited guest to keep the invitation quiet? The professor might want the next invitee to feel special; yet down the road someone might want to show a pattern and practice of discrimination in the choice of speakers. Jon does tackle many other side issues, including what issues might properly be kept secret (size of settlement, trade secrets, etc.) and another rule that might be violated even by lawyers who help their own clients to sign secrecy agreements. Model Rule 8.4(d) declares it to be professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice."
Above all, Jon's key insight is to place this entire topic within the rubric of the lawyer's rule as "officer of the court" rather than within the framework of balancing client interests against third parties. Of course, there is the risk in stretching this role into "officers of the courts" and a clear tension with the goals of the adversary system. But that's what makes the topic so interesting.
As noted, Jon's extensive and illuminating treatment of the topic appears in the Oregon Law Review. I urge everyone to read it. Bravo. JP