It was my policy over my 50 years of representing plaintiffs to refuse to agree to any form of confidentiality as an imposed requirement of settlement  by a  defendant. My policy was that clients were free to keep the information personally confidential and from media or public disclosure if they wanted to do so, but the defendant could not require it as a condition of settlement. In addition, my policy for accepting a case for a client was that I was not bound by confidentiality to share information particularly with other lawyers or clients with similar cases.

The primary reason for my policy was that these confidentiality clauses violate one of the basic reasons for our tort system which is to deter others from harmful conduct. Deterring future harmful conduct is at the core of our tort system along with providing a just remedy for the harm done. Keeping secrets, the harm done, and the justice obtained perpetuates more harmful conduct to innocent victims. Clients should have the choice and the right to talk about what happened to them and how justice was done. Lawyers should be free to discuss what they learned from other cases and share information to help prevent it happening over again. In too many instances, lawyers become a part of a conspiracy of silence about harmful conduct when they consent to confidentiality as a condition of settlement.

This was my practice regarding confidentiality as condition of settlement:

First, I carefully discussed the policy with the client at the initial interview before agreeing to represent the client. My experience was that if the reason was explained fully, clients would be fully in agreement. I made it clear I wouldn’t accept the case unless they agreed to refuse a demand of confidentiality. I make it clear to the client that if the client wanted confidentiality for themselves, I would, of course,  honor that, but only when it was the client’s choice and not the insurance company or defendant’s legal requirement.

One of the reasons I think clients have agreed to this is that I explained why confidentiality is evil and has the ability to hurt other people. By not keeping it a secret, the defendant was motivated to change their harmful behavior. But, by agreeing to keep it secret there was no motivation for change from the defendant. people who might have been warned are not aware of the problem. I discussed the fact that other lawyers who could benefit from our information are denied access to it. Furthermore, if you keep the amount of settlement secret, other lawyers and their clients with similar or the same claim won’t be aware of how much the defendant is willing to pay in such cases and so on.

Second, I always had the client sign an agreement which fully set out the policy and gave us the right to withdraw as their attorney if they failed to comply. The agreement had a clause like this:

Clients have been fully informed by the attorneys that should the defendant in the case offer to settle only on condition that the settlement or facts of the case will be kept secret, the attorneys will not consent to the settlement. The clients fully agree and  have authorized the attorneys to reject offers which are conditioned upon such secrecy demands.

Third, in addition, I always made clear, in writing, to the mediator and defendant attorneys what my policy was in that regard before the mediation was scheduled. I wanted them to know it was  a condition of mediation for me. Our mediation letter had language like this:

“In addition, if settlement is reached we want you to know that it is our further general settlement policy that we are unwilling to agree to any form of confidential requirement regarding any aspect of settlement reached in this case.

Fourth, at the mediation I would refuse to discuss any aspect confidentiality unless there was a reasonable chance of a money settlement. Why waste time on discussing this issue when the primary question for me was whether there was a reasonable chance of settlement.

Lastly, I would not agree to settlement at mediation until a memorandum outlining the agreement was signed before I left the mediation. I brought a form to the mediation with blanks and one clause read:

“Nothing shall be confidential regarding this settlement:  It is agreed and understood that the final release or settlement documents shall contain  no language or provision relating to a confidentiality agreement which are not specially set out in this Agreement summary.”

As to a discussion about confidentiality, I made clear my client was in full agreement. I took the position that if you don’t agree with our position on no confidentiality I will try the case and I guarantee there will be significantly more publicity from the trial than otherwise. In addition, it’s going to cost your client a lot of money in defense costs plus verdict. Was it worth gambling on trial rather than settlement?

However, while I would not agree to the required confidentiality, clients had to the right to elect to keep the information personally confidential, or  from media or public disclosure. However. I was always entitled to share the information with other lawyers even if the client wanted no publicity about it. In some cases I have agreed to a voluntary non-binding hand shake agreement not to use the names of defense lawyers or defendant in a media release or other variations,  but always with the understanding it was a non-legal binding arrangement which did not prevent full disclosure to others, particularly clients and lawyers who might have similar cases.

There are some very good plaintiff lawyers who continue to agree to confidentiality in order to settle a case. Over the years there was significant disagreement about my policy from other plaintiff lawyers especially in the beginning. These disagreements among plaintiff lawyers exist today.  The usual objection is that we are obligated to put the client’s interests first and this policy could prevent settlement of the client’s case. The lawyer’s duty is to do what is best for the client and not act out of concern over costs they have advanced, or the fee involved.  I found clients supported my policy when I explained how it would help prevent others from the same harm they suffered and promoted justice.

I found the great majority of defendants abandoned asking me for confidentiality when they realized I was deadly serious, and they faced a trial. I’ve been offered significant additional settlement amounts in exchange for confidentiality, but the reality is that if  the defendant was willing to pay an amount for confidentiality than they were willing to add it to the total offer anyway

 Mediators learned to stop advising me why I should change the policy and began to tell defendants at mediation I was deadly serious about it. After a while it became a non-issue that was simply accepted by mediators and defendants.


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