Multistate Professional Responsibility Examination (MPRE)Litigation and Other Forms of AdvocacyMedium
A lawyer represents a client in a civil personal injury case. During settlement negotiations, the opposing counsel makes an offer conditioned on the client agreeing to keep the terms of the settlement confidential, even from other potential plaintiffs in similar cases against the same defendant. The lawyer believes the settlement terms are favorable for their client. Is it ethically permissible for the lawyer to agree to this confidentiality clause?
- AYes, if the client fully understands and consents to the confidentiality agreement.
- BYes, but only if the lawyer obtains a court order approving the confidentiality clause.
- CNo, as it would violate the lawyer's duty to the public to expose negligent conduct.
- DNo, because such an agreement would restrict the lawyer's ability to represent future clients.
Show answer & explanationAnswer & explanation
Correct answer: D. No, because such an agreement would restrict the lawyer's ability to represent future clients.
Model Rule 5.6(b) prohibits a lawyer from participating in offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy. This includes agreements that prevent a lawyer from using information gained in a case to assist future clients, even if the current client consents.
Why the other options are wrong
- A. Client consent alone is insufficient if the agreement restricts the lawyer's future practice, which is prohibited by Rule 5.6(b).
- B. A court order would not override the ethical prohibition against restricting a lawyer's right to practice, as outlined in Rule 5.6(b).
- C. While public interest is a consideration, the direct ethical prohibition here is against restricting the lawyer's future practice, not a general duty to expose negligence.
Restrictions on Practice
A lawyer shall not participate in offering or making an employment agreement or a settlement agreement that restricts the lawyer's right to practice after termination of the relationship.
- Prohibits agreements restricting a lawyer's future practice.
- Applies to settlement agreements.
- Aims to ensure clients can choose lawyers freely and lawyers can use their experience.
Memory trick: Don't tie your future practice, even for a client's gain.