By David Peel
It is not all that unusual in some of my larger cases to have language about confidentiality proposed to be included within the settlement agreement.
However, there are some items that may sometimes appear in a confidential settlement agreement:
A settlement agreement should never restrict the attorney’s ability to practice law. This would be a restriction that is impermissible under our professional rules. It is for this reason that covenants not to compete are not enforceable against lawyers either. The public has a right of access to counsel. Under the ethical rules, these are not enforceable even if they are restricted. The same goes for a settlement agreement. I had a case against a company one time and they asked if they could pay me extra not to sue them again in the future. Obviously, I was not going to agree to such a thing.
A settlement agreement may require the plaintiff to pay the medical bills and settle the liens that may be outstanding, but a settlement agreement must never require the lawyer himself or herself, to sign as a personal guarantee of that or anything else. The lawyer can certify something happened–but cannot be held to account because of a conflict between the clients and also serve as a personal guarantee which is not allowed.
A settlement agreement may require a party to keep confidential the terms of the resolution–subject to exception such as a court order, tax reporting, or other reasonable restrictions.
A settlement agreement may require that the attorney not report publicly the terms of the settlement and the identification of its claims and parties. That is why we will see on my verdict list that I sometimes have a listing that says something like confidential settlement for over $850,000 against a trucking firm.” That way I’m not identifying the exact terms, nor am I identifying either party.
It is very important that all the issues be resolved before a settlement agreement is signed. They will have language that indicates that this is a full and final settlement and all terms or listed within it. They will say that no oral agreements or side agreements for any existence or are enforceable.
Recently I reviewed a settlement offer on a case that a person had. Less than a month later we settled for 10 times that original amount. While every case is different, and is dependent upon its individual facts, it is always a good idea to enter into settlement agreements very carefully.
Peel seeks justice for those injured in car accidents, medical malpractice, and nursing homes. He often addresses churches, clubs and groups without charge. Peel may be reached through PeelLawFirm.com wherein other articles may be accessed.
By David Peel