New Ohio Attorney Advisory Opinion issued today: a settlement agreement cannot restrict a lawyer's ability to practice law.
The Ohio Board of Professional Conduct issued Advisory Opinion 2019-04 today, addressing practice restrictions in proposed settlement agreements. The Opinion states generally that a “lawyer may not offer or agree to a direct or indirect restriction on the lawyer’s right to practice as part of a proposed settlement agreement.”
The Board provided specific guidance on this point. As a condition of settling a client’s case, a lawyer may not, among other things:
- agree to restrict his or her own practice of law or propose that opposing counsel do so;
- include a settlement provision requiring a lawyer to disclose all clients with similar claims against the defendant;
- agree not to solicit new clients with similar claims against the defendant; or
- include a settlement provision that requires the lawyers to keep all information in the lawsuit confidential (this does not preclude a requirement that the lawyers keep the terms and conditions of the settlement agreement or its existence confidential, with the exception of those facts that are available in a court record).
The Opinion also addressed several other issues, including when a non-disparagement clause in a settlement agreement is too restrictive on an lawyer’s right to practice and how a lawyer should handle a settlement situation in which the client wants to include one of the above restrictive conditions.
For more questions about the Opinion or attorney ethics in general, contact the author or any member of Montgomery Jonson’s Ethics Advice and Disciplinary Defense team.