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.