November 12, 2012 Articles

Settlement Agreements, Restrictions on Right to Practice Law

Any settlement provision that potentially affects an attorney's ability to practice or represent clients must be carefully drafted to comply with Rule 5.6(b)

by Terri L. Mascherin and Michael L. Cebula

While settling one lawsuit, a defendant may simultaneously be facing several similar lawsuits or may anticipate facing several similar lawsuits in the future, all brought by the same plaintiffs' attorney. The defendant therefore may wish to include a provision in the settlement agreement limiting that attorney's ability to bring lawsuits against the defendant in the future. Such circumstances implicate Rule of Professional Conduct 5.6(b).

Direct Restrictions on a Lawyer's Ability to Practice Law
Rule 5.6(b) states that a lawyer shall not participate "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." R. Prof'l Conduct 5.6(b) [membership required]. Therefore, as part of settling a client's case, a lawyer may not agree to restrict his or her own practice of law, or propose that opposing counsel restrict a practice. See, e.g., ABA Eth. Op. 00-417 (2000); ABA Eth. Op. 95-394 (1995) [membership required]. For example, a settlement provision stating that plaintiff's counsel "agrees not to represent any person or entity in any related litigation or dispute against [the defendant] or its affiliated entities" plainly violates Rule 5.6(b).

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