March 31, 2015 Articles

Confidentiality Clauses in Settlement Offers under Rules 5.6 and 3.4

The Indiana Legal Ethics Committee has taken a position contrary to the position taken by several other jurisdictions.

By Larry Fox and Jenny Gu

The Indiana State Bar Association’s Legal Ethics Committee recently released an opinion addressing the controversial issue of confidentiality provisions in settlement offers. Ind. State Bar Ass’n Legal Ethics Comm., Op. 1 of 2014. The committee concluded that while a settlement provision limiting a lawyer’s ability to bring a subsequent case against a defendant would violate Rule 5.6(b) of the Indiana Rules of Professional Conduct, a narrower provision that restricts a lawyer’s freedom to name the particular defendant he or she settled against in general promotional materials would be permissible. The committee’s position is contrary to that of several other jurisdictions tackling the same issue, and this position may compromise the goals of attorney autonomy and client rights that the Rules of Professional Conduct seek to protect.

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