September 19, 2000
ABA Commission on Evaluation of the
Rules of Professional Conduct
541 No. Fairbanks Street, 14th Floor
Chicago, IL 60611
Re: Comment on Rules 1.7 and 1.4
Dear Chief Justice Veasey, members of the Commission, and Professor Moore:
How many more Firestones will it take. See today's law.com articles on how secret settlements forced upon plaintiffs by Firestone/Bridgestone led to the deaths of future victims of blown-out tires.
In 1998, at the second Hofstra symposium, I proposed the ABA rule reprinted below. I enumerated it as 3.2(B), but it could be placed elsewhere. See The Case Against Secret Settlements (Or What You Dont Know Can Hurt You), 2 J. Inst. for Study of Legal Ethics 115 (1999). At this year's Pound Forum for state court appellate judges, the topic was secrecy and there was great puzzlement about why the ABA Commission had not shown more interest in an ethics rule. While court rules have dealt with this to an extent, the one rule that covers unfiled discovery has been narrowly interpreted, leaving lawyers to fend for themselves, trapped by their obligations to individual clients regardless of societal consequences.
It is time to revisit this issue. Last week there was a front page LA Times article and a Newark Star Ledger editorial decrying the practice. I understand that today (it may be later this week) there is an editorial in the USA Today. The public wants to know why lawyers are allowed to do this kind of thing.
Enclosed is a wordperfect file with one of today's law.com articles that will appear in Monday's National Law Journal. Others are available on line. Jim Rooks of The Pound Institute, firstname.lastname@example.org gathered an extensive bibliography on secret settlements for the appellate judges which the Commission could find valuable.
One might ask what about enforcement? The same question can be asked of many other rules. If there were such a rule, at least those lawyers -- I suspect it would soon become the vast majority -- who did not want to participate in a Firestone secrecy agreement would point to the rule and just say "no."
It's time for the Commission needs seriously to reconsider this issue and just say "yes."
Richard A. Zitrin
RULE 3.2 EXPEDITING LITIGATION
(A) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
(B) A lawyer shall not participate in offering or making an agreement, whether in connection with a lawsuit or otherwise, to prevent or restrict the availability to the public of information that the lawyer reasonably believes directly concerns a substantial danger to the public health or safety, or to the health or safety of any particular individual(s).
Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.
Some settlements have been facilitated by agreements to limit the publics access to information obtained both by investigation and through the discovery process. However, the publics interest in being free from substantial dangers to health and safety requires that no agreement that prevents disclosure to the public of information that directly affects that health and safety may be permitted. This includes agreements or stipulations to protective orders that would prevent the disclosure of such information. It also precludes a lawyer seeking discovery from concurring in efforts to seek such orders where the discovery sought is reasonably likely to include information covered by subsection (B) of the rule. However, in the event a court enters a lawful and final protective order without the parties agreement thereto, subsection (B) shall not require the disclosure of the information subject to that order.
Subsection (B) does not require the disclosure of the amount of any settlement. Further, in the event of a danger to any particular individual(s) under Subsection (B), the rule is intended to require only that the availability of information about the danger not be restricted from any persons reasonably likely to be affected, and from any governmental regulatory or oversight agencies that would have a substantial interest in that danger. In such instances, the rule is not intended to limit disclosure to persons not affected by the dangers.
Drafters (Authors) Note:
The language in the first phrase of part (B) is taken from that used in Rule 5.6, on restricting a lawyers practice. The language reasonably believes parallels that used in Rule 1.6. The use of the phrase substantial danger to the public health or safety, rather than the more restrictive language of Rule 1.6 ( imminent death or substantial bodily harm ) is used here because the matters disclosed in the discovery process are not ordinarily protected by confidentiality under Rule 1.6, and also because the use of the term imminent is not consistent with the practical exigencies of dangers which may be inevitable but have a longer than imminent incubation period.