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Bar Association of San Francisco Member Benefits: Publications

BASF Committee Issues Opinion Regarding Settlement Terms

 

By Maria Yuen, Stein Law Group
Legal Ethics Committee Member

 

Imagine this: You are representing plaintiff in a settlement conference of a heavily litigated dental malpractice case against defendant, an oral surgeon. The major terms of the settlement have been worked out. You and defense counsel are writing the terms down on a notepad. You’re feeling pretty good about the terms reached because they are in plaintiff’s favor. Then defense counsel says to you: “Oh, one more thing. The defendant wants included in the settlement agreement that you [plaintiff’s attorney] may not disclose in your resume, your firm’s advertisement materials, or on your firm’s website that you have handled a dental malpractice case against defendant, or that you are experienced in that area of practice. This last one is a deal breaker.”

The issue here is whether defense attorney may demand that the settlement agreement include a terms prohibiting plaintiff’s attorney from (1) mentioning in his/her resume and advertising materials that he/she has handled a particular type of case against defendant, or (2) that he/she is experienced in that particular practice area. BASF’s Legal Ethics Committee has recently published an opinion (Ethics Opinion 2012-1) addressing this very issue.

California Rules of Professional Conduct, Rule 1-500 (“Rule 1-500”) prohibits an attorney from being a party to an agreement, or from proposing an agreement, that restricts the right of an attorney to practice law.

The BASF Ethics Committee concluded that Rule 1-500 prohibits defense attorney from demanding, and plaintiff’s attorney from agreeing to, settlement terms that would prohibit attorney from referencing in his/her resume, advertisement materials and website that he/she has handled a particular type of case against a specific defendant, or that he/she has experience in a particular practice area. The reason is that such settlement terms restricts an attorney’s right to practice law by preventing the attorney from providing potential clients information regarding his/her qualification to handle a specific type of case and litigate against a specific defendant, which is essential to potential clients when making attorney retention decisions. Therefore, to propose settlement terms such as those discussed above is unethical.

The opinion can be found in BASF's Legal Ethics Committee web page.

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