Advisory Opinion:
2125
Year Issued:
2006
RPC(s):
RPC 5.6(b)
Subject:
Clause in settlement agreement preventing plaintiff`s attorney from filing additional unrelated suits against defendant on behalf of currently unidentified plaintiffs
Facts
The Inquirer asks whether a clause may be included in a settlement agreement which prevents plaintiff’s attorney from filing additional unrelated suits on behalf of currently unidentified plaintiffs against the same defendant.
Response
Background
In the course of settlement negotiations defendant’s attorney suggests to plaintiff’s attorney that a clause be included in a settlement agreement which prevents plaintiff’s attorney from filing additional unrelated suits on behalf of currently unidentified plaintiffs against the same defendant.
General rule
The rule on point is RPC 5.6 (b). That rule states:
“a lawyer shall not participate in offering or making:…(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”
In Washington State Bar Association informal opinion number 1850 (1999) a very similar issue was addressed. In that informal opinion, the purpose for and criticism of RPC 5.6 (b) was summarized with a quotation:
“ ‘The purported purpose of this heavily criticized rule is to make legal services available to more people. But another possible purpose for the rule is to prevent the client and the third party from opportunistically taking advantage of the lawyer by depriving the lawyer of one of the ordinary benefits of representation – future business – at a time when the lawyer might be in a vulnerable bargaining position.’
G. Cohen, “When Law and Economics Met Professional Responsibility, “ 67 Fordham L. Rev. 273, 283 (1998).”
The informal opinion also deals with the plaintiff attorney’s non-solicitation of future clients.
It states:
“RPC 5.6 precludes a settlement offer or agreement that would restrain plaintiff’s attorney from lawful solicitation of future clients in similar litigation involving the subject matter of the initial case. However, as discussed below, the use of information by the attorney from the prior case may be restricted.”
Conclusion
It does constitute a violation of Washington State RPC 5.6 (b) for plaintiff’s attorney to enter into a settlement agreement which restricts or prevents that attorney from filing additional unrelated suits on behalf of currently unidentified plaintiffs against the same defendant. The Committee is of the opinion that neither plaintiff nor defendant should enter into such a settlement agreement based on RPC 5.6 (b) and informal opinion 1850.
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