Advisory Opinion:
1067
Year Issued:
1987
RPC(s):
RPC 4.4; 5.6(b)
Subject:
Threat by lawyer to sue opposing counsel for calling witness with whom lawyer previously signed settlement agreement containing confidentiality provision
The Committee considered your inquiry concerning the threat by another lawyer to sue you personally if you called a witness to testify after you and that witness in previous litigation had signed a settlement agreement which included a "confidentiality" provision. While the question of the enforceability of the agreement is a legal question which the Committee cannot address, the Committee did want to point out that such an agreement, if in fact it would act to limit a lawyer's right to call any witness in future litigation, would appear to violate RPC 5.6(b) which prohibits lawyers from making agreements restricting a lawyer's right to practice as part of a settlement of a controversy between private parties. Regarding the threat, the Committee was of the opinion that if the other lawyer did believe that the contract was enforceable and that you were threatening to breach the agreement, and it was in fact his client's intent to bring suit if it were breached, then there would be nothing improper in communicating that fact to you. However, if such a threat were merely being used as a trial tactic, then it would appear that such conduct would violate RPC 4.4, which prohibits a lawyer from using means that have no substantial purpose other than to embarrass, delay, or burden a third person.
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