Secret Settlements – Our Stand
Potential clients of Patrick Malone & Associates may want to know our stand on secrecy in settlement agreements of lawsuits. We oppose these provisions and work hard to avoid having them imposed on our clients by defendants who want to hide their wrongdoing from public scrutiny. Our reasons:
- The civil justice system exists to help make the world safer and to prevent injuries. Many of our clients come to us saying, "It's not so much the money. I just don't want this to happen to someone else." Secrecy provisions in settlement agreements undercut this important goal of the civil justice system, because they don't let lawyers like us and our clients talk about the safety lessons we learned from a case. Secrecy also lets the same thing happen to other victims when the problem gets buried rather than fixed. Witness the Ford Explorer rollover cases and the clergy sex abuse scandals.
- Confidentiality clauses in settlement agreements make it harder for future injury victims to find qualified lawyers to represent them, because the lawyers cannot talk about specific cases they have experience with. For that reason, several ethics committees of bar associations, such as the D.C. Bar, have issued ethics opinions saying that confidentiality agreements are unethical when they have this effect. See the D.C. Bar ethics opinion on secret settlements here.
- Confidentiality language also makes it harder for future injury victims to prosecute their cases, because the secrecy language prevents prior victims from coming forward and sharing their stories and specific evidence they turned up in their cases. This is another reason that such agreements have come under ethics fire.
- Injury victims who agree under pressure to confidential settlements sometimes live to regret that. It means they can never openly discuss what happened, and if they inadvertently violate the secrecy agreement, a vengeful defendant can pursue them.
We make one exception - if secrecy benefits an injured person who wants to keep the amount of a settlement from prying eyes, or who wants to keep embarrassing facts about them quiet, then we will agree to confidentiality of specific terms, such as the dollar amount or the name of the injured client. But we don't agree to keep the facts of the case or the name of the defendant confidential.
Patrick Malone wrote an article for fellow attorneys on unethical secret settlements , which you can read here .
Resources for attorneys: Click here to see a sample letter our firm sends in advance of mediation sessions where we spell out what we will and won't agree to concerning confidentiality.