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GAG ORDERS IN DIVORCE SETTLEMENTS MAY VIOLATE ETHICS RULES

The ABA Litigation Section recently raised this question. Provisions in an agreement settling a divorce case could be unenforceable if they prohibit disclosure of already-public information about the case, and may thus may be unenforceable, according to District of Columbia Formal Opinion 335. The ABA’s Litigation News reported this holding of the D.C. Bar Legal Ethics Committee based on D.C. Rule of Professional Conduct 5.6(b), and reviewed other bars’ holdings on this point. The article, in the March issue of Litigation News, points out that New York State and Los Angeles Bar Associations have issued substantially similar opinions. The agreement in question prohibited disclosing not just the terms of the settlement, but the fact that the case had been settled, the defendant’s identity, and the allegations in the Complaint. That Complaint had been publicly filed and had never been sealed. The problem is that imposing an impermissible restraint on a lawyer’s right to practice can violate a client’s right to make a reasoned choice of counsel based on information about the lawyer’s experience in such cases. According to the D.C. Bar’s view, the fact that a lawyer has represented a certain client is not a client confidence or secret in a divorce case, and lawyers can and should share that information. The New York State Bar Association’s Formal Opinion 730 and the Los Angeles County Bar Association’s Formal Opinion No. 512 echoed the D.C. Bar’s reasoning, but a federal court’s ruling in Sealed Party v. Sealed Party (S.D. Tx. May 4, 2006) held that a lawyer’s obligation to keep client confidences may even extend to information that is publicly available, but not generally known.

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