You May Be Able to Talk After All—Ohio Board of Professional Conduct Advises Lawyers on Settlement Agreement Confidentiality

On June 8, 2018, the Ohio Board of Professional Conduct issued Advisory Opinion 2018-3 regarding restrictions that can be imposed on a lawyer within the context of confidentiality provisions often included in settlement agreements. It is common practice in Ohio, and in jurisdictions across the country, for parties to enter into a non-disclosure agreement as part of a settlement. Under such an agreement, parties, and their lawyers, are usually prohibited from disclosing the terms and conditions of the agreement, including the amount paid to a plaintiff.  However, parties sometimes try to expand those provisions to prohibit counsel from disclosing the facts of the case or the claims or legal theories asserted in the case, often for a public announcement or advertisement.  
The Board concluded that, while it is still permissible to keep a settlement’s terms confidential, lawyers are no longer allowed to participate in settlement negotiations that could prohibit a lawyer’s ability to disclose any information contained in a court’s public record, including the names of the parties and lawyers involved, allegations, or defenses. Moreover, a lawyer may not abide by a client’s decision to include such a prohibition, and must withdraw from the representation, if a client persists. The Board reasoned that prohibiting a lawyer’s ability to disclose information in the court record amounts to a restriction on the lawyer’s right to practice in violation of Ohio Rule of Professional Conduct 5.6(b). While this opinion certainly affects lawyers, it also affects their clients’ ability to determine what can and cannot become part of a non-disclosure agreement upon case settlement.
The Supreme Court has indicated that it will be reviewing the advisory opinion and may propose amendments to the Rules of Professional Conduct in response to the opinion.

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