The media are filled with news about sexual harassment claims, the most recent being actor Bill Cosby’s conviction for sexual assault. Washington Post, April 27, 2018. In many of these cases lawyers for the alleged harassers are involved in negotiating settlements of these claims with the victims and their lawyers.
Recently two settlement agreement involving Fox News Host, Bill O’Reilly, have become public. The accusers in these agreements were Andrea Mackris, and Rebecca Diamond. Counsel for Ms. Mackris and Ms. Diamond were parties to these agreements, but the obligations of counsel under these agreements are strikingly different.
Ms. Mackris’ counsel agreed that “they will not represent any person at any time in any action or proceeding against Fox News [or related entities] arising out of actual or alleged sexual harassment issues.” This provision appears to be a clear violation. See NY Rule of Prof. Cond 5.6(a)(2), which is based on ABA Model Rule 5.6(b). In addition, Mackris’s lawyers agreed to become advisers to Mr. O’Reilly “regarding sexual harassment matters.” Such consulting agreements between plaintiff’s counsel and defendants to protect defendants from subsequent litigation are of doubtful validity. Fla. Bar v. St. Louis, 967 So. 2d 108, 125 (Fla. 2007).
By contrast, the agreement between O’Reilly and Diamond’s lawyers appears to be proper. Diamond’s lawyers were not parties to the entire agreement, only to three provisions (4 on confidentiality, 6 on counsel’s agreement, and 7 on arbitration). Paragraph 4 requires Diamond’s counsel to maintain the “strictest confidentiality.” The exact meaning of this phrase is unclear. It could narrowly mean that the lawyer must adhere to the duty of confidentiality as defined in Rule 1.6, or it could more broadly mean nondisclosure unless disclosure is mandatory – for example, required by law — even if the disclosure would be ethically permissible under one of the discretionary exceptions to Rule 1.6. The narrow interpretation of the agreement is clearly proper ethically. Lawyers have an obligation of confidentiality to their clients, and a client may contractually agree not to consent to a lawyer’s disclosure of confidential information. See ABA Formal Opinion 00-417. However, since one of the fundamental purposes of the settlement agreement is confidentiality and nondisclosure, the latter interpretation is probably correct. Is it ethical for a lawyer to contractually agree to give up the discretionary exceptions to confidentiality under Rule 1.6(b)? Probably so. If the public policy in favor of disclosure were strong enough, the exceptions would probably have been made mandatory.
The Agreement requires Diamond and her counsel to return all materials related to any conversation she ever had with O’Reilly (“Personal Materials”). O’Reilly or Fox News might have preservation requirements regarding this material, but it does not appear to be unethical for Diamond’s lawyers to deliver such material to them. Paragraph 6 of the agreement is a representation and warranty by Diamond’s counsel that they “do not currently represent any other sexual harassment claimant against O’Reilly or Fox News.” This paragraph appears to be proper because it does not restrict the future representation of Diamond’s lawyers in violation of Rule 5.6. However, paragraph 6 contains one questionable provision on “use” of confidential information. Counsel represent and warrant that they will not use and information or names obtained in the representation of Diamond in any future representation “unless such information or names are obtained exclusively through other means.” ABA Formal Opinion 00-417 provides that a lawyer may not ethically agree not to “use” confidential information because a prohibition on use effectively amounts to a prohibition on the right to practice in violation of Rule 5.6. However, the prohibition in Diamond’s agreement is not a total prohibition on use so although questionable it might be ethically permissible.
For more information and for ethics advice about settlements, contact Nathan M. Crystal