Settlement Forcing Work Product Handover May Be Taboo

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By Joan C. Rogers

Oct. 17 — A lawyer can’t ethically demand or accept a provision requiring turnover of work product materials as a part of a client’s settlement agreement if that would hamper an attorney’s ability to represent other clients, according to a recent opinion from the Tennessee Supreme Court’s professional responsibility board (Tennessee Supreme Court Bd. of Prof’l Responsibility, Formal Op. 2016-F-161, 9/9/16).

The board grounded this conclusion on the ethics rule that prohibits practice restrictions in client settlements. Tennessee Rule of Professional Conduct 5.6(b), like Model Rule 5.6(b), makes it improper for lawyers to propose or accept an agreement settling a client’s case if the agreement includes a restriction on the lawyer’s right to practice law.

The issue is one aspect of a wider debate over whether ethics rules forbid, or should forbid, secrecy in settlements. See 31 Law. Man. Prof. Conduct 324, 6/3/15 ; 30 Law. Man. Prof. Conduct 676, 10/22/14 .

The opinion discusses the propriety of a defendant’s demand, as a condition for settling a product liability case, that the plaintiff’s lawyer return all documents defendants produced in discovery, including the attorney work product involved in processing, organizing and making exhibits from the documents.

The plaintiff’s counsel received more than a half-million pages from the defendant in image form, converted the pages to pdf documents, processed them with optical character recognition to make them searchable, organized them by subtopics and incorporated them into demonstrative exhibits, according to the opinion.

Also, the plaintiff’s counsel relied on those materials to cut a vehicle into parts for use in explaining technical matters to the jury, and that evidence is useless without the underlying work product, the board said.

Indirect Restriction on Practice

The board said that Rule 5.6(b) prohibits a restriction on an attorney’s representation of future claimants against the same defendant, even if the limitation falls short of a complete barrier.

A settlement clause requiring turnover of all work product may enable defense counsel to accomplish indirectly what it couldn’t do directly—prevent the lawyer from representing other plaintiffs with similar claims, the board said.

Also, the board said that such a provision creates a conflict between the plaintiff’s counsel, who wants to preserve work product to assist future clients, and the lawyer’s current client, who wants to obtain the settlement funds.

The board drew heavily on North Dakota Ethics Op. 97-05 (1997), which addressed settlement provisions requiring the return of documents produced in discovery.

The North Dakota opinion advised that Rule 5.6(b) doesn’t prohibit an agreement to return documents other than work product, but the rule does prohibit a clause requiring turnover of work product if that would restrict the attorney’s representation of other clients.

Whether the clause would have that effect is a factual matter for the attorney to decide based on the documents involved and the facts and circumstances of the case, according to the North Dakota opinion.

Thumbs Down From Ethics Blogger

Ethics blogger Brian S. Faughnan slammed the new Tennessee opinion in a post on his blog Faughnan on Ethics.

The materials described in the opinion aren’t necessarily work product, and the opinion doesn’t acknowledge that work product which a client pays for also belongs to the client, Faughnan said.

Faughan is a member of the Tennessee bar association’s board of governors and has served as chair of its ethics committee. He practices in the Memphis office of Lewis Thomason.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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