Ethics of Settlement: Restricting Plaintiff's Counsel from Representing Future Claimants

Landlord's CEO is happy with the decision to settle, but is worried that this costly litigation arises from nothing more than a personal vendetta by Plaintiff's lawyer, Sue Orbesood. He believes Ms. Orbesood intends to make a career out of suing Landlord for alleged ADA-related violations at all of its many properties ' as well as for violations of any other laws or regulations she can come up with now that she has extensive records relating to Landlord and the Megatropolis property. Because the desire to get Ms. Orbesood out of its hair was central to Landlord's decision to settle, Landlord's CEO instructs you to include in the settlement agreement the following provisions:

• Ms. Orbesood will not represent future claimants in ADA claims against Landlord;
• She will keep the fact, terms and amount of the settlement confidential;
• She will neither advertise the fact that she prosecuted an ADA suit against Landlord, nor use Landlord's name in any advertising or promotional materials;
• She will not solicit individuals with potential ADA accessibility or accommodation claims against Landlord, refer them to other counsel or share a fee with other counsel in connection with such claims; and
• She will return not only all confidential documents produced during the litigation pursuant to the terms of the existing protective order, but also all of her work product, which she will not use to aid any future claimants.
• In return, Landlord will pay Ms. Orbesood a premium above and beyond her legal fees, in addition to the settlement amount already agreed upon between the parties.

If Ms. Orbesood will not agree to these terms, Landlord's CEO suggests, as an alternative, that Landlord offer to retain Ms. Orbesood as a legal consultant. Landlord would pay her a monthly fee to be “on call” to advise it in connection with ADA-related compliance issues. The agreement would be memorialized in a separate retainer agreement entered after the settlement with her client is consummated. Ms. Orbesood would provide valuable insight to help Landlord minimize its exposure to future ADA lawsuits, and the arrangement would have the intended result of conflicting her out of taking any cases against Landlord in the future.

Can you ethically seek to include in the settlement agreement any of the provisions Landlord suggests? Can you ethically negotiate the side retainer agreement between Landlord and Ms. Orbesood to conflict her out of future cases? The answer to both questions may be surprising: No. Despite how desirable such terms may be to the parties in the case, both Ms. Orbesood and you could face disciplinary action for violating the rules of professional conduct if any of these terms are negotiated or become part of a settlement of the case.