Secret Settlements and Practice Restrictions Aid Lawyer Cartels and Cause Other Harms

In this article, the authors argue that the use of secrecy agreements and practice restrictions in settlement contracts should be prohibited not only by the ethics rules, but also by criminal and civil law. The authors begin by discrediting four arguments that are traditionally employed to support the use of secrecy agreements and practice restrictions. They then argue that the use of secrecy agreements and practice restrictions generate substantial costs, but do not secure any legitimate benefits that could not be attained by other, less costly means. The authors also ex-plain how the problems caused by secrecy agreements and practice re-strictions are particularly severe in the class action context.A number of commentators have argued that the Supreme Court’s decision in Nix v. Whiteside, 475 U.S. 157 (1986), has laid to rest the constitutional issues raised by Rule 3.3. The author argues that, when properly analyzed, Nix should be viewed as a constitutional outlier. The facts of Nix present almost the weakest case imaginable for finding a Sixth Amendment violation, and the decision does not address Fifth and Fourteenth Amendment issues. In Nix attorney Robinson remonstrated with his client and successfully prevented him from testifying falsely. His client did in fact take the stand, testified truthfully, and presented the substance of his claim of self defense. In other cases, where defense counsel goes beyond persuasion to prevent a defendant from testifying falsely or when the lawyer’s actions prevent the client from testifying at all, constitutional violations may well occur.

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