Settlement Agreement Not To Testify

A client can always insist that her lawyer refrain from disclosing publicly available information about a case, but a defendant cannot make that request or make a transaction agreement. „Gag orders” that prevent the complainant and/or his lawyer from disclosing to the public or other lawyers the facts of the case they have found to be damaging on several levels. Not only do they allow defendants to conceal relevant evidence from others who might have similar valid assertions, but they also undermine efforts to preserve and protect the civil justice system in the face of the ongoing propaganda and misinformation of the „Tort Reform”, which rely on the provision of misleading or totally false facts of judicial proceedings to make them ridiculous. The „hot coffee suitcase” filed decades ago against McDonald`s and brought to justice is just one example. This is not a completely unusual problem for labour and trade lawyers and, perhaps more by splendor than legal certainty, such a clause is often considered in long-term settlement agreements for SPS and other large corporations. But can an entity Y really prevent honest evidence from being given at trial or at another trial that can (or should) help Z? When a defence counsel requires that a transaction contain a language that prohibits the applicant from sharing relevant factual information with other public persons or agencies prosecuting or investigating claims against the same defendant or prevents the plaintiff`s lawyer from disclosing factual information about the case to potential clients, counsel deals with conduct prohibited by standard rules 3.4 (f) and/or 5.6. Rule 8.4 (a) prohibits a lawyer from knowingly assisting another to break a rule.17 The complainant`s counsel should politely but firmly explain to defence counsel why certain terms or languages are unethical and thus hope to convince him to remove the offensive language. Counsel for the plaintiff in a consolidated action in a number of cases, received a proposal from defendant counsel to settle with the plaintiff, under an agreement that the plaintiff „does not voluntarily testify” in the remaining consolidated cases. The applicant may be considered a physical witness, is a mentioned witness and should testify in the remaining acts. Rule 3.4 (f) prohibits a lawyer from asking a person other than a client to voluntarily refrain from informing another party unless the person who is invited not to testify is a relative or employee of that lawyer`s client. Therefore, if counsel for the defendant requires the plaintiff to withhold relevant information from another party, asking defence counsel not to testify is a violation on the part of defence counsel in that case. (It is considered that the plaintiff is neither a parent nor an employee of the defendant, since it has not been indicated. Rule 8.4 (a) prohibits a lawyer from knowingly assisting another to break a rule.

In recommending to his client an inappropriate request from defence counsel, counsel for the plaintiff would assist defence counsel in violating Rule 3.4 (f) because that lawyer should not ask anyone who is not a relative or employee of his client not to provide relevant information.


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