I Take No Joy in Writing This.

So, a relatively quick post for this week in terms of content as I’m thrilled to be somewhere else and to be presiding over the first in-person meeting of APRL in two years.

A lawyer in Tennessee brought my attention to an article in a recent ABA publication where two academics, Professor Peter Joy and Professor Kevin McMunigal, write to embrace another academic’s theory (Professor Jon Bauer) published 13 years ago that Model Rule 3.4(f) should be read to absolutely prohibit lawyers from participating in non-disclosure agreements. The new article is “The Ethics of Buying Silence,” and it is in the ABA Criminal Justice publication for Fall 2021. The Bauer piece was in the Oregon Law Review back in 2008 and was titled “Buying Witness Silence: Evidence Suppressing Settlements and Lawyers’ Ethics.”

The context for the more recent discussion of the argument is the pretty shameful use of NDAs in the representation of Harvey Weinstein to seek to prevent victims of a sexual predator from speaking out. But that doesn’t change the fact that the argument that this is the meaning of the rule just seems to fail on its face so obviously.

Granted, I admit that a couple of states over the years have issued ethics opinions adopting the same rationale, and I’ll admit that I haven’t had time to dig into those state’s versions of the rules to see if there is any difference from the Model Rule, but Professor Joy and others’ argument as to the Model Rule itself is, in my opinion, just wrong.

It also seems weird for these two professors to say that “[t]hose who argue that NDAs are not unethical tend to ignore the language of Model Rule 3.4(f).” No, the language of the rule itself is almost all the evidence I need to make my point.

For context, the rule we are talking about says that a lawyer shall not:

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

This is a rule, Rule 3.4, that is titled “Fairness to Opposing Party and Counsel.” This a rule that uses both the term “person” and the term “party.” This is a rule that absolutely, and clearly, contemplates the existence of litigation at the time of its application. This is a rule that prohibits a lawyer, in connection with a litigation matter, from trying to stop someone other than their own client (or as the rule indicates a family member of the client or the client’s employees or agents) from agreeing to voluntarily provide relevant information to the opposing party (or some other party) in that litigation.

Two of the four comments to the rule even more clearly make the point about the context of the rule:

[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

Model Rule 3.4(f) is not a rule that can reasonably be read to apply to an agreement that is entered into as a matter of contract between two or more contracting parties well in advance of any litigation about what is being made the subject of the contract ever existing.

It just can’t. And I don’t even have to trot out the language in the Preamble/Scope about how the ethics rules are rules of reason and must be construed as such to cut the legs out of the argument. And the proponents who are arguing that it prohibits all NDAs reveal that even they know their effort (if not their analysis) is flawed when they admit that there are certain forms of NDAs that they would agree with and that ought to be permitted, such as in the realm of protecting trade secrets or in resolving breach of contract actions before litigation is brought.

Just stop. If you want the rule revised, spend your time arguing for how to revise it. Admittedly, these two professors sort of do that by urging the ABA and states to take actions to “clarify” what RPC 3.4(f) means but trying to argue that the rule already means that – when it doesn’t – just seems disingenuous.