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How do I proactively void Confidentiality Clause of Settlement agreement?

Sacramento, CA |

I was forced under great duress to sign a settlement agreement with an extreme gag clause. I was threatened by the defense attorneys with more harm and public humiliation (they were going to again put false, fabricated medical records and personal information about me into the public domain and harass my family), and my own attorney (he failed to have a medical expert review done and lied about it and made abundant errors during case). The gag clause benefited everyone except me. Defense does not want me to talk about their fraud in court and the doctor's egregious malicious negligence. My attorney does not want me to talk about his abysmal job and his threats and bullying. I want to keep the case settled. How to void just the gag clause without being in breach of contract?

Attorney Answers 3


There may be a clause in the settlement agreement that states "if any part of the agreement is found unenforceable, the remainder will remain enforceable". You can challenge the gag order as against public policy and therefore unenforceable. There is a possibility that the court will strike the clause from the agreement. But as stated earlier, it will take some attorney hours to try to get the clause stricken.
John Burt

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It will be extremely difficult to strike just one clause from a settlement agreement, especially because you were represented by an attorney during the negotiations. Most likely there is language in the contract that prohibits you from doing exactly what you want to do. You may have a separate claim of malpractice against your attorney but that will not void the settlement agreement. You will need to take the settlement agreement to one or more experienced attorneys who can go over the terms of the agreement and the circumstances with you, and see if there is anything that can be done. However, because it is such an uphill battle, be prepared to pay an hourly fee for these legal consultations.

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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You don't say what kind of case you settled, but if there was insurance involved it was routine and non-negotiable for there to be a confidentiality clause in the settlement agreement. I say "non-negotiable" meaning that under no circumstances would the insurance company have agreed to settle the case without that provision, even for monetary terms significantly better for the insurer and the insured. This is a fact well known -- and acceptable -- to judges assigned to trial courts.

You should not even think about saying or writing anything that can be alleged to be in violation of the confidentiality provision unless and until you obtain legal advice from an experienced and skilled-- and INSURED -- attorney that your intended statement is safe. It is overwhelmingly likely that you will not be able to obtain such legal advice (permission).

Insurance companies settle cases in every jurisdiction in this country every day all day long. They have staffs of skilled professionals who do nothing but settle cases. They have long since learned how to draft an iron-clad confidentiality provision, one that will be upheld and enforced to the letter by the courts of this and all other states. Violation of a confidentiality provision is almost always enforced with terrible and effective force by the insurer, and you could find yourself with a far more ruinous (financially) legal problem than you started out with. Get legal advice, and follow it to the letter. Don't be your own worst enemy here.

You can read through Google Scholar for hours and hours and not find a case where a California court found a confidentiality provision in a settlement agreement unenforceable. There are many who disagree with the law for allowing confidentiality in legal matters, but the state of the law is overwhelmingly in favor of the parties' rights to contract for confidentiality if that is what it will take to resolve their private dispute.

You can say what you want about your attorney's performance without violating your confidentiality provision. You just have to discipline yourself to recognizing the reality and enforceability of boundary.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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