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Is a party's attorney usually bound to the terms of a confidential settlement agreement, or is only the party itself bound?

Phoenix, AZ |

If a party to a lawsuit settles a case with an opposing party through a confidential settlement agreement, are the attorneys of the two parties also bound to adhere to the terms of the settlement agreement? For example, if some time after the settlement between the opposing parties one of the attorneys gets a subpoena from a non-related 3rd party regarding documents involved in the settlement, would the attorney be obliged to keep the documents confidential per the settlement agreement? Or do confidentiality agreements not extend to a party's attorney unless explicitly written as such within the agreement?

Attorney Answers 4

  1. Usually, confidentiality agreemenets apply to all parties and their counsel. It depends why the information is being sought, but your attorney is best able to determine if the confidentially agreement applies in the given circumstances.

    Legal Disclaimer: If this information has been helpful, please indicate below. Attorney Grennier is licensed to practice law in California. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Attorney Grennier strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

  2. As stated in the other comment, yes typically the attorneys are bound to confidentiality. As for the subpoena, your attorney would have to file a motion to quash the subpoena and seek an order of protection regarding the disclosure of the settlement document.

    The above statement does not create an attorney-client relationship and the submitting party should not consider the responding their attorney.

  3. Whether a confidentiality agreement extends to the parties' attorneys is really dependent on the terms of the agreement. However, I can't imagine a confidentiality agreement that does not extend to the attorneys as well as the parties themselves. That would essentially make the confidentiality agreement meaningless.

    This answer is for informational purposes only. It does not create an attorney-client relationship. If your question is regarding a potential lawsuit for or against you, this answer does not mean that I will take any actions to protect your interests. If you are interested in retaining my services, please contact my office for a more in depth discussion of your legal issues.

  4. Interesting story one this question. Last year, I was sued in Ohio along with two of my clients by a municipal judge who had paid a good deal of money to settle part of a sexual harassment claim. I negotiated the deal, but did not sign the agreement. The terms provided that I would receive my attorney fees out of the proceeds. In suing me personally for violation of the confidentiality provision, the judge argued that I was bound as a third party beneficiary of the contract. We did a ton of research, concluding that I was not liable, but the matter never went to final judgment. Again, the terms tend to control, but my position has always been that unless the lawyer is specifically included in the terms for confidentiality -- and unless he/she is deemed a third party beneficiary -- there is no binding the lawyer. The case was Hale -v- Moore, Court of Common Pleas, Franklin County, Ohio.

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