We recently had a defense lawyer demand, during privileged mediation discussions, that we agree not to pursue other claims, nor represent other employees in connection with any future lawsuits against the defendant company seeking to settle a class action we had brought against it. We refused, of course, citing California Professional Conduct Rule 1-500, which prohibits an attorney from offering, making or participating in an agreement that restricts the right of any attorney to practice law. Rule 1-500(A) expressly includes such deals that are part of settlement agreements. The rule is not limited to California. ABA Model Rule 5.6 contains a similar prohibition. Does anyone ever really do that, and if so, do they get into trouble for agreeing not to represent someone suing a company in the future? Absolutely, they do.
Last year, the Florida Supreme Court disbarred one lawyer and suspended another for two years for taking a $6.4 million fee from the defense to file no more cases against E.I. du Pont de Nemours & Co. Attorneys Roland R. St. Louis Jr. and Francisco R. Rodriguez of Miami law firm Friedman, Rodriguez, Ferraro & St. Louis had sued DuPont on behalf of about 20 clients for injuries caused by exposure to a dangerous fungicide. After winning a major procedural battle, they persuaded DuPont to pay the plaintiffs $59 million for a stipulation to vacate and seal an order, and settlement of the two key cases and, contingent upon approval of those, the other 18 cases, all to be kept strictly confidential. St. Louis and Rodriguez then agreed to a side deal by which the firm would receive a separate $6,445,000 fee from DuPont to refrain from further litigation against the company and to serve as counsel and/or consultants for the company in future matters, essentially conflicting them out of future engagements. For this, the state Supreme Court disbarred St. Louis and ordered him to disgorge more than $2 million in fees (Florida Bar v. St. Louis, No. SC04-49) and suspended Rodriguez for two years plus a fine (Florida Bar v. Rodriguez, No. SC03-909). Their partners who were not involved in the case also received discipline ranging from a public reproval to a brief suspension.
We couldn't find a story about what happened to DuPont's lawyers, but if it had happened in California, they would have been in trouble, too.