Can a settlement require a lawyer to agree not to sue the defendant again, and can a separate agreement do the same?

Plain-English summary

The committee considered agreements not to sue a defendant for a limited or unlimited period of time. It concluded that RPC 5.6(b) would prohibit such an agreement as a condition of a settlement, whether contained within the settlement agreement or in a separate agreement.

The inquiry also concerned an agreement by a lawyer not to represent parties adverse to another party that was fully independent of any settlement agreement. The committee concluded that if such an agreement were actually independent of any settlement, nothing in the Rules of Professional Conduct would prohibit it, whether by way of the lawyer being retained by the party or some other agreement. It cautioned, however, that such an agreement could not indirectly do what RPC 5.6(b) specifically prohibits.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 5.6 on restrictions on a lawyer's right to practice was later renumbered and amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a settlement require the plaintiff's lawyer not to sue the defendant again?

A: No. The committee concluded RPC 5.6(b) would prohibit such an agreement as a condition of a settlement, whether in the settlement agreement or in a separate agreement.

Q: What about an agreement not to oppose a party that has nothing to do with a settlement?

A: The committee said that if it were actually independent of any settlement, nothing in the rules would prohibit it, whether through a retainer by that party or some other agreement.

Q: Is there a limit on such an independent agreement?

A: Yes. The committee cautioned that such an agreement could not indirectly do what RPC 5.6(b) specifically prohibits.

Background and rules framework

The opinion interprets Washington RPC 5.6(b) as it stood in 1986, which barred a lawyer from offering or making an agreement restricting the right to practice as part of a settlement of a controversy (corresponding to Model Rule 5.6(b)). The committee read it to bar a settlement-conditioned promise not to sue the defendant, while leaving room for a genuinely independent engagement not to oppose a party, so long as it is not used to evade the rule.

Citations and references

Rules of Professional Conduct:

• Washington RPC 5.6(b) (no practice restriction as part of a settlement), corresponding to Model Rule 5.6(b).

See also

• WSBA Ethics Op. 927: non-compete and buyout restriction under RPC 5.6
• ABA Formal Op. 93-371: restrictions on representing future clients
• ABA Formal Op. 95-394: a settlement restricting practice against the government

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=99

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 988
Year Issued: 1986
RPC(s): RPC 5.6(b)
Subject: Agreement by lawyer agrees not to sue defendant

The Committee considered your inquiry regarding agreements not to sue a defendant for a limited or unlimited period of time. The Committee was of the opinion that Rule 5.6(b) of the Rules of Professional Conduct would prohibit such an agreement as a condition of a settlement, whether contained within the settlement agreement or a separate agreement.

[The ethics inquiry also concerned an agreement by a lawyer not to represent parties adverse to another party which was fully independent from any settlement agreement.] The Committee was of the opinion that if such an agreement were actually independent from any settlement agreements, there would be nothing in the Rules of Professional Conduct to prohibit such an agreement, whether by way of the lawyer being retained by the party or some other agreement. However, the Committee did want to caution you that such an agreement could not indirectly do what RPC 5.6(b) specifically prohibits.