THE BLOG
11/05/2013 06:16 pm ET Updated Jan 23, 2014

Why Do We Permit the Payment of Hush Money to Conceal Wrongdoing?

I have been railing for years against secret settlements in civil matters that conceal information which the public has a right to know. My ire was resurrected by an article in the New York Times (Concerns About Jerky Pet Treats 11/5/13) which reported the settlement of a case involving a product that poisoned dogs "under an agreement that prohibits revealing the company's name". I have decried the fact that cases are settled every day in which molesting by priests, sexual harassment or abuse, malpractice by doctors and the existence of dangerous and defective products are concealed from the public. If there is a product or company out there poisoning dogs, doesn't the public have a right to know?

The reality is that a claimant is often given the choice of accepting a satisfactory settlement conditioned upon confidentiality or going to trial. Understandably victims of sexual abuse and harassment prefer not to relive the abuse or subject themselves to a public airing of the events which gave rise to their complaints. Concededly, some cases may be settled to resolve a false or meritless claim in order to avoid the humiliation, embarrassment and possible adverse economic consequences of a public trial. Those settlements certainly deserve a veil of privacy. Since many cases are settled without court involvement or knowledge of the validity of the claims asserted, court approval or rejection of secrecy is not practical or realistic. Court rejection of a confidentiality provision could require the parties to go to trial when they choose not to do so.

What then is the answer? Consideration should be given to an ethics rule which would prohibit a lawyer from demanding or acquiescing in secrecy if the lawyer has a reasonable belief in the truth of the claims asserted and there is a public interest in their disclosure. The limitation need not extend to the amount of any such settlement. There is generally no public interest in knowing how much has been paid to settle a case. But where the public has a right to know of wrongdoing and particularly of defective or dangerous products, settlement agreements should not be permitted to conceal them. Such conduct by lawyers has long been justified by reference to the counsel's sole duty to one's client. Their ethical duty can be salvaged by a rule which prohibits such conduct. If what is good for the client is bad for the public, lawyers should not be permitted to be party to such evil bargains.