Ethics Question of the Month September 2025

You Don’t Say

Can an attorney agree to be bound by a non-disparagement clause in a client settlement agreement?

The Situation

Attorney Samantha has an established intellectual property practice. She currently represents Webster, a longtime client, in litigation. While settlement of the case previously appeared unlikely, both sides have recently been more amenable to reaching an agreement. Webster would now like to settle the dispute, provided the terms are reasonable.

In reviewing a proposed settlement agreement prepared by opposing counsel, Samantha notices the document would require both Webster and Samantha to agree to be bound by a broad non-disparagement clause regarding the opposing party.

Viewing the terms as favorable, Webster would like to move forward with settlement. Samantha agrees the proposed settlement agreement would be beneficial for Webster but is not sure whether she, as counsel for Webster, can permissibly agree to be bound by the broad non-disparagement clause.

The Question

According to a 2025 Professional Ethics Committee opinion, which of the following is most accurate?

The Correct Answer is D Of 6 Responses, 50% are correct.

  1. A 0
  2. B 3
  3. C 0
  4. D 3
  5. E 0
  6. F 0

The Explanation

The Professional Ethics Committee for the State Bar of Texas addressed this issue in Ethics Opinion 708 (May 2025).

Rule 5.06(b) of the Texas Disciplinary Rules of Professional Conduct provides, in pertinent part, that a “lawyer shall not participate in offering or making . . . an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a suit or controversy . . . .”

In Opinion 708, the Committee opined that “a lawyer may not agree to be personally bound by a non-disparagement clause in a client settlement agreement that applies to statements the lawyer might make in the course of practicing law.”

Opinion 708 explained:

A broad non-disparagement clause would effectively prohibit the lawyer from representing another client adverse to the same opposing party by preventing the lawyer from making allegations of misconduct by the opposing party. Likewise, a broad non-disparagement clause would restrict a lawyer’s right to practice by limiting the lawyer’s ability to consult freely with current or prospective clients about claims they may have against the opposing party. . . . A term in a client settlement agreement that forbids a lawyer from disparaging an opposing party is a restriction on the lawyer’s ability to practice law that is prohibited by Rule 5.06(b).

The Committee, in Opinion 708, further clarified:

Under Rule 5.06(b), therefore, a lawyer may not participate in offering or making a client settlement agreement under which a lawyer for one of the parties agrees to a general non-disparagement clause. We do not, however, suggest a lawyer may never be a party to a non-disparagement clause. If, for example, the clause does not restrict statements made within the lawyer’s law practice, but only limits the lawyer’s personal speech or conduct outside the practice of law, it would not violate Rule 5.06(b).

The correct response is D. To access Professional Ethics Committee opinions, as well as other ethics resources, go to legalethicstexas.com.

Bluebook Citation

You Don’t Say: Ethics Question of the Month - September 2025, Texas Center for Legal Ethics (2025), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-september-2025/ (last visited Aug 31, 2025)

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