Lebenns v. Frost Productions et al

Filing 199

ORDER granting 195 Letter Motion to Seal. Application GRANTED. SO ORDERED.. (Signed by Magistrate Judge Barbara C. Moses on 7/8/2024) (ks)

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Law OfficeS of Laurie E. Morrison Page 2 Bar Association (ABA): The rationale of Model Rule 5.6 is clear. First, permitting such agreements restricts the access of the public to lawyers who, by virtue of their background and experience, might be the very best available talent to represent these individuals. Second, the use of such agreements may provide clients with rewards that bear less relationship to the merits of their claims than they do to the desire of the defendant to “buy off” plaintiff’s counsel. Third, the offering of such restrictive agreements places the plaintiff’s lawyer in a situation where there is conflict between the interests of present clients and those of potential future clients. While the Model Rules generally require that the client’s interests be put first, forcing a lawyer to give up future representations may be asking too much, particularly in light of the strong countervailing policy favoring the public’s unfettered choice of counsel. (ABA Formal Op. 93-371, at 2). Thus, even though a client may be delighted to accept a limitation on her lawyers’ future right to represent other similar clients in exchange for receiving herself a larger settlement, and might readily direct her lawyer to enter into that settlement, and Rule 1.2 would normally require a lawyer to follow the client’s instructions to accept a settlement agreement (See ABA Model Rules of Professional Conduct, Rule 1.2(a) (providing, in part, that “[a] lawyer shall abide by a client’s decision whether to settle a matter.”), the lawyer’s ability to do so is limited by Rule 5.6(b). (ABA Formal Op. 93-371, at 2). Indirect Limitations and ABA Opinion 00-417 - In Formal Opinion No. 00-417, the ABA Standing Committee on Ethics and Professional Responsibility addressed the application of Rule 5.6(b) to a settlement agreement that prohibited counsel from using information learned during the existing representation in any future representation against the same opponent. Finding that the restriction was impermissible under Rule 5.6(b), the committee explained that, even though it was not a direct ban on any future representation, “[a]s a practical matter . . . [it] effectively would bar the lawyer from future representations because the lawyer’s inability to use certain information may materially limit his representation of the future client and, further, may adversely affect that representation.” In addition, such a provision would undermine an important policy rationale underlying Rule 5.6(b)— by preventing the use of information learned during the prior representation, the provision would restrict the public’s access to the services of a lawyer who, “by virtue of [his] background and experience, might be the most qualified lawyer available to represent future clients against the same opposing party.” ABA Formal Op. 00-417, at 2-3 (2000) (As noted by one state ethic’s commission, such a restriction on use would also defeat another policy underlying the rule, since it would create a conflict between the present client’s interests and those of the lawyer and any future clients. N.Y. Law OfficeS of Laurie E. Morrison Page 4 Plaintiff again thanks the Court for its time and consideration. Respectfully Submitted, Laurie Morrison, Esq. Application GRANTED. SO ORDERED. __________________________________ Barbara Moses United States Magistrate Judge July 8, 2024

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