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One after another, at recent hearings about defective Firestone tires, lawmakers have lamented the evil effects of confidentiality agreements between plaintiffs’ lawyers and lawyers for Ford Motor Co. and Bridgestone/Firestone Inc. The secrecy agreements, they say, may have kept the public from learning about the problem until at least 88 Americans had been killed in crashes. It’s a point of view that plaintiffs’ lawyers and safety advocates have been pushing for at least a decade. So why — if they, predictably and publicly, oppose sealing off corporate secrets — do plaintiffs’ lawyers sign confidentiality agreements, just as predictably, in their own cases? Critics of the system say that ethical and court rules make secrecy an offer that plaintiffs’ lawyers can rarely refuse. The lawyers’ message to legislators and judges seems to be: Stop me before I seal again. Take Miami lawyer Kathleen Murphy. She represented Christopher Kehm, a Florida resident who was injured when he lost control of his Ford Bronco and rolled it over on a Tennessee highway in 1996, after one of his Firestone tires blew out. Early on in the case, lawyers for Firestone presented Murphy with a proposed agreement for her to sign. She says that she thought the agreement was too broad, keeping a lid on information that couldn’t fairly be characterized as trade secrets. “I told the Firestone lawyer, ‘If I talk in my sleep, I’ll violate the order,’ ” says Murphy. “ He said, ‘Well, don’t talk in your sleep.’ “ Fighting the protective order would have meant additional delay and cost for her client, without any guarantee of winning. If she signed the agreement, on the other hand, Murphy could get the documents she needed from Firestone and get on with the case right away. She signed. Naturally, Murphy looked for information about cases similar to hers. She ran into closed doors. Other lawyers had their own confidentiality agreements, which prevented them from saying much. Some would say only that their cases were “resolved,” the only response permitted under the terms of their settlement agreements. “It’s a dilemma,” says Murphy, “because as much as the plaintiffs’ lawyer would like to protect the public, you also have a duty to your client. If you want to maintain steadfastly that you won’t sign a confidentiality agreement, you’d better be prepared to go straight through to trial. That often is not in the best interests of the client.” Other lawyers with cases against Ford and Firestone choose to negotiate the terms of protective orders, but few litigate on behalf of the public. “We wish there were more heroes out there,” concedes Arthur Bryant, executive director of Trial Lawyers for Public Justice, a Washington, D.C., public-interest litigation group that is supported by plaintiffs’ lawyers across the country. “We wish there were more people who say, ‘We’re going to protect not only our rights, but vindicate the rights and safety of the public.’ “ Trial Lawyers for Public Justice intervenes in lawsuits to battle overbroad protective orders. Together with the Association of Trial Lawyers of America and the Attorneys Information Exchange Group, a clearinghouse of information related to automotive cases for plaintiffs’ lawyers, Bryant’s group lobbies for state laws, or rules in state courts, that limit courtroom secrecy. The first, and arguably the strongest, measure allowing plaintiffs’ lawyers to share what they learn while on a case was drafted by Texas Congressman Lloyd Doggett in 1990, when he served as a justice on that state’s Supreme Court. He sees the continuing need for these measures in the current tire debacle. “I think there are lives that are being lost every week in America, due to hazardous products and hazardous activities, as a result of secrecy agreements,” says Doggett. SELLING SILENCE Still, ethical codes almost never require a plaintiffs’ lawyer to reject a confidentiality agreement to serve the public interest, say experts in legal ethics. In fact, it may actually be unethical to reject an agreement if it benefits the client. “Defendants are willing to pay a kind of premium to buy silence,” says Kathleen Clark, a professor at Washington University School of Law in St. Louis who teaches a course called Secrecy and Whistleblowing. “It might be in a particular client’s interest to get that premium.” Even so, Clark thinks that the rules conflict with broader ethical principles that should prohibit lawyers from keeping information secret if it threatens public safety. Richard A. Zitrin has proposed a change to the rules of professional responsibility that would make it unethical to keep from the public information concerning a “substantial danger” to health or safety. So far, the American Bar Association, which is considering changes to its ethics rules, has shown little interest, says Zitrin, an ethics expert and author who teaches at the University of San Francisco School of Law. Although most of the debate has been about court-sanctioned secrecy agreements, Zitrin believes that even greater abuses are contained in private agreements between plaintiffs’ and defense lawyers that judges never see. Because most discovery materials, including documents and deposition transcripts, are not filed in court, judges often are in the dark. Even if judges have the information they need, says Zitrin, they are often reluctant to override the wishes of litigants who agree to keep material secret. Doggett, as a former judge, thinks there should be tougher standards to ensure that judges take the public interest into account when ruling on litigation secrecy. Although federal and state court rules generally contain standards for the types of evidence a judge may properly keep secret, only a few states even address unfiled discovery. Experts on these so-called sunshine laws say that Florida and Texas are the most suspicious of secrecy. A total of 12 states have laws limiting corporate privacy to some degree. Another nine states have court rules. Veteran auto litigators say that defendants, including Ford and Firestone, often try to get away with as much as they can in discovery and when drafting protective orders. “The game is, number one, to stall and, number two, to try to protect as broad a set of materials as they can,” says Tab Turner, a Little Rock, Ark., lawyer who has fought Ford in more than 100 rollover cases. Ford faces 1,800 products liability cases each year. The company often demands that inexperienced plaintiffs’ lawyers share documents with no one outside their own case and return all documents at the end. And they get away with it. More sophisticated litigators, such as Turner, take a pass on the companies’ most restrictive offers and hold out for agreements that limit the type of material that can be protected and allow the lawyers to compare notes with other lawyers litigating similar cases. BEST DEFENSE Not surprisingly, defense lawyers look at the secrecy issue differently. Why, they wonder, should a civil complaint be a license for plaintiffs’ lawyers to rummage through a company’s most closely guarded secrets? “Every agreement is reviewed by the courts. The plaintiffs can argue the point to the judge if they have concern,” says Ford spokeswoman Susan Krusel. Ford attorneys say that their behavior in discovery is completely above-board. “My basic obligation is to abide to the rules of civil procedure. My job is to look a judge in the eye and discuss this topic and not have to look away,” says Ron Cabaniss, a Ford outside counsel based in Orlando, Fla. And they disagree with the premise that secrecy breeds dangerous products. “I don’t think any person can sit here with you and me and scientifically and arithmetically say that any of those status or rules or regulations have basically saved one life. It’s not forces such as sunshine acts that make products safer,” says Michael Hoenig of New York’s Herzfeld & Rubin. “They are nowhere in Europe, yet Europeans make safe cars.” Defense lawyers also say that strict sunshine laws interfere with the privacy their clients need to conduct business. “Most people need some leeway to work, and go through drafts, explore their thoughts, and to be brutally frank in their communications of what inputs go into decisions,” Hoenig says. That informality is destroyed when employees worry that their thoughts may one day be opened to one and all. Regulation and consumer demand are what determine safety, he insists. And while plaintiffs’ lawyers charge their opponents with using a big trade secrets umbrella to shelter embarrassing documents with little commercial value, defendants say that litigation can put their clients in real competitive danger. “In a very fast economy, it’s totally obvious that there can be substantial advantages to a company if it can secure some of these documents,” says Neil Goldberg, incoming Defense Research Institute president. “You have manufacturers in other countries, similarly trying to secure these secrets.” In those other countries, he says, competitors are more insulated from the crippling costs of U.S. litigation. The discussions of confidentiality with plaintiffs’ lawyers often follow a familiar choreography, with plaintiffs agreeing to secrecy first, then later protesting, defense lawyers say. “Often, it feels to me as though it comes at a time when they’re trying to put pressure on the defendant to settle: ‘Oh, we’re going to give this to the press if you don’t talk settlement with us and give us lots of money and lots of big attorneys’ fees,’ ” says Lorna Schofield, a partner at New York-based Debevoise & Plimpton who co-chaired a discovery rules task force for the American Bar Association.

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