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Richard Zitrin wants more sunshine in the courtroom, but he isn’t breaking out his Ray-Bans just yet. What Zitrin wants is a new American Bar Association rule that deems it unethical for lawyers to help clients enter into secret settlement agreements, a practice the adjunct professor in ethics at the University of San Francisco School of Law says forces lawyers to put clients ahead of the public welfare. And although his call for “more sunshine in the courts” has so far fallen on deaf ears at the ABA, he has managed to immerse himself in one of the most divisive legal issues to surface in the California Legislature this session: whether companies should be allowed to settle product defect claims confidentially without disclosing potential dangers in their products. Adding fuel to what is already one of the most hotly debated attorney issues of the 2001 legislative session, Zitrin wants to put a stop to the types of settlements used by companies such as Bridgestone/Firestone Inc. to hide potentially fatal product defects. But like his allies in the California Legislature — Senate Judiciary chairwoman Martha Escutia, D-Montebello, Calif., and Assembly Judiciary chairman Darrell Steinberg, D-Sacramento, Calif. — Zitrin, who practices with San Francisco’s Zitrin & Mastromonaco, is running into fierce opposition. While legislative battles have raged for nearly a decade over secret settlements, Democratic lawmakers again took aim at the practice this year. Seizing on images of flipped Ford Explorers, the legislators, backed by the Consumer Attorneys of California, argue that only through full disclosure of all court documents — including discovery material — will the public be safe from defective heart valves and silicone breast implants. Opposing such a change are defense attorneys and tort reformers who continue to argue that such a ban would not only clog the courts, it would also strip litigants of their right to privacy and threaten trade secrets. Defense attorneys contend that an ethics rule like the one Zitrin is proposing would bar attorneys from advocating for their clients. They also say that it would create a situation where clients would be afraid to seek advice from a lawyer. As two bills designed to outlaw the practice, SB 11 and AB 36, face an uncertain future in both houses of the state Legislature this year, Zitrin hopes to make an end run around the lawmaking process and force lawyers to think twice before counseling clients on such agreements. Zitrin says an ethics rule would have a chilling effect on secret settlements and allow lawyers to bow out of the process gracefully — whether a law banning the agreements altogether is passed this year or not. “It’s better to have both,” he says of the rule and the legislation. “The two working together would be very powerful. [But] if I could choose one, I’d rather have an ethics rule.” Zitrin says he’s certain that if a rule were in place lawyers would follow it. “It gets both sides off the hook from doing something they know is wrong,” he says. He adds that being a zealous advocate — someone who will do anything for his or her client without regard for the consequences — is inappropriate and unnecessary to being a good lawyer. Still, getting a rule in place anytime soon may prove extremely difficult. PROPOSAL REJECTED Despite the fact that 35 law professors, including such notables as Stanford’s Deborah Rhode, have signed on in support of his proposed rule, Zitrin’s idea was rejected at a February meeting of the ABA’s Ethics 2000 Commission. Zitrin says he remains hopeful the proposal will be brought back from the dead when the ABA’s House of Delegates meets in Chicago in August. “I frankly don’t understand their problem,” he said of the commissioners. “The easier path is just for them to not deal with it.” According to the minutes of the February meeting, the commission felt that Zitrin’s proposal was not appropriate for inclusion in the ethics code and would function better as a rule of court. The commission was also concerned that the proposal would prohibit a lawyer from advising his client on what is essentially a lawful activity. “There are all kinds of rules that prohibit lawyers from doing what a client can do,” Zitrin says. He adds that he’s confused by the fact that the Ethics 2000 Commission would be wary of making policy that governs the behavior of lawyers. “If they’re not doing that, what are they doing?” He asks. Nancy Moore, a law professor at Boston University and the commission’s chief reporter, says the commission will not review the proposal again, but it could be brought up when the House of Delegates meets. She says the commission felt the proposal was not appropriate for the ethics code. “The commission believes it’s a policy issue that should be addressed to clients, not lawyers themselves,” she says. She adds that the commission felt it should not tell lawyers they aren’t allowed to assist clients with something the client is legally allowed to do. “It tells [the client] they can’t get legal advice for a cause of action [they are legally entitled to take].” Moore adds that such a rule wouldn’t be binding unless it were adopted by individual states. Zitrin counters that when public safety is at issue client confidence should get trumped. He also says he’s pursuing a rule at the national level because the ABA is charged with creating model rules for every state. He’s optimistic that if the ABA included his proposal in the ethics code, it would only be a matter of time before it was adopted in California. “This is mom and apple pie; I’m really surprised by the opposition,” he says. NOT SURPRISED BY OPPOSITION Those not surprised by the opposition to the ethics rule are attorneys on both sides of the battle currently being waged at the California Capitol. Since the legislation was introduced on the first day of the session, attorneys have been fighting hard on both sides. SB 11 narrowly escaped the Senate Judiciary Committee last month as party lines blurred and Escutia scrambled for enough votes. The bill now goes before the full Senate where anything can happen. Amor Esteban, managing partner of the San Francisco office of Haight, Brown & Bonesteel and a proponent of secret settlements, says barring the use of the agreements would not only result in a logjam at the courts, but would serve as a leverage tool for plaintiffs lawyers to extort settlements. He says he isn’t opposed to disclosing information if it poses a danger to the public, but he says the remedies that have been proposed are too broad. “The way this legislation is written, everything is available to the public,” he says. Esteban fears that if companies are forced to go public with discovery information it will have a chilling affect on business in California, particularly in the high-tech and biotech sectors where trade secrets are so prized. “It shifts the burden away from the presumption that trade secrets should be protected,” he says. His view is that people like Zitrin and Escutia are trying to cure a headache by cutting off the head. And he doesn’t for a second subscribe to the notion that the proponents are moving forward with the safety of the public in mind. “It doesn’t happen,” he says of companies hiding dangerous product defects behind secrecy agreements. “Let’s assume it did happen. How often does it happen?” He adds that sweeping legislation will serve to punish all companies for something only a few have ever done. “The plaintiffs bar hasn’t established that there is a wholesale practice that calls for the legislation,” he says. The real reason behind the move, says Esteban, is money. Esteban says the plaintiffs’ bar is backing the ban on secret settlements because it will allow them to force companies to settle frivolous lawsuits. He predicts that plaintiffs’ firms will be able to get settlements from companies by threatening to go public with trade secret information. As for promises that trade secrets will be sealed by a protective order, Esteban says having judges sift through discovery documents to decide what is and what isn’t a trade secret is too much for the courts to handle. “I dare say that anyone who’s a student of the court system knows this is not doable,” he says. He says having an ethics rule in place wouldn’t work either because it would place a lawyer in the awkward position of having to rat out his or her client. “It’s akin to saying an attorney has an obligation to admit to the court that a client committed the crime [he or she] is accused of.” A HIGH ROAD OF OPENNESS Zitrin discounts the arguments made by defense attorneys like Esteban, and compares his rule to a Tarasoff situation — the 1974 California Supreme Court ruling in Tarasoff v. Regents of the University of California in which the court said “privilege ends where public peril begins.” “At some point client confidentiality gets trumped,” he says. Zitrin also calls the trade secret arguments put forth by defense attorneys utter nonsense. He points out that his rule, like the legislation, makes clear that trade secrets will be subject to a protective order. “You’re going to be able to protect proprietary information unless it kills someone,” he says. And Zitrin can’t understand why any company would feel the need to protect the trade secret of a defective product, something a Bridgestone/Firestone executive vice president admitted to doing before Congress. Firestone tires have been linked to more than 150 deaths and as many as 500 injuries. “If it’s a defective product there’s no trade secret,” he says. “No one’s going to copy that design.” Although the movement to do away with secret settlements has gathered steam, time will tell if Zitrin will ever see his rule finally implemented. By that time there may already be a new law on the books, at least in California. Until then Zitrin says he’ll continue to keep fighting until lawyers begin taking what he calls, “the high road of openness.” “I will spend as much time [as it takes], until the law is what it ought to be,” Zitrin said. “Then I’m going to buy the most expensive bottle of champagne and drink it.”

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