Some years ago, I was asked to write an article about major ethical issues confronting lawyers in tort cases.
Confidentiality agreements were not considered overly controversial. After all, there were good reasons why confidentiality sometimes made sense. Certainly, trade secrets should be protected. Then take the isolated case of a physician sued in a medical malpractice case for conduct which wasn’t part of a pattern of wrongdoing. There was no need for the doctor’s name to be dragged through publicity. Confidentiality had its place.
But one type of case was found to be troubling. Suppose there was a danger to the public which was concealed? How could members of the bar morally agree to keep such a danger confidential?
Imagine a family who lost their child when an automobile overturned due to a defective tire. Before that child’s death, the tire company knew it had continuing problems with tires separating but did not notify the public. Death and injuries were resulting. The tire company told its lawyers it would only settle cases if there was a confidentiality agreement. The defect must be totally concealed. It could not be shared with anyone, certainly not a governmental agency, and above all, no one in the media. After some secret settlements, the child died. It could have been prevented.
No disciplinary rule covered that situation.
I concluded that settlements that concealed a danger to the public should not be secretive and there should be an ethical rule to prohibit such secrecy.
I proposed that the Canons of Ethics for lawyers include a rule that read: “Thou shalt neither propose nor accept a confidentiality agreement which tends to conceal a public danger.”
That proposal generated little or no discussion. It just sat there dormant. I myself didn’t give it much further thought for a long time.
Recently, tragedies have taken place which have brought this issue starkly to the forefront of the nation’s consciousness. It was reported that for more than a decade, General Motors was aware of faulty ignition switches which caused some of its cars to accelerate suddenly and deactivate its airbags. It was also reported that settlements with some victims were conditioned on their keeping silent. Sometimes there was even a protective order sealing court records.
Professor Richard Zitrin, a legal ethics expert from the University of California’s Hastings College of the Law, has pointed out that there actually was a tire company which was once allowed to hide information about treads that separated. It was claimed this kind of secrecy delayed the removal of hazardous toys and prescription drugs from the market. Ending these secrecy agreements, Zitrin argued, “would save hundreds, even thousands, of lives by ensuring the public’s right to know.”
It became obvious: secrecy can kill. Two U.S. senators, deeply concerned by this unfolding tragedy, namely Lindsey Graham, Republican of South Carolina, and Richard Blumenthal, Democrat of Connecticut, introduced a bill that would make it harder for companies to hide behind private agreements with plaintiffs. Their bill is called the Sunshine and Litigation Act of 2014. It would require federal judges to consider the public’s interest in transparency before sealing court records in civil actions or approving settlement agreements in cases affecting public health and safety. It is noted that Rep. Jerrold Nadler, a New York Democrat, has introduced the same bill in the House but has yet to find a Republican co-sponsor.
Blumenthal is quoted as saying, “concealment can kill and so can secret settlements.” He goes on to say, “by sealing court records of lawsuit settlements that show serious safety defects, judges are aiding and abetting in the deaths, injury and danger.”
Mary Barra, the General Motors’ chief executive officer, has indicated she wants to make sure this sort of thing never happens again. However, G.M.’s general counsel has stated he would not support a measure to unseal past secret settlements. And so far no legislation has emerged, in part because of dubious claims that such strictures would have a dire effect on the efficiency of the courts and make it impossible to settle lawsuits.
This seems to be an enormously short-sighted attitude. Have we not always been taught that the people’s safety is the first law? Certainly monetary amounts of settlement can remain confidential while still permitting disclosure of information to protect the general wellbeing of the public.
I do believe that we, as members of the bar, have a special responsibility to address and, as far as we can, change the attitudes that put the protection of wrongdoers before the safety of the public. I do believe that we, the lawyers, acting through our bar associations, do not have to wait. Our legislatures are, of course, subject to enormous lobbying influences, which is why so often little or nothing gets done. We need not be.
A solution is at hand. If we the members of the bar unite to propose that concealment of a public danger in a confidentiality agreement is an unethical act, we might very well stop these tragedies.
Presently, lawyers defending companies accused of having such product defects are at the mercy of their clients. Outside defense lawyers who do not cooperate with the company’s wish to keep the danger secret will not get future cases. Defense lawyers who work in house may not be kept on staff unless they go along and play ball. Plaintiffs’ lawyers representing individuals are also in a dilemma. Are they expected to put the well being of the public before that of their client when they have an excellent settlement at hand? Lawyers on both sides are at the mercy of the present system.
Rather than wait for the Legislature to act, I suggest we in the bar adopt as part of our Canons of Ethics a rule prohibiting the concealing of a public danger with a confidentiality agreement. That alone will largely solve the problem. Lawyers who represent defendants will have an answer when the company retaining them asks them to enter into a confidential settlement agreement to conceal a public danger. The lawyer could then say: “We cannot do that. That is unethical conduct. And if you think about it, you’ll understand why. It could kill people to conceal such a danger.” Plaintiffs’ lawyers will have the same right to say, “I cannot enter into that kind of confidential settlement. It would be unethical conduct. If we settle the case, it cannot be confidential. We must be free to share this information with the media, governmental regulatory bodies and with the public in general. The people’s safety is indeed the first law.”
Those who argue that it would be too onerous and inefficient to prevent confidentiality should read about those injured or killed by a policy of concealment. One woman needed eight facial reconstructions because she was left so disfigured. Her boyfriend who was driving lost his right eye. There was a six-year-old boy who is now paralyzed for life. A young man, now a paraplegic, will not join the Marines as he had planned. Another had a catastrophic brain injury.
These victims are not statistics. They are human beings who have but one earthly life. This is not a close issue.