Bachar on Plaintiffs’ Lawyers’ Disclosure Duties

Gilat Juli Bachar has posted to SSRN Plaintiffs’ Lawyers’ Disclosure Duties. The abstract provides:

Lawyers representing plaintiffs in civil litigation often participate in settlements that conceal risks to public health and safety-contributing, wittingly or not, to future harm. This Article challenges the prevailing assumption that plaintiffs’ lawyers have no obligation to consider the interests of nonclient third parties in such cases. It illustrates how negotiated nondisclosure agreements (NDAs)-like those used in the cases of Harvey Weinstein and General Motors-have shielded patterns of abuse and corporate misconduct from scrutiny. Rather than proposing changes to the duty of confidentiality, it advocates a practical reform within the existing ethical framework: limiting the scope of representation. Specifically, plaintiffs’ lawyers should notify prospective clients at the outset that they will not negotiate NDAs that conceal ongoing dangers to the public. While the Model Rules of Professional Conduct prioritize client loyalty and confidentiality, these duties do not preclude lawyers from resisting harmful secrecy, so long as they define the boundaries of their representation at the outset. Drawing on the work of legal ethicists like David Luban, Heidi Feldman, and William Simon, this Article reconceptualizes the lawyer’s role as a moral agent and public citizen and advocates for a professional culture more attuned to justice and collective wellbeing. By encouraging voluntary coordination across the plaintiffs’ bar to adopt and normalize these scope limitations as a collective professional standard, this Article offers a feasible, incremental strategy to counter the culture of silence in civil litigation, without violating confidentiality or undermining client advocacy. In doing so, it reclaims the plaintiffs’ lawyer’s role as both advocate and steward of justice.