110 N.J.L.J. 325
September 16, 1982
Personal Injury Settlement
Disclosure to Media by Attorney
An inquiry has been made with respect to media publication of
personal injury action settlements. We are advised that newspapers
have been carrying accounts of such settlements. We are also
advised that these newspaper articles state the names and addresses
of the parties, the amounts of the settlements, and the names and
office locations of the plaintiff's attorneys. The inquirer states
that 50 percent of the newspaper articles examined reported
settlement amounts not available from public record. The inquirer
asks under what circumstances, if any, may a litigant's attorney
disclose to the media the details of a settlement where those
details are not a matter of public record.
It is our opinion that it is unethical for an attorney to divulge details of a settlement in a personal injury action where those details are not a matter of public record. DR 4-101(B)(l) precludes a lawyer from knowingly revealing a secret of his client. Under DR 4-101(A), a secret includes "information gained in the professional relationship... disclosure of which would be embarrassing or would be likely to be detrimental to the client." Additionally, DR 2-101(A) prohibits the dissemination by an attorney of any misleading or deceptive information regarding the attorney's ability, experience or fee. Misleading and deceptive information includes statements which omit material information necessary to make the statement not misleading or which are likely to create any unjustified expectation. See DR 2-101(B)(2) and (3).
An attorney's release to the media of personal injury settlement details not matters of public record could tend both to embarrass his client and mislead the public. The publication of a settlement amount in connection with an attorney's name gives the appearance of self-aggrandizement without providing a complete picture of the events leading to the final settlement, and could mislead the public into making an unwarranted assumption that the attorney's expertise or ability resulted in the settlement of the case. For example, the publication of an article that Attorney X obtained $100,000 in settlement of his client's personal injury claim would amount to a self-laudatory and misleading representation if Attorney X had previously rejected an offer of $200,000, or if the value of the claim was $200,000 but the policy limits of the defendant's insurance amounted to only $100,000.
Therefore, DR 4-101(B), when read in conjunction with DR 2-101, prohibits the disclosure by an attorney of personal injury action settlement details which are not a matter of public record. The danger of self-aggrandizement and the appearance of impropriety are exacerbated when the attorney initiates the media contact and divulges the amount of the settlement or settlement offers to be used in connection with the names of the attorneys involved. Moreover, the disclosure of a non-record settlement amount may well embarrass or tend to be detrimental to the client's interests by focusing public attention on a matter he or she would rather put behind. Since the client is free to respond to media inquiry, there is no unreasonable restraint upon the free flow of information. Consequently, there is no social purpose to be served by the participation of the attorney in such communications with the media, and such communication is therefore proscribed.