In Ethics Opinion No. 708, published in May of 2025, the Professional Ethics Committee for the State Bar of Texas considered two increasingly common provisions in client settlement agreements. See Tex. Comm. On Professional Ethics, Op. 708 (2025). First, the Committee considered a non-disparagement clause that would bind the lawyer, and second, a non-disclosure clause prohibiting the lawyer from using information about the case for marketing purposes.
The opinion offers clear guidance: while some limitations on lawyer speech are permissible, others violate ethical rules if they restrict a lawyer’s ability to practice law.
Non-Disparagement Clauses: An Ethical Red Flag
The Committee concluded that a Texas lawyer may not ethically agree to a broad non-disparagement clause that limits what the lawyer may say in the course of practicing law.
Such clauses violate Rule 5.06(b) of the Texas Disciplinary Rules of Professional Conduct, which prohibits any settlement agreement that imposes a restriction on a lawyer’s right to practice. A non-disparagement clause could prevent a lawyer from:
- Making factual allegations against the opposing party in future representations,
- Consulting candidly with current or prospective clients about similar claims, or
- Representing others in related matters.
Each of these functions is central to the practice of law and protected under Rule 5.06(b). While a lawyer may agree to limit personal speech outside of legal practice, any restriction that interferes with professional obligations crosses an ethical line.
Non-Disclosure Clauses: Permissible Within Limits
By contrast, the Committee found that a Texas lawyer may agree to a non-disclosure clause that prohibits revealing confidential information for marketing purposes, so long as the clause does not go beyond existing ethical obligations under Rules 1.05 and 1.09. The Committee explained these rules already prohibit a lawyer from disclosing confidential client information without informed consent, even if the information is in the public record. A contractual clause that merely reinforces these duties is ethically permissible.
However, a lawyer may not agree to a provision that prohibits disclosing their general experience gained from handling the matter. General experience—such as the type of case handled or the nature of the work performed—is not confidential and is an important part of a lawyer’s ability to inform prospective clients about their qualifications. A clause restricting such disclosures would amount to an impermissible limitation on the lawyer’s right to practice.
A Note for Louisiana Lawyers
Louisiana Rule of Professional Conduct 5.6(b) is substantively identical to Texas Rule 5.06(b), and the confidentiality provisions in Rules 1.6 and 1.9 operate similarly to Texas Rules 1.05 and 1.09. For these reasons, the analysis and outcome would be the same under Louisiana law. That is, a Louisiana lawyer may not ethically agree to a settlement clause that restricts future practice—such as a non-disparagement clause that chills future representation of similarly situated clients. And a non-disclosure clause is only permissible if it reinforces, but does not expand, the lawyer’s existing duties of confidentiality.
In short, if a clause limits what a lawyer may say or do beyond what the Rules already prohibit, the clause itself is unethical.
