Bottom line: Attorneys and their clients should be aware that their adversaries could publicly disclose the substance of settlement discussions in their legal disputes as a way to influence the Court of Public Opinion and, perhaps, those very same settlement discussions.

There’s no Federal Rule of Evidence 408 or its local equivalent in the Court of Public Opinion. While settlement negotiations are generally inadmissible in a court of law, they are admissible in the Court of Public Opinion.

Media-savvy litigants in high-profile legal disputes may wish to publicly disclose the substance of settlement negotiations in those disputes in order to try to gain leverage in those negotiations, or to try and cause reputational harm and damage to an adversary and/or the adversary’s legal team.

Attorneys need to be cognizant of this fact whenever they are engaged in settlement negotiations. They need to be thinking about whether the words they are using in written communications and/or the words they are saying in oral communications are the kinds of things they’d be OK with if those words appeared in a daily or national newspaper article about that dispute or in an article that’s posted on a prominent online media outlet. 

The concern attorneys need to have about how their settlement negotiations could be perceived by the public is that depending on how the public perceives those negotiations, that perception could cause reputational harm and/or business harm to the client, the attorney, and/or the attorney’s law firm. 

A client could lose significant revenues and the overall trust of the public if the client is perceived to be negotiating in a way that’s viewed as immoral, bullying, or simply unseemly.

For attorneys and their law firms, there also is some reputational and business risk here. If an attorney comes across as being a bully, acting in bad faith, or seemingly acting immoral, that could cause serious problems for the attorney and his or her law firm.

Remember, the key audiences of law firms are all human beings who could generate a negative impression of a lawyer in a law firm based on what they read in the media. I’m talking about current and prospective clients, current and prospective referral sources, current and prospective lateral partners, lateral associates, employees, and the like.

When people have a negative impression of a business or a person, that negative impression speaks softly but it carries a big stick.

All it takes is for one rainmaking attorney to not join a law firm because he or she got a bad impression of that law firm through public reports about a high-profile case, or for a client to not go forward with engaging a law firm because of that same report, in order for that reputational damage to translate into serious business harm. 

This is not just some academic thought — this happens in real life.

Recently, in Pennsylvania, the chair of the Pennsylvania Republican Party resigned soon after the Philadelphia Inquirer published an article 
that discussed the sexually explicit messages this man sent to a woman who was running for Philadelphia City Council. There was also what the newspaper called an “explicit photo” that the man sent.

In the Inquirer’s reporting of the story that caused the resignation of the chair, there were a few paragraphs that described settlement efforts. The woman was telling her story and talked about the way the attorney for the chairperson came to her, talked to her, negotiated with her, and suggested that if she didn’t sign a non-disclosure agreement, that her reputation would be damaged by this whole process.

Needless to say, I don’t think that alleged threat made that attorney or that law firm look particularly good. 

Nothing negative may come out of that story for that attorney and for that law firm. But in today’s day and age, with the pushback against nondisclosure agreements, especially when it comes to relationships or interactions between men and women, that negotiating tactic is not a good look for the attorney and law firm.

You could imagine a female general counsel or a male general counsel, or a male or female would-be lateral partner, reading that article and saying, “This firm is the kind of firm to use nondisclosure agreements as a strategy to help their clients silence women? I’m not a big fan of that. I’m taking my business elsewhere.”

The substance of settlement negotiations is admissible in the Court of Public Opinion. Attorneys need to be mindful of that fact and make sure that they are not saying anything during those negotiations, or conducting those negotiations in a manner, that could come back to haunt their clients, themselves, or their law firms.

There’s no hiding behind FRE 408 or its local equivalent in the Court of Public Opinion.

Bottom line: Attorneys and their clients should be aware that their adversaries could publicly disclose the substance of settlement discussions in their legal disputes as a way to influence the Court of Public Opinion and, perhaps, those very same settlement discussions.

Wayne Pollock is the founder and managing attorney of Copo Strategies, a national legal services and communications firm. Attorneys and law firms enlist Copo Strategies to engage the media and the public regarding their clients’ cases (to help resolve those cases favorably), and to engage the media, referral sources, and prospective clients regarding their firms (to help bring new client matters in the door). Contact him at waynepollock@copostrategies.com or 215–454–2180.