The Washington Post has reported that a woman who previously accused Herman Cain of sexual harassment would like to speak to the press about Cain's alleged misconduct. The problem is that she is barred from doing so because of a confidentiality agreement.
Here's the legal ethics angle. Imagine that a media company is willing to pay the accuser a million dollars for her story and is willing to indemnify the accuser against whatever damages she has to pay for breaching the confidentiality agreement (e.g., liquidated damages). Also assume that the lawyer for the media company knows that this deal with the accuser would cause her to breach her confidentiality agreement. The lawyer also knows that this deal may (will?) result in some kind of claim against the media company, such as an intentional interference with contractual relations claim. (I'm not a contracts scholar or teacher, but let's just assume that the lawyer knows that this agreement with the accuser will result in her breaching the confidentiality agreement and will likely result in some sort of claim against the media company. The media company and the accuser are both willing to run this risk.)
Can a lawyer help the media company strike a deal with the accuser under these circumstances? Put another way, is it ethically permissible for a lawyer to help a client ink a contract knowing that it will result in the (efficient) breach of another contract as well as civil claims against the lawyer's own client?
Model Rule 1.2(d) prohibits lawyers from helping clients achieve criminal or fraudulent ends. But the proposed contract strikes me as neither. So would this be ethical? Is the lawyer subject to liability? If so, why?
Addendum: It occurred to me after I posted that the confidentiality provisions of a settlement agreement might be subject to a court order. If that's the case, the lawyer in my scenario would be helping the client violate a court order, which raises a more serious concern. In that scenario, I assume the lawyer be violating Rule 1.2(d). Is this the answer to my question?
Update: This story describes another option for circumventing the confidentiality agreement.
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