What is A Confidentiality Agreement?

I have read this stuff about Herman Cain and the claims of sexual harassment against him.  I also heard that there was a confidentiality agreement as part of the settlement with the woman or women.  What is a confidentiality agreement?

A confidentiality agreement is a part of some settlement agreements in some types of civil litigation.  Typically, confidentiality agreements prohibit the parties from discussing the terms of the settlement with any one other than attorneys and financial advisors.  Confidentiality agreements may also include anti-disparagement provisions, which means that each of the parties to the agreement are prohibited from saying disparaging things about the other parties.  It is not uncommon for these agreements to provide that the parties are cannot talk about the facts giving rise to suit, the lawsuit itself, or the terms of the settlement, but can say that "the case was settled on terms mutually acceptable to all concerned" or words to that effect.

Confidentiality agreements are common in settlements of medical malpractice cases, products liability cases, employment cases, and very large personal injury and wrongful death cases.  They are used in other types of cases as well. 

Defendants (the people or corporations sued) want confidentiality provisions because they don’t want the plaintiff (the person who brought the suit) to talk about the case in a way to get media attention.  Thus, confidentiality  agreements are used to shield wrongdoing from the public eye.   The plaintiff has little choice but to sign these agreements.

Confidentiality agreements often  bar the plaintiff’s lawyer from discussing the case or settlement.   Once again, the plaintiff’s lawyer had virtually no choice in this  matter because it is in the best interest of his or her client to resolve the case.  This means that lawyers who handle complex cases and get outstanding results are usually prohibited from talking about the details or the results in those cases.

On Monday I suggested on the blog I write for lawyers (Day on Torts) that Herman Cain release the woman or women that signed the confidentiality statements from their obligations under those agreements.  I have no idea whether Mr. Cain did anything wrong.  However, it is unwise (and unfair) for him to state his version of the events without the public hearing the other side of the story.  One woman wants to be heard.  

In my opinion, Mr.Cain will make a big mistake if he does not permit her to tell her side of the story.  He has mis-handled this issue from Day One, and he needs to get all of the facts out there as soon as possible to attempt to solve this problem.

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