contract-law
Does a non-disparagement clause in a settlement cover the oppositions attorney?
<p>A few years ago I started to have some disagreements with another party.  At the time I had transacted less than $5000 in business.  They involved a lawyer, and things got really ugly, really quickly.  They sued, and then we settled out of court, but it cost me over $20K in legal bills.   Most of this was time wasted in negotiation of a very simple settlement - I feel like the other attorney was intentionally prolonging the process.  I have no idea how much it cost the other side.   Looking back, I feel strongly that this lawyer intentionally stirred the pot, perhaps even misrepresenting me to them or them to me.   I've also heard of another case were this same attorney intentionally made misrepresentations in order to create an ugly legal situation almost out of thin air.   Now I'd like to say something to somebody - or just post something online saying "this guy is a horse's ass."  However, I have a non-disparagement clause in the settlement which seems like a standard one, saying that I can't disparage the business, including "officers, directors, agents, attorneys," etc.  On the one hand, this guy was their attorney at one point in time, so from the wording it would appear that this would cover him. However, he has no public affiliation to the business and my calling him out online wouldn't cast their business in any sort of negative light, and of course he gave me no considerations in the contract. I would think that the other side would never pursue this sort a breach, except for the fact that there is a liquidated damages clause - so in theory, this attorney, who likes to stir things up, could tell them - "hey this guy disparaged your attorney - you win liquidated damages."   </p>

<p>Is there any sort of clear answer here? Assume for the point of argument that I'm smart enough to disparage him in a way that will never by linked to his former clients.    </p>

<p>Edit : More specifically, I would like to disparage their attorney for things he has done that are not related to my case. In particular, this guy has been sanctioned by the court for this kind of thing in another case.  (Not my case, not pointing back toward me or my adversary.)  The point would be to protect other businesses who might be misled into thinking that his services will provide an efficient resolution to similar situations.     I should also point out that the Company has their own in-house attorney which would clearly be off-limits for me.   </p>

<p>There's part of the settlement that says I can't publish information about the settlement "for any reason" so I hesitate to give the text of it (for all I know there could be some unique quirk that may allow them to find me if I do ) - but it appears to be pretty standard - I've seen similar agreements online.  Someone asked for the clause so here's one from a different contract that is more-or-less the same.  </p>

<p>(Both parties) agree that they will not .... directly or indirectly, in any capacity or manner, publicly, by press release or similar public statement to the press, ...  make, express, transmit speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal, in writing, electronically transferred or otherwise, that might reasonably be construed to be derogatory or critical of, or negative toward, Citizen A, Company B or any of its directors, officers, Affiliates, subsidiaries, employees, agents, attorneys or representatives (collectively, the “Company B Representatives”), or that reveals, discloses, incorporates, is based upon, discusses, includes or otherwise involves any confidential or proprietary information of the Company or its subsidiaries or Affiliates, or to malign, harm, disparage, defame or damage the reputation or good name of the Citizen A, Company B, its business or any of the Company B Representatives.</p>

<p>Also, it's in the US.  I won't be more specific, just in case. </p>

<p>Why on earth would you make statements that may breach a contract you signed and could also be defamatory against a person who a) is a lawyer and b) you know from personal experience will use the law aggressively to get what they want? To make yourself feel better? There are safer ways: skydiving, bungee jumping, climbing Mt Everest etc. </p>

<p>Notwithstanding, the person you are talking about is both attorney and agent of the person you signed the non-disparagement agreement with. Disparaging him would be a breach of that agreement.</p>

<p>If the agreement has no third party beneficiaries and the attorney is not a party to the agreement, he cannot sue for being disparaged.  Neither can his client sue for the lawyer's injuries because the client doesn't have standing because the client wasn't personally disparaged.  Also if what you say is true, it is not disparagement.</p>

<p>Assuming -without conceding- that this clause of the contract is fully enforceable (see next paragraphs), you may denounce the attorney unless he happens to be Citizen A. By making sure you keep your denouncement(s) totally unrelated to your case, anything you denounce about the crooked lawyer will not pertain to his capacity as Company B's attorney. Thus, your denouncement does not violate the non-disparagement clause of the settlement.</p>

<p>I highly doubt a clause like that is enforceable. The scope of that clause amounts to even prohibiting you to sue Citizen A, Company B, or any its Representatives no matter how egregiously they inflict unlawful harm on you. That is because a complaint in court entails publishing of information that is detrimental to their "good" standing, and the press may happen to give coverage of the judicial proceedings.</p>

<p>Moreover, if they engage in other fraud or illegal activity against third parties and you knowingly conceal it (as per the contract), you could face liability on grounds of complicity with -if not abetting of- their offenses.</p>

<p>People should <strong>never</strong> consent to that type of abusive clauses, as it is very hard to prove afterwards that the settlement was accepted under duress. With that sort of attorneys involved, basically you get the worst of both worlds.</p>
