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Diversity Matters
The newsletter of the ISBA’s Diversity Leadership Council

June 2018, vol. 11, no. 1

Hush up about sexual misconduct

National attention has been directed recently to hush up pacts involving alleged sexual misconduct (e.g., harassment, assault, and discrimination). Focus has turned to alleged misconduct occurring in and outside of government. As alleged victims of sexual misconduct will be increasingly likely to seek redress, the time is ripe to explore how Illinois laws do and should regulate sexual misconduct settlements. Recent events suggest examinations are needed regarding settlement guidelines operating in and out of courts, formal and informal discovery laws applicable in civil actions, and lawyer responsibility laws.

As to settlements, there are now too few explicit Illinois civil procedure law barriers to hush up (i.e., confidential) settlements of pending sexual misconduct claims. Thus, most parties (though not children) can choose not to incorporate their pacts into final judgments and need not reveal the details of their pacts to circuit judges, including those who have prompted (not coerced) the parties to settle during Illinois Supreme Court Rule 218 conferences. There is little law on secret pacts involving alleged, admitted, or judicially determined acts of sexual misconduct, regardless of whether governmental officials or public funds were or are involved; regardless of whether those who committed bad acts will likely continue to misconduct, or were likely (or known) to have similarly acted towards others not then claimants; and regardless of whether many of the relevant acts and comparable acts involving others not then before the courts were only uncovered due to the formal discovery processes available only during publicly-funded litigation.1

Outside of Illinois there are civil procedure law barriers to some secret civil case settlements that would otherwise try to hide from the public and interested governmental regulators information about not only significant past intentional misconduct by those sued, but also likely future intentional misconduct. For example, Texas Civil Procedure Rule 76a, with some statutory exceptions, deems that court records “presumed to be open to the general public” include “settlement agreements not filed of record, excluding all reference to any monetary consideration, that seek to restrict disclosure of information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.” In Florida, the Sunshine in Litigation Act is broader, in parts, as it bars court orders that have the “effect of concealing a public hazard or any information concerning a public hazard” or the “effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard.” Not uninteresting is whether a Harvey Weinstein (or Al Franken) poses a public health or safety danger or embodies a public hazard, a question seemingly not needed to be asked in Texas about a John Conyers, as only he acted badly as a public official.

As to both formal discovery and informally obtained materials compiled during, but not used in, litigation, there are no filing duties and few explicit Illinois civil procedure law barriers to confidentiality pacts. While a court rule mandating the filing of just all formal discovery materials (or just depositions or interrogatories) uncovered during civil litigation is unwise, there is much merit in Texas Rule 76a, which also deems that “court records” generally open to the public include “discovery, not filed of record, concerning matters that have a probable adverse effect upon the general public or safety, or the administration of public office, or the operation of government.” The Sunshine in Litigation Act goes further as it deems any agreement having the effect of concealing a public hazard, or concealing information concerning a public hazard that would be helpful to the public in protecting against future injury, “is void, contrary to public policy, and may not be enforced.” Materials collected during litigation in publicly-funded tribunals overseen by public officers responsible for promoting justice sensibly could be deemed in the public domain, even for defendants who appear involuntarily, especially where the materials likely demonstrate criminal acts involving sexual misconduct. Such acts are already deemed more worthy of exposure than other criminal acts in the evidence rules on propensity.

As for settlements of sexual misconduct claims never presented in litigation in public tribunals, and materials uncovered during earlier, related investigations, substantive contract laws may not be supplemented by civil procedure laws. Texas Civil Procedure Rule 76a seemingly applies to settlements that could have been “filed of record.” Comparably, the Sunshine in Litigation Act speaks to “sunshine in litigation.”

Substantive unconscionability norms under contract laws, however, for wholly privately-arranged pacts involving sexual misconduct claims can override promises to hush up. Today, many settlements forever, or for quite some time, effectively conceal information on sexual misconduct though their confidentiality duties may not be enforceable in the end. For example, a claimant might only receive periodic payments that would likely end should the pact or its contents be exposed. Or a claimant may not wish to risk challenging the confidentiality duties because contractual fines or other forms of monetary payments (e.g., liquidated damages) may have to be paid if they lose. Not all sexual misconduct claimants are Olympic gymnasts whose monetary payments will be assumed by Hollywood starlets. Recently, an American actress publicly announced she would be happy to pay the $100,000 that a former Olympic gymnast might have to pay upon disregarding an earlier promise to maintain secrecy regarding her abuse by a doctor.

In regulating hush up pacts involving sexual misconduct claims, lawmakers must recognize that some victims (as well as many wrongdoers) will favor limited governmental intervention into wholly private claim resolutions. Pledges of confidentiality from some victims not only protect wrongdoers from public outing and deter recoveries by other victims, but also provide monetary recoveries for the settling victims for their significant harms that would otherwise be difficult—if not impossible—to secure. Some victims may even be interested in recovering hush up monies that go beyond the compensable harms caused.2

While substantive unconscionability norms barring or limiting hush ups about sexual misconduct will certainly be difficult to draft, and perhaps hard to enforce fully, they are needed, particularly when the earlier sexual misconduct clearly involved criminal activity and where the perpetrators are quite likely to harm new victims. One way to deter future crimes would be to better ensure that lawyers do not assist in securing hush up pacts when further comparable crimes are quite likely, if not certain, to occur. Broad freedom to contract privately (as for a victim of sexual misconduct by former U.S. House Speaker Dennis Hastert) does not mean broad freedom to facilitate further harms by sexual predators.

Under current lawyer responsibility laws, of course lawyers may not conspire with their clients who commit crimes. Further, lawyers may not make statements that are false or misleading, cause the unavailability of a witness, or harass or embarrass a person. The recent national discussion of sexual misconduct claims has raised issues regarding a lawyer’s oversight responsibilities involving both clients and the private investigators utilized by clients. Lawyers should not provide assistance to clients who utilize the professional advice or services to engage in crimes. Lawyers generally are responsible for the conduct of “associated” non-lawyers, including, at times, exercising reasonable management or supervisory authority to remedy the consequences of non-laywer acts that constitute violations of lawyer conduct rules.

We should now explore at what point a lawyer representing a client with a long history of being pursued for alleged (non-frivolous, and often seemingly very meritorious) sexual misconduct claims begins to aid the client in committing further acts of sexual misconduct. At what point should a lawyer (like David Boies, a “longtime legal advisor” of Harvey Weinstein) be prompted by law to question a client’s choice of private investigators overseen by the client, but somehow contracted by the lawyer to provide investigation services? And at what point should a lawyer have a duty to cease or alter representation when there arise credible reports that such investigators were digging up dirt in troublesome ways on those accusing the client of sexual misconduct? (David Boies finally did say that for his law firm, it was a “mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control.”) Perhaps here there should be more specific or special guidelines on lawyer responsibilities when representing clients facing civil claims involving crimes, or just sexual misconduct crimes, where there exist significant risks of future bad acts, not unlike the future consequences of a “public hazard” sought to be mitigated in Texas and Florida.

Surely, there is a need for immediate and serious discussions of law reform measures designed to remedy those already harmed by sexual misconduct. As well, there is a need for discussions on how to better prevent future instances of sexual misconduct. Hush up pacts about sexual misconduct should be regulated by Illinois lawmakers, as should similar pacts involving public hazards and governmental misfeasance.
 

Jeffrey A. Parness is a Professor Emeritus at Northern Illinois University College of Law, where he has taught since 1982, and where he still teaches and writes.

This article was originally published in the Kane County Bar Association’s Bar Briefs April 2018 Diversity issue.


1. But see, e.g., United Conveyor Corp. v. Allstate Ins. Co., 2017 IL App (1st) 162314, ¶17-22 (no justification for placing under seal entire records in asbestos-related publicly-filed lawsuits). And see Signapori v. Jagaria, 2017 IL App (1st) 160937, ¶18-28 (in a contract terminating a business relationship and shared property ownership, confidentiality provision was void as its purpose “was to conceal the parties’ prior and continuing misrepresentations” to banks and the Small Business Association).
 
2. See, e.g., Formal Opinion 2017-3, N.Y.C. Bar Assoc. Comm. on Prof. Ethics (6-20-17) (ethical limits on seeking civil dispute advantage by threatening ancillary non-criminal proceedings).