Settlement agreements often include provisions intended to keep the peace, including confidentiality and non-disparagement provisions. The provisions are typically broadly worded and often include the parties' attorneys. In what appears to be case of first impression in Florida, the Fourth District Court of Appeal recently held that even when attorneys are referenced in the agreement, they generally are not bound by the provisions. See Hanson v. National Legal Staffing Support, LLC, 49 Fla. L. Weekly D465 (Fla. 4th DCA Feb. 28, 2024).

In Hanson, settlement agreements provided that the parties "their counsel" and "their attorneys" would, among other things, refrain from making blog posts about the litigation or disclose an affidavit that was used in the case. After the settlements, one of the lawyers wrote a blog post about the litigation and disclosed the affidavit. The opposing party sued the lawyer for breaching the settlement agreements and won on summary judgment. The Fourth DCA reversed, finding that while the parties to the agreements intended the lawyer to be bound, nothing in the agreements indicated that the lawyer himself, a non-party, intended to be bound. He did not sign the agreements or manifest any intent to be bound.

In reaching its conclusion, the court relied on decisions from other jurisdictions, including cases holding that lawyers who did sign settlement agreements approving as to "form and substance" also were not bound by the provisions of the agreement. So, the lesson here is that if you want to ensure that both the lawyer and the client are bound by a settlement agreement's confidentiality or non-disparagement provision, the lawyer must sign the agreement and expressly agree to be bound by those provisions. Also of note, the opposing party only sued the lawyer for the breach and therefore the court did not address whether the lawyer's client could be held liable for the lawyer's actions.