In Opinion 708, the Texas Professional Ethics Committee (“PEC”) addressed whether a lawyer could personally agree to be bound by two different types of clauses in a settlement agreement which resolved a client’s legal matter: a non-disparagement clause and a non-disclosure clause whereby the lawyer agreed not to reveal confidential information related to the representation for marketing purposes. Looking at both Texas Disciplinary Rule of Professional Conduct 5.06(b) and PEC Opinion 505 (August 1994), the PEC framed the dispositive question as analyzing whether the proposed provisions in any way restrict the practice of law beyond the existing restrictions in the TDRPC.   

TDRPC 5.06(b) states a lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a suit or controversy. Opinion 505 addressed…