Al Gerhardstein

Al Gerhardstein is a Cincinnati civil rights attorney.

I was a cub lawyer. The man on the phone was an experienced, respected, leading member of the bar. He was blunt.

“You don’t know who you are dealing with. You keep this up and I will report you to the disciplinary counsel and have your license," he said.

The threats were intimidating. I filed the paternity action against the married, well-known public figure anyway. I was scared but wanted to help my client get child support for her child. But rather than face the defendant in court, I got called into the judge’s chambers. The judge was behind a huge desk. Several suits from a big firm were lined up near him.

“What are you doing with this?” the judge barked as he shook the legal complaint at me.

“Seeking a paternity ruling and a child support order,” I explained.

The judge told me that the defendant had agreed to pay, an agreement would be drawn up, the case would not be posted to the public docket, the agreement would be confidential, he would keep the agreement in his desk drawer, and if I ever had any problems getting payments just come see the judge in chambers.

My client got her money. The public figure got a cover-up, secure in the knowledge that he could abuse women and buy his way out of any public accountability.

This was the first, but certainly not the last time I helped cover up sexual abuse and harassment. So, the news reports about how Harvey Weinstein, Bill Cosby and Bill O’Reilly bullied their victims into secret settlements has been no surprise to me. I have represented numerous women who sued bosses, including restaurant owners, lawyers, doctors, and other business owners. After vigorously denying the claim and trashing my clients, nearly every boss eventually settled and insisted that the settlement be confidential. Most of the women were exhausted by that point and convinced themselves that the confidential settlement allowed them to negotiate for more money, keep their finances private from others, and avoid any reputation as a troublemaker as they continued working in their field.

Confidentiality agreements are routine now in employment cases and indeed in most civil litigation. For example, medical claims are often settled by first dismissing the doctor as a defendant and then confidentially settling the claim through payments made on behalf of nurses or medical assistants. This avoids any duty by the doctor to report the payment to registries that track malpractice claims.

On occasion, I have prevailed on a claim in a trial court and the defendant has appealed. The appellate court mediator then brokered settlements that included a payment by the defendant of a confidential sum and agreement by the trial court to vacate the decision so it could no longer be cited as precedent. This outrageous manipulation of the public body of law for private purposes has been justified as facilitating settlements and clearing the docket.

Confidentiality agreements are eroding the integrity of our judicial system. We need to rein them in. Today when clients retain our firm, they sign a retainer agreement that strongly encourages them to resist any confidential settlements. After all, we are civil rights firm. How are civil rights vindicated if the public never learns of abuse and misconduct by the powerful is covered up?

Many clients refuse confidential settlements but others like the benefits that a confidential agreement can provide to them. The conflict created by a client wanting to privately end the dispute and the public good achieved by making settlements known to the community is very challenging for the lawyer.

The Me-Too campaign is providing a great service. Once again women are leading us toward a more just society. The campaign is shining a light on sex abuse and harassment but also on confidential agreements that hide the perpetrators from public accountability. We cannot end abuse when we continually accommodate it with confidentiality agreements. This is particularly important when the evidence we have uncovered reveals a pattern and the likelihood that the defendant will abuse again. Particularly in those situations, lawyers should encourage our clients to resist the demand for confidential settlements.

I commend all the victims who are acting to end the cover-ups. Let’s hope their lawyers stand with them.