The settlement agreement contained a confidentiality clause stating that the settling plaintiff and his counsel agreed to keep the settlement confidential.  The plaintiff’s lawyer signed the settlement agreement under the words “approved as to form and content.”  This decision holds that the plaintiff’s attorney is not bound by the settlement agreement or its confidentiality clause and so cannot be sued for breaching it by publicizing the settlement.  No matter how plainly the contract provided that plaintiff’s attorneys were bound, he could not actually be bound unless he manifested his consent.  He did not do so in the settlement agreement.  The attorney was not listed as a party to the agreement in the opening recital of identifying the parties to the settlement and he did not sign the agreement as a party to it but only as approving its contents.  The settlement agreement’s provision that plaintiff and his counsel agree on means that the plaintiff agrees to direct his attorney to keep the settlement confidential and the plaintiff can be sued for breach if the attorney fails to do so.  But the settling defendant cannot sue the attorney directly for breaching the agreement.  The approved as to form and content language above the attorney’s signature means only that the attorney states the agreement is in proper form and embodies the parties’ deal, not that the attorney agrees thereby to be bound by the agreement.  To bind the attorney to the confidentiality clause, the settling defendant should have drafted the settlement agreement to explicitly make the attorney a party to the settlement agreement (even if only to its confidentiality provision) and explicitly require the attorney to sign the agreement in that capacity.

California Court of Appeal, Fourth District, Division 2 (Ramirez, P.J.); August 13, 2018; 2018 Cal. App. LEXIS 711