Every lawyer should have access to a good confidentiality clause to use when it is needed during settlement negotiations. You may be the one proposing that the terms of the settlement or claims release be kept confidential, or you may be the one who has to be ready with a counter-proposal form. On either side of the table you need to know some of the basic legal issues that a confidentiality clause raises. Our form #SET1511-confidentiality clause gives you both a short law report to study and a legal form clause to use.
Adding a confidentiality clause to a release of claims or to a settlement agreement raises a host of legal issues that you as a lawyer should consider. The brief report included in #SET1511-confidentiality clause is not intended to be comprehensive, but it is intended to be brief enough so that you will actually read it though and be alerted to those issues most commonly involved when you use a confidentiality clause. For example - tax issues. A confidentiality clause may be a tax detriment to plaintiff. Personal injury settlements normally aren't taxable [see, 26 U.S.C. 104(a)(2)], but this isn't true of income received as consideration for a confidentiality agreement. If you have not allocated a specific amount of the consideration as paid to secure the confidentiality clause, the tax commissioner may do that for you! See, Amos v. Commissioner of Internal Revenue, T.C. Memo. 2003-329, 2003 WL 22839795. In short, if the damages are otherwise excluded from gross income under the tax laws, plaintiff's counsel had. That's an example of the issue-alerting you get with this form legal.
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