NH Ethics Committee

#2009-10/06 Settlement Agreements & Restrictions on the Right to Practice

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Settlement agreements afford individuals the opportunity to resolve disputes quickly and with finality in order to avoid the uncertainty and expense of litigation. Settlements typically are private arrangements among disputing parties and, consequently, specific terms often are not public to avoid disclosure of confidential information or facts that would negatively impact a party. During the course of representation and, in particular, during settlement negotiations, an attorney is obligated pursuant to Rule 1.2 to abide by the client’s objectives and decisions, subject at all times to the Rules of Professional Conduct. One such rule is Rule 5.6(b), which prohibits an attorney from “offering or making” a settlement agreement that restricts the attorney’s “right to practice.”

#2009-10/01 Duties to Prospective Clients

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A lawyer must be careful when exposed to confidential information from a prospective client. If a lawyer is exposed to such confidential information, it may disqualify the lawyer from later representing an opposing party. This opinion outlines certain steps to avoid disqualifying the entire law firm from representing others with materially adverse interests in the matter.

#2008-09/04 Disclosure, Review and Use of Metadata in Electronic Materials

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New Hampshire lawyers who either send or receive electronic materials share an ethical obligation to preserve confidential information relating to the representation of clients. It is impermissible for New Hampshire lawyers to seek to review or use metadata received from opposing counsel.

#2008-09/03 Remedial Measures Under Rule 3.3

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Although attorneys are required to maintain strict confidentiality of client information, attorneys are also required to be truthful to the tribunals in which they appear. As a result, there are occasions when attorneys must take steps to remediate statements made to the tribunal on behalf of a client or by a client regardless of potential harm to the client’s interests. If remediation is required, it must be done promptly.

#2008-09/01 Drafting Lawyer Acting as Fiduciary for Client

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When drafting various estate planning documents, New Hampshire attorneys are frequently requested by their clients to act in one or more fiduciary roles. The drafting attorney may, at the request of the client, be inserted as a fiduciary in the document or documents being drafted by that attorney, provided that: (1) there has been adequate disclosure of information to the client, as required under Rule 1.4; and (2) the attorney makes a determination as to whether the personal interest of the attorney in being a fiduciary would require compliance with Rule 1.7(b) and that the attorney may continue to exercise independent professional judgment in recommending to the client the best choices for fiduciaries under Rule 2.1. In order to document compliance with these Rules, it would be the best practice for the attorney to confirm in writing the “informed consent” of the client to the selection of the drafting attorney as the named fiduciary.

It is ethically impermissible for an attorney to name that attorney, by default, or require the client to appoint the attorney as a fiduciary, in a document drafted by that attorney.

In the event the drafting attorney actively advertises and solicits clients to consider using the attorney as a nominated fiduciary in documents drafted by the attorney, the relationship that results from such advertisement and solicitation may constitute a “business transaction with the client” and thereby requires compliance with the more stringent Rule 1.8(a).

#2006-07/02 Identification of Inactive Bar Membership Status

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Ethics Committee Advisory Opinion #2006-07/02 By the NHBA Ethics Committee October 2006 ABSTRACT: An attorney who is admitted to practice law in New Hampshire should consider New Hampshire Rule of Professional Conduct 7.1 before identifying the lawyer on firm letterhead as admitted to the New Hampshire Bar but on inactive status. ANNOTATIONS: An attorney who … Read more

Closing a Solo Practice in New Hampshire

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Practical Ethics Article By the NHBA Ethics Committee Presented to the Board of Governors May 17, 2007 If you are a solo practitioner contemplating closing your practice, consider four pieces of advice. First, consider alternatives to closing your practice. Your clients and your purse may be better served by these alternatives to simply closing your … Read more

#2005-06/06 Ethics Regarding Business Networking

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Ethics Committee Advisory Opinion #2005-06/06 By the NHBA Ethics Committee October 2006 ABSTRACT: The participation by a lawyer in a networking organization whose members are required to engage in exclusive or quid pro quo referrals with other members (e.g., distributing the lawyer’s business cards or other literature to non-members with whom the lawyer likely has … Read more

#2005-06/04 Attorney Acting as Town Manager and Town Counsel

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Ethics Committee Advisory Opinion #2005-06/04 By the NHBA Ethics Committee This opinion was submitted for publication to the NHBA Board of Governors. ABSTRACT This opinion addresses whether an attorney may act as both Town manager and Town counsel. The Committee reviewed the situations where the legal advice related to issues implicating actions the attorney took … Read more