Ethics Opinions 1980-1989

Dual employment by an attorney as a salaried associate with one firm and “of counsel” with another law firm is permissible.

A professional association may not (because of misleading implications) continue to use the name of a former director in the law firm’s name, when that former director is now only “of counsel”, and is simultaneously employed as a salaried associate in another law firm.  (Rule 7.5(a)).
An “of counsel” lawyer may be compensated on a basis of division of fees in particular cases or on a basis of consultation fees, but not by profit sharing.
In any advertising, it should be made clear to prospective clients the limited nature of employment (i.e. “of counsel”).  (Rule 7.1).

An attorney shall not knowingly permit a client to falsely testify in a trial. An attorney shall not knowingly offer evidence at trial that the attorney knows to be false, and is obligated to maintain confidentiality of information revealed to the attorney. (Rule 1.6; Rule 3.3(a)(3)).

Where a client wishes to testify falsely, at a minimum the attorney’s first duty is to attempt to dissuade the client from presenting false testimony. If unsuccessful, the appropriate remedy is to withdraw from representation of the client. (Rule 3.3 with NH Comments.)
.

A law firm’s sign, including names of lawyers who are not admitted to practice in this state, is improper because it is misleading in that it does not indicate the jurisdictional limitations of such lawyers (Rule 7.1; Rule 7.5(b)).

A law firm’s letterhead listing multiple lawyers, including lawyers not admitted in this state, provided it specifies the jurisdictions each is admitted to, complies with the Rules of Professional Conduct.  (Rule 7.5(b); 7.5(d)).

A lawyer’s advertisement in a lawyer-paid law directory should not state or imply that the lawyer is a specialist in a particular field of law, and a listing indicating a limitation of practice to a particular field or specified area of law constitutes an improper advertisement.  (Rule 7.2; 7.4)

Advertising in a legal directory is specifically authorized under Rule 7.2.  (Rule 7.2).

Stating that a lawyer is a “specialist” in a particular field of law or that the lawyer’s practice is “limited to” or “concentrated in” particular fields is not permitted, except in certain areas (e.g. patents and trademarks, admiralty, and other areas authorized by the NH Supreme Court.)  (Rule 7.4).

A law directory may use a disclaimer to remedy the implication that a lawyer is a specialist in a particular area of law.  (Rule 7.2, Rule 7.4).

While an attorney-client agreement may provide for the retention of certain parts of an attorneys file (upon termination of representing that client), it cannot broadly include all “personal notes,” unless modified to exclude such personal notes which client needs to protect client’s interest in the case. (Rules 1.16(d); 1.15(b); 1.1(b)(5), 1.1(c)(4).)

An attorney rendering mediation service to both parties in a divorce, will probably be violating both Rule 1.7 (conflict of interests and representation adverse to another client) as well as Rule 2.2 (outlining situations whereby attorney can properly act as an intermediary between clients). (Rules 1.7; Rule 2.2)

There are no set limits for preserving client’s files, although care should be taken not to prematurely destroy client files and information, consistent with ABA Informal Opinion 1384.

Even after termination of an old client, a lawyer has a continuing duty to avoid representing a new client in situations that would risk a breach of confidentiality or otherwise be unduly adverse to the old client.  (Rule 1.9);

The fact that a present client is a competing business of a prior client, does not by itself constitute a direct adverse interest that would create an impermissible conflict of interest.  (Rule 1.7);

A lawyer must avoid representing a new client in a substantially related matter materially adverse to a prior client.  (Rule 1.9)

Even after termination of an old client, a lawyer has a continuing duty to avoid representing a new client in situations that would risk a breach of confidentiality or otherwise be unduly adverse to the old client.  (Rule 1.9);

The fact that a present client is a competing business of a prior client, does not by itself constitute a direct adverse interest that would create an impermissible conflict of interest.  (Rule 1.7);

A lawyer must avoid representing a new client in a substantially related matter materially adverse to a prior client.  (Rule 1.9)

In destroying original client files, and microfilming same, a law firm must return original documents to the client, and exercise care to preserve the confidentiality of client files. (Rules 1.15(a)(1); 1.16(d); 1.6(a))