Sulloway Annual Ethics Update 2021 CLE

Presented by:
Margaret H. Nelson, Esquire
Peter F. Imse, Esquire
Kevin M. O’Shea, Esquire
Annual Ethics Update
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Today’s CLE is being recorded so that other Sulloway lawyers can obtain
CLE credit at a later time. If you don’t wish have your voice and likeness
recorded, please feel free to shut your video off and ask your questions
via the chat box, rather than “raising your hand” and speaking.
603-223-2800 Iwww.sulloway.com
New Ha m p s h i r e I Massachusetts I Rhode Island I Maine I Vermont
“Filmed Before a Live Studio Audience"
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If you are attending today’s remote CLE, please contact:
Amy Bline, abline@sulloway.com
for a copy of your CLE certificate and the written materials
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I. Technology and Ethics
A. Litigation Holds and the Duty to Preserve ESI
1. When, and for whom, the duty to preserve arises
2. Steps counsel must take to investigate and preserve ESI
3. Differences between spoliation and an adverse inference
4. Adverse Inference Standard in N.H.
B. Ethical Concerns in the Zoom Age
C. Virtual Resources: N.H. Lawyer’s Assistance Program
Presentation Overview
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II. National Look: Lawyers Behaving Badly
A. The Deposition Destroyer
B. The Profanity Practitioner
C. The “Legal Lamprey”
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III. New Hampshire: A Year in Ethical Review
A. Disclosure of Client Identity
B. Juror Investigation via Social Media
C. Computer Updates to Accommodate Client Demands
D. IOLTA Checks and Funds
E. Municipal Representation Conflicts
F. Rule 1.18 and Prospective Clients
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IV. Recent Seminal ABA Opinions
A. Opinion 488: Judge’s Close Relationships and Disqualification
B. Opinion 489: Lawyers Changing Law Firms
C. Opinion 492: Obligations to Prospective Clients
D. Opinion 493: Model Rule 8.4(g)
E. Opinion 495: Lawyers Working Remotely
F. Opinion 498: Virtual Practice
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V. Professional Discipline Cases
A. New Hampshire
B. Massachusetts
C. Maine
D. Vermont
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VI. Who’s the Client
A. SurePoint Conflict Checking Guidebook
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Presented by:
Litigation Holds and the Duty to
Preserve ESI
A v o i d i n g t h e P i t f a l l s o f P r e s e r v a t i o n
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• When, and for whom, does the duty to preserve arise?
• What steps must counsel take to investigate and preserve ESI?
• What is the difference between spoliation and an adverse inference?
• What is New Hampshire’s standard for imposing an adverse inference?
Overview
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• NH Rules of Professional Conduct 1.1 (Competent Representation)
• “(a) A lawyer shall provide competent representation to a client.”
• “(b) Legal competence requires at a minimum:”
• “(2) performance of the techniques of practices with skill;”
• “(4) proper preparation;”
• “[8] To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, including the benefits
and risks associated with relevant technology . . . .”
The Rules
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• NH Rules of Professional Conduct Rule 3.4
(Fairness to Opposing Party and Counsel)
• “A lawyer shall not:
• (a) unlawfully obstruct another party’s access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential evidentiary
value”;
• “(c) knowingly disobey an obligation under the rules of a tribunal”;
• “(d) in a pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper discovery request by
an opposing party;”
The Rules
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• Superior Court Rule 25 (Discovery of Electronically Stored Information (ESI))
• “(b) The parties have a duty to preserve all potentially relevant ESI once the
party is aware that the information may be relevant to a potential claim.
Counsel for the parties have a duty to notify their clients to place a “litigation
hold” on all potentially relevant ESI.”
• “(g) The responding party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond to the
categories in the request.”
The Court Rules
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• The duty to preserve arises:
• Once litigation is “reasonably anticipated”
• By the litigant themselves
See Townsend v. Am. Insulated Panel Co., Inc., 174 F.R.D. 1, 3 (D. Mass. 1997).
• “reasonable anticipation” can arise prior to the start of a case, if litigation is
reasonably foreseeable.
When, and for whom, does the duty to
preserve arise?
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Court Rules: Superior Court Rule 25 is designed to specifically address ESI
discovery, and—at a minimum—requires counsel to issue a “litigation hold” to
their client for all potentially relevant ESI.
• The “litigation hold” should:
1. Cover all potentially relevant ESI;
2. Instruct parties to preserve files in their native format; and
3. Should inform the client that any forensic imaging of hard drives is in
the scope of discoverable materials.
See N.H. Ball Bearings, Inc. v. Jackson, 158 N.H. 421, 424 (2009); N.H. Sup. Ct. R. 25(g).
What steps must counsel take to
preserve ESI?
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Public Commentary: Cameron G. Shilling, Electronic Discovery: Litigation Crashes
into the Digital Age, N.H.B.J., Spring 2006, at 22.
• Data is Dynamic:
• Designed to change over time without human intervention;
• Can be modified in innumerable ways; and
• Modification can be difficult—if not impossible—to detect without
computer forensics.
• Counsel must take reasonable steps to ensure that all potentially discoverable
data is identified, retained on a continuing basis, and produced if responsive.
• Counsel must understand and take steps to ensure that ESI is preserved in
accordance with accepted technological standards.
What steps must counsel take to
preserve ESI?
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Spoliation is not the same as an adverse inference finding.
• Sedona Conference Glossary defines spoliation as:
• the destruction of records or properties, such as metadata, that may be relevant to
ongoing or anticipated litigation, government investigation or audit.
• Sedona Conference Glossary: E-Discovery & Digital Information Management 48 (2d ed. 2007).
• An adverse inference is a court avenue to remedy a party’s intentional or
reckless conduct, which involves the failure to preserve discovery materials that
a reasonable trier of fact could determine supports the other party’s claim or
defense. See N.H. Ball Bearings, Inc. v. Jackson, 158 N.H. 421, 434 (2009).
What is the difference between
spoliation and an adverse inference?
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Case Law: N.H. Ball Bearings, Inc. v. Jackson, 158 N.H. 421 (2009).
• To impose an adverse inference the court must conclude:
1. That the party having control over the evidence had an obligation to preserve it at
the time it was destroyed;
2. That the records were destroyed with the culpable state of mind; and
3. That the destroyed evidence was relevant to the party’s claim or defense such that
a reasonable trier of fact could find that it would support that claim or defense.
• For additional details on the requirements for the preservation of ESI, look to federal precedent where
state law is lacking. See N.H. Bail Bonds, 158 N.H. at 430 (instructing that due to increased presence in
federal courts, it is often necessary to “look to those courts for guidance”)
What is the standard for imposing an
adverse inference in N.H.?
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Beyond the Superior Court Rules and resulting obligations, lawyers have
an ongoing duty to maintain their technological competence with regard
to the preservation of electronic records.
• If you are presented with a case that is likely to involve the production or
request for ESI:
• Consider whether there are any areas beyond your technological
competence that you should bring to the client’s attention. Rule 1.1(b)(3).
• If unclear, or if the ESI issues arise in the course of litigation, consider
associating with another lawyer who possesses the requisite skills and
knowledge. See Rule 1.1(c)(4).
• Identify whether your client will require any outside IT assistance, such as
forensic imaging, to adequately maintain the required potentially relevant
documents and ESI.
Ethical Obligations
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Preserve Early and (if necessary) Often
• Forensic standards require, prior to any forensic imaging, that the party identify
repeatable, reliable procedures to preserve data.
• Counsel has an ongoing obligation to ensure that potentially discoverable data is
identified, retained, and produced.
• As soon as litigation is reasonably foreseeable, a litigant’s duty to preserve is
triggered.
Preserve Native Files
• Unless otherwise indicated by requesting party, responding parties should
produce documents as they are kept in the course of business.
Engage in Regular Communication with Your Client regarding ESI
Best Practices
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Presented by:
0 6 . 1 3 . 1 9 • PAGE 16
Zoom: Ethical Concerns and
Confidentiality in the Virtual Age
B e s t P r a c t i c e s i n t h e E v o l v i n g T e l e p r e s e n c e L e g a l L a n d s c a p e
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• What ethical rules govern conduct on telepresence communication
systems?
Overview
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• NH Rules of Professional Conduct 1.1 (Competent Representation)
• “(b) Legal competence requires at a minimum:”
• “(2) performance of the techniques of practices with skill;”
• “(4) proper preparation;”
• “[8] To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, including the benefits
and risks associated with relevant technology . . . .”
The Rules
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• NH Rules of Professional Conduct 1.6 (Confidentiality of Information)
• “(c) A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information relating to
the representation of a client.”
• “[18] Paragraph (c) requires a lawyer to act competently to safeguard
information relating to the representation of a client against unauthorized
access by third parties and against inadvertent or unauthorized disclosure by
the lawyer or other persons who are participating in the representation of the
client or who are subject to the lawyer’s supervision”
The Rules
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• NH Rules of Professional Conduct 5.1
(Responsibilities of Partners, Managers, and Supervisory Lawyers)
• “(a) Each partner in a law firm . . . shall make reasonable efforts to
ensure that the firm has in effect measures giving reasonable assurance
that all lawyers in the firm conform to the Rules of Professional
Conduct.”
• (b) Each lawyer having direct supervisory authority over another
lawyer shall make reasonable efforts to ensure that the other lawyer
conforms to the Rules of Professional Conduct.”
The Rules
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Ellen Rosen, The Zoom Boom: How Videoconferencing Tools are Changing
the Legal Profession, ABA: Practice Tech. (June 3, 2020).
• Security concerns regarding Zoom and similar platforms arise during
times when there are a surge in users
• For example, during March and April of 2020, due to the COVID-19 pandemic, Zoom
users rose from 10 million to 200 million daily.
• This article references a whitepaper from Freshfield Bruckhaus Deringer,
which found Zoom’s software has no inherent issues, but the
unprecedented scale of users may have come faster than the company
was ready for.
• Key concerns: reliance on home internet security, individual user error,
and preserving confidentiality.
Public Commentary
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Ellen Rosen, The Zoom Boom: How Videoconferencing Tools are Changing
the Legal Profession, ABA: Practice Tech. (June 3, 2020).
• Ethical concerns with video conferencing revolve around: confidentiality;
privacy and security; technical competence; and the proper supervision of
junior lawyers.
• The Model Rules and New Hampshire Rules of Professional Conduct do not (yet)
contain a rule specifically governing teleconferencing systems, but three rules
are readily implicated:
1. Rule 1.1: Duty to Provide Competent Representation (including the use of
technology);
2. Rule 1.6: Duty to Preserve Client Confidentiality; and
3. Rule 5.1: Duty to Supervise Junior Lawyers.
Ethical Obligations
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Ellen Rosen, The Zoom Boom: How Videoconferencing Tools are Changing the Legal
Profession, ABA: Practice Tech. (June 3, 2020).
• Lawyers using Zoom and similar systems should:
1. Password protect all teleconferences;
2. Refrain from recording teleconferences without consent;
3. Refrain from exchanging confidential exhibits/documents through the software,
instead using only encrypted materials; and
4. Lock the teleconference once all participants have joined.
• Also, lawyers should ensure that they (and their junior attorneys) are reasonably confident
in any teleconferencing software used when conducting client business.
Best Practices
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Presented by:
New Hampshire Lawyers Assistance
Program: COVID-19 Resources
L a w y e r s A i d i n g L a w y e r s , E s p e c i a l l y i n S o c i a l l y D i s t a n c e d T i m e s

Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns
Among American Attorneys, Journal of Addiction Medicine (Jan/Feb 2016).
A 2016 study, sponsored by the ABA and the Hazelden Betty Ford Foundation, revealed
high rates of substance abuse and mental health issues among American lawyers.
• 20.6% - alcohol abuse
• By comparison, only 11.8% of a broad, highly educated workforce screened positive on the
same measure
• 28.8% - depression
• By comparison, an estimated 6.7% of Americans experienced depression in 2016.
(Depression: Facts, Statistics, and You, Healthline.com)
• 19% - anxiety symptoms
• Similar to general population – 18.1% of Americans have anxiety disorder(s) (Facts &
Statistics, ADAA.org)
Substance Use & Mental Health Among
American Attorneys
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• In 2018, Gabe MacConaill (a native of New Hampshire, and partner at Sidley
Austin) committed suicide.
• His wife, Joanna Litt, published a letter in American Lawyer magazine, titled
“Big Law Killed My Husband”.
• Litt stated that the influences of occasional binge-drinking and a history of
family mental health disorders “[were] coupled with a high-pressure job and a
culture where it’s shameful to ask for help, shameful to be vulnerable, and
shameful not to be perfect.”
“Big Law Killed My Husband”
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Michelle Demarco, Unraveling? Your Stress Levels Are Likely Beyond Your ‘Window of Tolerance,”
Michelle Demarco, Medium, (September 21, 2020)
• A recent poll by the Kaiser Family Foundation shows that nearly half (53%) of Americans report
that the pandemic is having a serious impact on their mental health.
• This is up from 32% reported in March. Kaiser also reported widespread negative behavioral
effects, such as
• difficulty sleeping (36%) and eating (32%),
• increases in excessive alcohol consumption or substance abuse (12%), and
• worsening chronic conditions (12%).
• A federal emergency hotline for people in emotional distress reported calls were up more than
1,000% in April compared with the same time last year.
• Talkspace, an online counseling provider, reported a 65% increase in clients in the last six months.
COVID-19 and Stress
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Gary Polakovic, Pandemic drives alcohol sales — and raises concerns about
substance abuse, USC News (April 14, 2020).
• Alcoholic beverage sales rose by 55% in late March 2020 (coinciding with when
many states and public health officials urged residents to stay at home),
compared to sales in 2019.
• Although the increase in sales could represent stockpiling for the sheltered weeks
ahead, it also signals the potential for alcohol abuse.
COVID-19 and Substance Abuse
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Robert Roy Britt, Covid ‘Cocktail Crisis’ Adds to America’s Serious Drinking Problem,
Medium (July 30, 2020).
• About a third of Americans say they’re drinking more now than before the
pandemic, according to a survey released in April by the American Addiction
Centers.
• A similar percentage said that if they work from home, they’re more likely now
to drink during working hours.
• The average number of drinks per day increased 27% between February and
April, with binge drinking up 26%, according to another survey led by Carolina
Barbosa, PhD, of RTI International, a nonprofit research institute.
• The biggest rise was among people with kids at home versus adults with no
children in the house
.
COVID-19 and Substance Abuse
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While working remotely, consider checking
in with yourself and asking the following
questions:
• Have you or someone you know been drinking
more while confined at home?
• Particularly if you live outside of New
Hampshire, have you been using substances
more frequently while confined at home?
• Have COVID-19 stresses impacted your alcohol
or substance use?
• Do you find yourself engaging in only alcohol-
related virtual social activities?
Best Practices: Check in
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Brian Cuban, author, attorney, and
addiction recovery advocate, also provides
numerous resources on his self-titled
website, including a weekly video blog on a
variety of topics, including:
• Coping with Mortality Anxiety
• Staying Mental Health Centered in
Chaotic Times
• The Myth of the High Functioning,
Impaired Lawyer
Best Practices: Reach out
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• Various resources targeting affects of
the increased stresses caused by
COVID-19 are available through
NHLAP:
• Professional Functioning
• Mental Health
• Recovery
• Suggestions to Keep Busy while
Inside
• NHLAP groups and meetings are
taking place remotely, for dial-in
information use the contact form
https://www.lapnh.org/contact.htm
The Resources
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• Lawyers are particularly concerned about confidentiality.
• Under NH Supreme Court Rule 58 the confidentiality of all client interaction
with NHLAP is guaranteed.
• Any information disclosed to anyone in NHLAP – the employees, the
volunteers, the referrals – will never be disclosed unless there is express
authority of the client to do so.
• Further, NH Administrative Rule 37(e) creates an attorney-client
privilege for all information disclosed to NHLAP.
• If help sought indicates a violation of the NH Rules of Professional Conduct,
NHLAP cannot disclose that information to the discipline authority
NHLAP Helpline 1-877-224-6060
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Presented by:
0 6 . 1 3 . 1 9 • PAGE 31
Lawyers Behaving Badly
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• Examples of attorneys who grievously violated ethical obligations
• The Deposition Destroyer
• The Profanity Practitioner
• The “Legal Lamprey”
Overview
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Case Law: Fashion Exchange LLC v. Hybrid Promotions, LLC, No. 14-cv-1254 (S.D.N.Y.
Sept. 26, 2019)
• New York federal magistrate judge imposed sanctions
because of a lawyer’s repeated objections, prolonged
debate with opposing counsel, and instructing the witness
how to answer during a deposition.
Scott Zarin: The Deposition Destroyer
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Ethical Obligations:
1. Rule 3.2 (Expediting Litigation): requiring lawyer to make reasonable
efforts to expedite litigation
2. Rule 3.4 (Fairness to Opposing Party and Counsel): requiring lawyer to not
“obstruct another party’s access to evidence or unlawfully alter, destroy
or conceal a document or other material having potential evidentiary
value.”
Additional Obligations:
1. F.R.C.P. 30(c)(2): requiring lawyers to make objections at the time of the
deposition examination, but noting that the examination still proceeds,
subject to the objection. Further, stating a lawyer should not instruct a
deponent not to answer unless necessary to preserve a privilege, to
enforce a court order, or to present a motion to terminate or limit.
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The Transcript (excerpt)
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Q: Who is Souny Nsiri. S-O-U-N-Y, N-S-I-R-I?
Mr. Zarin: Objection. Irrelevant. But if—
Mr. Rosenberg: That person’s name appears on
the tax returns. That’s the subject of the
deposition. Knock it off, Scott. Now you’re
just—
(Multiple speakers.)
Mr. Zarin: Mark—
Mr. Rosenberg: —Interrupting and obstructing
the—
Mr. Zarin: No. The subject of this deposition—
and to the extent that the tax returns are
relevant, they are relevant for the issue of how
much the Fashion Exchange was paid in
royalties from Fame Fashion. Nothing else.
Mr. Rosenberg: They’re relevant because I want
to know if the tax returns are even accurate,
and I want to know who these people are.
Mr. Zarin: But you haven't got-if you want to ask
questions about whether the tax returns are
accurate, present him with the tax returns—
(Multiple speakers.)
Mr. Rosenberg: No.
Mr. Zarin: —And ask him those questions. That's fine.
Mr. Rosenberg: Scott, I get to decide what order I
ask my questions in and when I present documents.
I'm asking: Who is the person? It's a yes--it's an easy
question. What are you trying to hide here?
Mr. Zarin: But—but if the questions are irrelevant,
then—then—[sic] which they are in all of these cases
with respect to the questions that you have been
asking so far, then I'm going to object to them being
irrelevant. And I don't think the witness needs to
answer those questions that are not at all relevant to
this case.
Mr. Rosenberg: Are you instructing the witness not
to answer?
Mr. Zarin: I'm not instructing him not to answer. I'm
saying he can answer if he knows.
By Mr. Rosenberg: Q. Who is-who is Souny Nsiri, S-O-
U-N-Y, N-S-I-R-I?
A. I think he's one of the partner [sic] in the Fashion
Exchange."

Findings of the Court:
• Zarin spoke in 75% of the transcript
pages, sought to clarify questions
asked his client, and on occasion
suggested ways for his client to
answer.
• Under F.R.C.P. 30(d)(2), the court
imposed sanctions for Zarin’s conduct
to the extent it impeded and
frustrated the deposition and
“essentially destroys the deposition.”
• Zarin (and his client) were ordered to
pay half the costs for the deposition.
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Deposition

Case Law: Baker v. Allstate Ins. Co., No. 2:19-cv-08024 (N.D. Cal. Feb. 28, 2020)
• Christopher Hook was ordered by a district judge to show cause for why he
should not receive sanctions for a string of insulting and expletive-laden emails
sent to opposing lawyers.
• The emails referred to opposing counsels in a derogatory and inappropriate
manner, and some emails went beyond name-calling and included direct
threats.
• Hook’s client, Allstate Insurance Company, filed an Ex Parte Application
dismissing the action and seeking to disqualify Hook and get a TRO against him.
Christopher Hook: The Profanity
Practitioner
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• Rule 4.4 (Respect for Rights of Third Persons): “In representing a client, a
lawyer shall not take any action if the lawyer knows or it is obvious that the
action has the primary purpose to embarrass, delay or burden a third
person.”
Professional Misconduct Standard:
• Rule 8.4 (Misconduct): states that it is professional misconduct for a lawyer
to “take any action, while acting as a lawyer in any context, if the lawyer
knows or it is obvious that the action has the primary purpose to
embarrass, harass or burden another person, including conduct motivated
by animus against the other person based upon the other person’s race,
sex, religion, national origin, ethnicity, physical or mental disability, age,
sexual orientation, marital status or gender identity.”
Practitioner
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The Emails (samples)
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Opposing Counsel
Settlement Demand
Hey f***face,
I am going to water board each one of
their trolls that show up for depo without
any mercy whatsoever.
Opposing Counsel
Settlement Demand
When you are done fel******
your copy boy tell [client] the
demand is now 305 million.
Opposing Counsel
Settlement Demand
Haha. F*** you crooks. Eat a
bowl of d****.

Finding of the Court:
• Hook engaged in grossly egregious conduct, beyond the bounds of decency
• District Judge Wright (presiding) stated he would do “what [he] can to remove
[Hook] from this profession”
• District Judge Wright asked Hook to resign from the bar, Hook refused
• Ordered to pay $17,088 in monetary sanctions for the costs of opposing
counsel’s legal fees
Court found the client lacked any knowledge of the conduct and granted the dismissal
without prejudice so they could refile with new counsel.
Hook, who had no prior record of disciplinary action apologized and indicated outside
of the courtroom that he “exploded in anger stupidly” and that his “anger management
and emotional problems” spurred his conduct. Hook also revealed that the misconduct
was the result of the loss of a close family member, and he was seeking help for his
emotional problems.
Practitioner
51

Case Law: Usheron v. Bandshell Artist Mgmt., No 19-cv-6368 (S.D.N.Y. June 26,
2020).
• District judge imposed monetary sanctions and required Liebowitz to file a copy
of the Order in every active litigation to put the court on notice. His conduct
amounts to filing a large amount of frivolous cases in the Southern District.
• Barred in 2015, Liebowitz began filing copyright cases in the Southern
District in 2017, since then he has filed over 1,200 and is one of the most
frequently sanctioned lawyers—if not the most frequently sanctioned
lawyer.
• Second Circuit denied Liebowitz’s motion for an immediate stay of the order,
and referred the motion for stay
Richard Liebowitz: The “Legal Lamprey”
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Case Law: Craig v. PopMatters Media, Inc., No. 3:18-cv-01713 (S.D. Ill. July 14,
2020).
• Liebowitz’s client, Glen Craig, sent a letter to the presiding judge once he
received a copy of the opposing party’s motion for attorney’s fees ten months
into the litigation. In the letter, Craig asserts that this was the first time he
learned of the suit filed, that Liebowitz did not pass on the opposing party’s
offers to settle, or any information regarding the case. Rather, Craig stated:
“Richard did all this behind my back and without my authority.”
• Craig asked the court to require Liebowitz to pay any required attorney’s fees,
because he was the “one who rolled the dice” on the litigation.
53

• Rule 1.1 (Competence): “In the performance of client service, a lawyer shall at a
minimum: (3) develop a strategy, in consultation with the client, for solving the
legal problems of the client.
• Rule 1.4 (Client Communications): “A lawyer shall: (1) promptly inform the
client of any decision or circumstance with respect to which the client’s
informed consent is required by these Rules; (2) reasonably consult with the
client about the means by which the client’s objectives are to be accomplished;
[and] (3) keep the client reasonably informed about the status of the matter”
• Rule 3.1 (Meritorious Claims and Contentions): “A lawyer shall not bring or
defend a proceeding, or assert or controvert an issue therein, unless there is a
basis in law and fact for doing so that is not frivolous”
• Rule 3.3 (Candor Toward the Tribunal): “(a) A lawyer shall not knowingly: (1)
make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the
lawyer.”
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The Usherson Order (excerpt)
55
___________________________________________________________
_________________________
______________________
____________

Status of Sanctions:
• Liebowitz has appealed the Usherson
Order, but the immediate stay of its
terms was denied by the Second
Circuit. The order imposed over
$100,000 in sanctions.
• Glen Craig’s letter was accepted by the
Court, and based on his lack of
knowledge of the suit it is unlikely he
will liable for the opposing attorney
fees.
57

• Article: Mike Masnick, Would You Believe That Infamous Copyright Troll Richard
Liebowitz Is In Trouble Again?, Techdirt (Sep. 14, 2020).
• In May 2020, a judge sanctioned Liebowitz, ordering him to participate in CLE
training and to provide proof of attendance and a sworn statement describing
what he had learned & what concrete steps he had taken to improve
compliance in his legal practice.
• Months later (September 2020), Liebowitz had only attended some of the
required CLE classes. His sworn statement was “riddled with typos,” offered
vague generalizations rather than concrete examples of improvement, and
merely copied-and-pasted the CLE course outlines to show what he “learned.”
• After the judge responded that Liebowitz’s filing was insufficient, Liebowitz
submitted the same response again with only slight modifications.
• As of the article’s publication (September 14, 2020), Liebowitz was ordered to
appear before the court on September 15, 2020 to explain himself…
Liebowitz “In Trouble Again”
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Presented by:
Peter F. Imse, Esquire
New Hampshire Ethics Opinions
A Year in Review
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Opinion 2019-20/#1 helps clarify:
Whether a lawyer violates its ethical obligations when disclosing their
client’s identity.
Disclosure of Client Identity
Et hics O pinion 2 0 19 -20/#1
60

N.H. Rule 1.6
Generally, this rule prohibits an attorney from disclosing “information
related to the representation of a client,” except for certain exceptions,
including:
• “Disclosures impliedly authorized in order to carry out the
representation.
61

Holding:
• If disclosing a client’s identity is necessary to the representation and the
client is aware of the necessity, Rule 1.6 would permit the disclosure.
Note: Lawyers should be careful when determining whether subsequent
disclosures fall within the scope of the exception.
62

When an attorney may or may be required to conduct searches of a juror’s
social media.
Juror Investigation Using Social Media
63

N.H. Rule 1.1
• ABA Comment [8] requires a “lawyer should keep abreast of . . . the
benefits and risks associated with relevant technology.”(emphasis
added).
64

N.H. Rule 3.5
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by
means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless
authorized to do so by law or court order;
65

Holdings:
• Rule 3.5 permits attorneys to review a juror’s social media platforms
before and during trial—so long as there is no triggering of an automatic
notification that the social media is being accessed by or on behalf of an
attorney.
• Further, the Committee takes the position that attorney have a duty to
review social media in order to provide competent representation.
66

Suggested Best Practice:
The Committee recommends that attorneys become familiar with the
social medial platform prior to conducting any search.
Moreover, attorneys should consider whether to request the judge to
notify the jurors of the permissibility of public media searches.
67

• Rule 1.6 requires a lawyer to make “reasonable efforts” to prevent the
inadvertent or unauthorized disclosure of client information.
• Comment [18] to MR 1.6 clarifies that this obligation includes the duty
to engage in reasonable heightened security measures requested by a
client.
• Lawyers have a duty to use heightened security measure (e.g.,
encrypted emails) when such a services is requested by their client.
Upgrading Software to Accommodate Client
Request for Security
E t h i cs C o r n e r ( U n p u b l i s h e d )
68

Ethics Opinion 2020-21/#1 helps clarify:
What obligations an attorney has regarding the duty to regularly reconcile
their trust accounts and the treatment of uncashed checks in same.
Uncashed Trust Account Checks
69

Supreme Court Rule 50:
• Generally, an attorney must deposit “clients’ funds which are nominal in
amount or to be held for a short period of time” into accounts that will
are interest bearing (with the interest paid to the N.H. Bar Foundation).
• Attorneys are also permitted to write checks on such IOLTA accounts.
70

N.H. Rule 1.15(e):
• An attorney shall promptly notify the person with an interest in funds
associated with an uncashed check, and must promptly deliver such
funds to the person.
71

What to do with an uncashed check when the attorney needs to clean up
the account?
• Attorneys have a duty to engage in regular reconciliations of IOLTA
accounts.
• Form time to time, a person with an interest in an uncashed check will
be nonresponsive and/or cannot be located.
• Attorneys should then proceed to handle the funds under RSA 471-C
(Unclaimed and Abandoned Property Act).
72

RSA 471-C (Unclaimed and Abandoned Property Act):
• Must make a reasonable attempt to locate the payee of an uncashed check
once discovered;
• Must wait five years; and
• Must file a report with the State.
Funds then generally revert to the person that provided the funds (most often,
the client).
73

• Sup. Ct. R. 50(1)(A) requires a lawyer to make place client funds which are
“nominal in amount or to be held for a short period of time” in and IOLTA
account.
• Neither “nominal in amount” nor “short period of time” are defined in the
rule. Case law suggests $500 or less would be nominal and that two days is a
short period of time.
• Committee opines that lawyers should conduct a balance of costs and
benefits when applying these terms to the funds they handle.
• Lawyers who are unsure whether the funds they hold fall into either
category should seek guidance on their client’s preference for how to
handle the funds.
Nominal Amounts & Time Frame for
Separate IOLTA Accounts
E t h i cs C o r n e r
74

Whether an attorney who represents a municipal Planning Board and
provides advice on interpreting zoning ordinances can offer advise to the
Town’s Zoning Board of Adjustment, or whether such representation could
present a conflict of interest.
Municipal Representation and Potential
Conflicts of Interest
E t h i cs O p i n i o n 2 0 2 0 - 2 1 / # 2
75

N.H. Rule 1.7(a)
A lawyer should not represent a client if that representation involves a
concurrent conflict of interest, which exists if: there is a significant risk
that the representation of one or more clients will be materially limited by
the lawyer’s responsibility to another client.
E t h i cs O p i n i o n 2 0 2 0 - 2 1 / # 2
76

N.H. Rule 1.9(a)
A lawyer shall not subsequently represent a client in the same or
substantially related matter as a formerly represented client where
interests are materially adverse to the former client unless consented to in
writing by the former client.
E t h i cs O p i n i o n 2 0 2 0 - 2 1 / # 2
77

Holding:
• The Committee could not reach agreement on this issue, but noted that
such representation could present a conflict and a lawyer should decline
any representation if they are unsure of whether a conflict exists.
• Considerations for municipal attorneys facing this situation:
• Is the appeal calling into question the viability of the attorney’s advice?
• How would the appellant feel if they knew you represented both boards (any due
process concerns).
E t h i cs O p i n i o n 2 0 2 0 - 2 1 / # 2
78

Ethics Opinion 2019-20/#2 helps clarify:
Whether a lawyer that receives information materially adverse to the
interest of a current client (from a prospective client) is authorized to
reveal any such information and/or whether the lawyer is required to
withdraw from representing the current client.
Rule 1.18
79

N.H. Rule 1.18(b):
A prospective client’s information, gleaned during initial consultation
communications, are afforded similar protections as former clients (under
Rule 1.9).
Rule 1.18
80

Definition:
• The scope of the term “prospective client” excludes individuals who:
1. Unilaterally communicate information to an attorney without reasonably
expecting to form an attorney-client relationship;
2. Merely seek to disqualify an attorney in a matter; or
3. Have contemporaneous contact with multiple attorneys.
Rule 1.18
81

Opinion:
• Disqualification turns on whether a lawyer actually received confidential
information that could be “significantly harmful” to the prospective
client
• Lawyers should limit initial consults to only include receiving and/or
reviewing information reasonably necessary to make a determination
about potential representation.
• If a conflict arises, decline representation or get informed consent from
all affected present and former clients.
Rule 1.18
82

Presented by:
0 5 . 0 1 . 1 8 • PAGE 1
Recent ABA Formal Opinions
83

Opinion 488 helps clarify:
The situations when judges must disqualify themselves when an involved
party or representatives is: (1) an acquaintance; (2) a friend; and (3)
someone with whom the judge has a close personal relationship.
Judge’s Close Relationships and
Disqualification
A B A F o r m a l O p i n i o n 4 8 8
84

Rule 2.11(A) outlines situations in which a judge’s personal relationship
may call into question their impartiality, a judge should disqualify
themselves when the:
Judge, the judge’s spouse or domestic partner, or a person within the third
degree of relationship to either of them when such a person is: a party, a
lawyer in that proceeding, has a measurable interest that could be
affected by the proceeding, or is a likely material witness.
Disqualification
85

Definitions:
• Acquaintance means though the judge and person greet each other
amicably and are cordial when their lives intersect, but the judge nor
the person seek contact with each other.
• Friendship implies a greater degree of affinity than acquaintanceship,
containing some mutual affection.
• A close personal relationship is one that “goes beyond . . . common
concepts of friendship, but does not implicate Rule 2.11(A)(2).”
Disqualification
86

Holdings:
• Not all friendships are equal, and a judge should disclose any relationship
and disqualify themselves where a friend is considered an extended family
member.
• Further, a judge should disqualify themselves in the event any person is a
close personal relationship (particularly if the judge is in or desires to be in a
romantic relationship with the person).
• For the remainder of circumstances, a judge should disclose the relationship
if the judge believes the parties might reasonable consider the relationship
relevant.
Disqualification
87

The ethical obligations surrounding an orderly transition of client
matters when lawyers notify a firm they intend to move to a new
firm.
Departure Notice: When Attorneys Fly
Between Firms
88

Model Rule 1.4: obligates a lawyer to communicate relevant
information to clients in a timely manner.
This includes a lawyer’s prompt notification to clients of a lawyer’s
intended departure from a firm (after the law firm has been
notified).
Between Firms
89

Discussion: There are two typical circumstances that may arise
when a lawyer announces their departure:
• Lawyer and firm agree on a joint communication to firm clients
with whom the departing lawyer has had significant contact.
• Lawyer and firm do not agree, and lawyer is permitted to reach
out to those firm clients with whom they have had “significant
client contact.”
Between Firms
90

Definition:
• “Significant client contact” means a client who could identify the
lawyer, by name, as one of the attorneys representing the client.
• This does not include a client for whom the lawyer only prepared
research memos for another attorney, but did not speak with the
client.
Between Firms
91

Holding:
• In addition to the lawyer having the right to inform firm clients with
whom they have had “significant client contact,” the Committee also
noted that departing lawyers cannot be held to a fixed notice period.
• Moreover, financial disincentives to a competitive departure have
routinely been struck down.
• Overall, the requirements of a law firm for a departing attorney cannot
unreasonably delay the diligent representation of a client.
Between Firms
92

Whether a cold call with a prospective client forms a client-lawyer
relationship such that a lawyer cannot accept a new client with
adverse interests.
Prospective Clients, Cold Calls, and
Confidentiality
93

Whether a cold call with a prospective client forms a client-lawyer
relationship such that a lawyer cannot accept a new client with
adverse interests.
Confidentiality
94

Model Rule 1.18:
A lawyer is prohibited from accepting a new matter if the lawyer
received information from the prospective client that could be
“significantly harmful” in the new matter.
Confidentiality
95

“Significantly harmful” is a fact-based inquiry.
Even if a lawyer learned information that could be “significantly
harmful” the law firm could still accept a new matter adverse to the
prospective client if the lawyer is screened from the matter or the
prospective client provided informed consent.
Confidentiality
96

Information that is typically considered “significantly harmful”:
• Views on settlement issues (e.g., price and timing);
• Factual interpretations or strategic thinking;
• Offering advice regarding potential claims and discussions of
settlement
• Discussion of legal theories about a proposed lawsuit.
• Sensitive information about the prospective client
Confidentiality
97

Information that is not typically considered “significantly harmful”:
• Embarrassing facts or conduct;
• Inconvenient information for an opposing counsel to have; and
• General and public information about the prospective client.
Confidentiality
98

What precautions can a lawyer take to avoid receiving disqualifying
information during an initial consultation?
• Limit the scope of information discussed; and
• Condition consultations with prospective clients on the informed
consent that no information disclosed during the consultation will
prohibit the lawyer from representing a different client in the
matter.
Confidentiality
99

A lawyer’s obligation under Model Rule 8.4(g) and the duty to refrain
from engaging in harassing or discriminatory conduct. Such
obligations do not limit a lawyer’s speech or conduct in settings
unrelated to the practice of law.
Model Rule 8.4(g) and Lawyer’s Heightened
Speech Obligations
100

Model Rule 8.4(g):
Prohibits a lawyer from “engag[ing] in conduct that the lawyer
knows or reasonably should know is harassment or discrimination on
the basis of race, sex, religion, national origin, ethnicity, disability,
age, sexual orientation, gender identity, marital status, or
socioeconomic status in conduct related to the practice of law.”
(emphasis added)
Speech Obligations
101

Scope of MR 8.4(g):
Reaches two types of conduct: harassment and discrimination
• Harassment is “conduct that is aggressively invasive, pressuring, or
intimidating”
• Discrimination is harmful verbal or physical conduct that manifests
bias or prejudice towards other
Speech Obligations
102

Can Lawyers be Subjected to a Stricter Speech Obligation?
• Yes, courts have consistently upheld professional conduct rules
similar to 8.4(g) against First Amendment challenges.
• This is particularly true when the rules confines the obligations to
conduct “related to the practice of law” because bar membership
can require lawyers conduct themselves in a manner compatible
with the role of the courts.
Speech Obligations
103

Whether lawyers may remotely practice the law of their licensing
jurisdiction while physically present in another jurisdiction (where
they are unlicensed) when there is no determination by a particular
jurisdiction regarding such remote practice.
Lawyers Working Remotely
A BA F o rmal O pinion 4 9 5
104

Model Rule 5.5:
• A lawyer is prohibited from engaging in the unauthorized practice of law.
• A lawyer shall not establish an office or continuous presence in a
jurisdiction where the lawyer is unlicensed.
• A lawyer shall not “hold out” themselves as a licensed attorney in a
jurisdiction where they are not licensed.
• A lawyer can provide, on a temporary basis, legal services in a jurisdiction
where they are not licensed, if those services reasonably relate to the
lawyer’s practice in their licensed jurisdiction.
105

Scope of Opinion:
• Whether working remotely outside of your licensed jurisdiction
constitutes the “unauthorized practice of law” is a question of law,
falling outside the Committee’s purview.
• Absent a determination by the local jurisdiction regarding remote
practice, the Committee opines that such remote practice does not
inherently violate Model Rule 5.5.
106

While working remotely, a lawyer should:
1. Check whether the local jurisdiction has a determination
regarding remote work and “unauthorized practice of law”.
2. Do not list the remote location on letterhead, business cards,
websites, etc.
3. Do not list the location address in any public advertisements.
4. Clearly indicate their jurisdictional limits.
107

How virtual practice methods relate to a lawyer’s ethical duties and
best practices and considerations for virtual practice technologies.
Technological Advancements in the Practice
of Law: Virtual Practice
108

Model Rules 1.1, 1.3, and 1.4:
Referred to as the “core” ethical duties, these rules dictate a lawyer’s
obligations relating to competence, diligence, and communication
with clients.
Further, in comment [8] to Rule 1.1, a lawyer’s duties surpass any
obstruction or personal inconvenience, and a lawyer must take all
required ethical measures to advance their client’s interests.
109

Model Rule 1.6:
Lawyers have a duty to maintain the confidentiality of their clients’
information and must “make reasonable efforts to prevent the
inadvertent or unauthorized disclosure of, or unauthorized
access to, information relating to the representation of a
client.”
110

Model Rule 5.1:
Managerial lawyers have ongoing obligations to establish policies
and procedures to ensure compliance with the ethical rules and to
engage in reasonable efforts to ensure that subordinate lawyers and
assistants comply with rules.
111

Lawyer’s Specific Obligations for Virtual Practice under the Model
Rules:
• Keep up to date on changes in relevant technology;
• Consider available safeguards for client information (e.g., secured
emails);
• If in a managerial role, provide appropriate instruction on remote
practices to junior lawyers.
112

Committee’s Virtual Practice Considerations Include the Following:
• Terms of service applicable to hardware devices and software systems
and confidentiality concerns (e.g., zoom or virtual assistants);
• Increasing Security Protections (e.g., use of VPNs, strong passwords);
• Reputation of cloud-based services companies and secure back ups of
data from same;
• Supervision of remote office space; and
• Limitations of virtual practice and informing clients of same.
113

Committee’s Overall Opinion:
Lawyers have an ongoing obligation to periodically assess whether their
existing systems and policies are adequate to:
1. Protect client-related information;
2. Allow for the continued practice of law with minimal interruptions; and
3. Whether the lawyer should engage in additional training or
development in technological competencies.
114

Presented by:
0 5 . 0 1 . 1 8 • PAGE 1
NH, MA, VT, and ME
Professional Discipline Cases
115

Facts:
• Lawyer takes no action to defend clients’ suit, despite regular promptings from
clients and opposing counsel, which causes his clients to default and allows entry of
default judgment.
• Lawyer “routinely lied to his clients about his work, the status of the case, and how
much his clients owed him.”
• Lawyer lied to opposing counsel about serving a responsive pleading that his client
was billed for, but possibly never was prepared.
• Lawyer lied to the court about when his client received notice of the case as a means
to justify his delay.
Sleep Apnea is Still Not an Excuse for
Failing to Adequately Represent Your
Clients
N e w H a m p s h i r e
116

Analysis:
• Lawyer claimed that undiagnosed sleep apnea caused his egregious
inattention to client matters.
• Hearing Panel found that sleep apnea did not prevent lawyer from forming
a knowing state of mind with respect to the charged misconduct.
• Supreme Court affirmed the Hearing Panel’s holding and held that in
Mesmer’s case sleep apnea was a personal problem and not a disability,
because the condition did not cause the most egregious misconduct:
dishonesty to his client and the court.
Clients
117

Result:
• Supreme Court affirmed PCC’s holding that lawyer violated Rule 3.3
(Mesmer admitted to violations of the remaining rules cited by PCC - Rules
1.1, 1.2, 1.3, 1.4, 1.5, and 8.4).
• Court ordered a suspension for three years, with eighteen months stayed,
and payment of costs for investigation and prosecution.
Citation:
• Mesmer’s Case, No. LD-2019-001 (N.H. Feb. 21, 2020).
Clients
118

Facts:
• Lawyer was put on interim suspension after the ADO received complaints
regarding failure to attend scheduled court hearing, failing to respond to
clients and opposing counsel.
• Lawyer failed to respond to requests from ADO for information during its
investigation.
• Lawyer failed to respond or otherwise participate in three separate ADO
proceedings.
You Should Show Up For Your Own
Disciplinary Proceeding
119

Holding:
• Supreme Court issued a final decision finding violations of Rules 1.1, 1.3,
1.4, 1.16(d), 3.4(c), 8.1, and 8.4(a).
• Lawyer was disbarred.
Citation:
In re Michael J. Reed, LD-2020-0009 (N.H. Jan. 13, 2021).
You Should Show Up For Your Own
Disciplinary Proceeding
120

Facts:
• Judge received two complaint regarding conduct relating to an attorney on
the judge’s recusal list.
• Judge failed to recuse herself when attorney on recusal list was involved in
the underlying order (as an appointed guardian) she was reviewing.
• Judge stated that she was aware of the attorney’s involvement but since the
appointment was not a “substantive order” as she merely approved a
Master’s recommendation.
Judges Should Always Recuse Themselves
Where a Conflict Arises—And Should Never
Alter Court Documents To Hide Conflicts
121

Facts:
• Concern was also raised regarding some whited out portions of the
original orders in the action, which were likely to have been obscured
while the file was within the Judge’s chambers.
122

Holding:
• The JCC found the Judge violated the following rules of the Code of
Judicial Conduct: Rule 1.1 (Compliance with the Law), Rule 1.2
(Promoting Confidence in the Judiciary), Rule 2.5 (Competence,
Diligence, and Cooperation), Rule 2.11 (Disqualification), and Rule 2.16
(Cooperation with Disciplinary Authorities)
• The Judge ultimately resigned from her position, and so the JCC felt it
was best to resolve the case without a hearing.
123

Facts:
• Lawyer’s practice required the advance payment of costs for lender clients, which began to
create a financial burden for the firm. Over the course of several years, the operating
account for the firm was depleted, but the firm continued to make payroll yet failed to pay
certain vendors.
• In 2010, the lawyer’s partner discovered the firm’s CFO was covering operating expenses
with funds from IOLTA accounts. The CFO was subsequently fired.
• After conducting an accounting, lawyer and partner were notified that the misappropriate
was “a pretty big number”
• Newly hired CFO continued and expanded the misuse of IOLTA funds. Lawyer was aware of
misuse and used the IOLTA accounts for personal expenses (though claimed no knowledge
of misuse).
Do Not Use Client Funds to Pay Your
Firm’s Operating Expenses or Your
Mortgage
M a s s a c h u s e t t s
124

Analysis:
• Supreme Judicial Court found aggravating circumstances:
• Operating the firm for personal gain
• Lack of Candor
• Harm to Clients
• Lack of Appreciation for basic ethical obligations
• Lawyer took issue with the board finding he gave false testimony as an
aggravating factor, because he felt this penalized him for defending himself.
Mortgage
125

Holding:
• Supreme Judicial Court found violations of the following rules: 1.4(a),
1.4(b), 1.6(a), 1.7(b), 1.8(b), 1.15(b), 1.15(f), 5.3(a), 5.3(b), 5.3(c), and
8.4(c).
• Lawyer was disbarred
Citation:
• Steven A. Ablitt, BD-2019-063 (Mass. Mar. 31, 2020)
Mortgage
126

Facts:
• Lawyer prepared a settlement document and incorporated different
terms than those agreed to by the opposing counsel.
• Lawyer signed the settlement document on behalf of opposing counsel
and sent it to the court.
• Lawyer, separately, inflated litigation expenses for the case, which was
to be paid out of the settlement proceeds.
Don’t Try to Work Extra Terms into A
Settlement Agreement
127

Analysis:
• Court found the lawyer’s statements to the court about the signature, which
were false, misleading, and deceptive, constituted an aggravating factor.
Holding:
• Lawyer ultimately accepted liability and resigned from the bar.
Citation:
• In re Kenneth M. Levine, No. BD-2020-020 (Mass. Mar. 31, 2021).
Don’t Try to Work Extra Terms into A
Settlement Agreement
128

Facts:
• On reciprocal disciplinary action from New York, lawyer engaged in
inappropriate sexual relations with a client.
• Lawyer also used an improper retainer agreement, containing a non-
refundable fee.
Holding:
• Lawyer’s license was suspended for a year.
Citation:
• In re Alex Shmulsky, No. BD-2020-081 (Mass. Jan. 8, 2021).
Still Not Okay to Sleep with Your
Clients
129

Facts:
• Lawyer touched his clients in a sexual nature.
• Lawyer engaged in several instances of sexual innuendo regarding his
client, and client immediately discharged him thereafter
• Lawyer was accused of conduct that would constitute gross sexual
assault
It Is Also Not Okay to Inappropriately
Touch with Your Clients
M a i n e
130

Analysis:
• Court found several aggravating factors:
• Lawyer claimed in his testimony that client manipulated him into engaging in the
conduct
• Lawyer seemed unclear on the inherent power imbalance at issue
• Lawyer continued to engage in further sexual advances with clients after being fired
by one complainant
• Lawyer claimed one individual was not a client, but she came to him in a professional
capacity and paid his retainer.
M a i n e
131

Holding:
• Court found violations of Rules 1.7(a)(2), 8.1, and 8.4(a), (d), and (g).
• Lawyer was immediately suspended.
Citation:
Bd. of Overseers of the Bar v. Clarence H. Spurling, BAR-20-08 (Me. Sept. 4,
2020).
M a i n e
132

Facts:
• Lawyer converted funds from two non-profits entities when acting as a
treasurer;
• Lawyer made improper withdrawals from an estate account fund; and
• Lawyer made an improper charge on a third party’s credit card without
prior authorization.
• Also, lawyer failed to appear at a client’s child custody hearing.
Lawyers Should Refrain from Breaching
Fiduciary Duties
M a i n e
133

Analysis:
• The Maine Supreme Court found several aggravating factors:
• Dishonest and selfish motive
• Pattern of misconduct
• Illegal conduct
• Substantial experience in the practice of law
• The Court also found some mitigating factors:
• Already liable for criminal conduct penalties
• Remorse
• PTSD, which the Court considered to be a physical disability
Fiduciary Duties
M a i n e
134

Holding:
• Court held lawyer violated the following rules: 1.3, 1.5(a), 1.7(a)(2),
4.1(a), and 8.4(a)-(d).
• Lawyer was disbarred for a period of five years, but would be allowed to
petition for subsequent reinstatement.
Citation:
Bd. of Overseers of the Bar v. Hull, BAR-18-10 (Me. June 10, 2020).
Fiduciary Duties
M a i n e
135

Facts:
• Lawyer represented Former Client in relation to a divorce, which included
an undeveloped property in Springfield, Vermont. In connection with that
representation, Former Client owed approx. $11,000 in unpaid legal fees.
• Former Client intended to sell Springfield property. The abutting landowners
(Husband and Wife) sought to purchase the property to avoid any
development.
• Lawyer undertook the representation of Husband and Wife, without
informing them of prior representation of Former Client (or receiving
consent from Former Client).
Lawyers Should Be Cautious of Conflicts
with Former and Current Clients When
Seeking Unpaid Legal Fees
V e r m o n t
136

Facts:
• Lawyer sought to have unpaid legal fees withheld from the sale proceeds at
the time of closing.
• When lawyer informed Former Client’s new lawyer of same, new lawyer
objected since there was no lien on the property.
• Lawyer went to Windsor Superior Court and received a writ of attachment
in the amount of unpaid fees.
• Husband and Wife did not consent to the filing of the lien that encumbered
the property.
V e r m o n t
137

Holding:
• Vermont Bd. of Bar Examiners found this conduct violated the use of
confidential information and the creation of a conflict with a former
client.
• Lawyer received a three-year suspension.
Citation:
In re Richard Bowen, Hearing Pane 10, Nos. 2019-083, 2019-088 (May 7,
2020).
V e r m o n t
138

Presented by:
Who’s the client?

• Lawyers at Sulloway & Hollis, like lawyers everywhere, owe the utmost duty to
the client. We are bound by the rules of professional conduct in the states in
which we practice. That being said, sometimes answering the question “who
is the client?” is simple; sometimes it is more nuanced.
• When the firm is engaged by an individual or entity who pays their own bills,
that person or entity is the client. When the firm is engaged by some other
person or entity, usually an insurance company, the issue of who the client is
requires additional analysis. For example, in 2019 the New Hampshire Bar
Association Ethics Committee concluded that unsettled or inconsistent New
Hampshire law does not provide a clear answer as to whether an insurance
company that hires a lawyer to represent its insured is also a client.
SurePoint Conflict Checking Guidebook
140

• The Ethics committee further stated that until this question was resolved by
the New Hampshire Supreme Court, lawyers should be clear whom they
represent in their engagement letters and communications with insurance
companies. In fact, the Ethics Committee recognized that there are scenarios,
often just before a mediation or deposition, where the client reveals to the
lawyer facts that would render the insured ineligible for insurance coverage,
such that the defendant engaged in intentional conduct.
• Whether the lawyer may or must reveal this information to the company, and
whether the lawyer must withdraw from the matter depends on the resolution
of the relational issue that was created at the outset.
• In fact, the Ethics Committee noted that if the insurance company insists that it
also have an attorney/client relationship with the lawyer for privilege,
malpractice, and communication purposes, then the potential conflicts under
Rule 1.7 may require the lawyer to withdraw in some situations.
141

• In other situations, in which the firm has been retained by an insurance
company for the purposes of defending the insurance company in litigation or
providing a coverage opinion, the insurance company is clearly the client.
• Other states in which we practice may have adopted approaches in which the
insurance company is not the client, is a dual client or might require the
insured and the insurance company to execute a joint defense agreement.
142

• Notwithstanding, there is no reason why all matters for a specific insurance
company cannot be identified (and have their documents stored) under a
single client number with each individual insured receiving a unique matter
number under that insurance company’s “client” number in our document
management and time/billing systems; as this administrative convenience does
not change the ethical obligations we have to our clients.
143

• This material is presented with the understanding that the presenter does not
render any legal, accounting or other professional service. It is intended for
educational and informational use by attorneys licensed to practice law in New
Hampshire.
• Because of the rapidly changing nature of the law, information contained in this
publication may become outdated. As a result, an attorney using this material
must always research original sources of authority and update information to
ensure accuracy when dealing with a specific client’s legal matters or the
lawyer’s matters. In no event will the presenter be liable for any direct, indirect
or consequential damages resulting from the use of this material.
• The views expressed herein are not necessarily those of the presenters’ law firm
or the presenters.
• Presenters assert and reserves all rights in their materials and asserts no rights to
materials owned by others.
Disclaimer
144

Questions?
Comments?
Concerns?
Conclusion
145

Sulloway Annual Ethics Update 2021 CLE

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