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Bar Journal - December 1, 2002

List of NH Bar Association Ethics Committee Opinions and Articles

The New Hampshire Supreme Court adopted the present Rules of Professional Conduct effective February 1, 1986, and has amended the Rules from time to time. Several of the Rules as adopted in New Hampshire differ materially from the ABA Model Rules. As a result, care should be exercised in determining which version of a given Rule applies as of a given date, and the extent to which the interpretation of a given opinion or article will apply to such version. The NH Rules of Professional Conduct are now available on the court's Web site at

The New Hampshire Supreme Court has not adopted the ABA Model Code Comments, the New Hampshire Comments, or the Committee Notes to Decisions, all of which are included in some hard-copy versions of the Rules. The Comments and Notes have not yet been updated to match the amended Rules.

The New Hampshire Bar Association's Ethics Committee has no official connection with the New Hampshire Supreme Court's Committee on Professional Conduct, which makes disciplinary recommendations to the Supreme Court.

The Distinction Between "Opinions of the Committee" and "Practical Ethics Articles"

The Ethics Committee produces two types of work product. Opinions of the Committee analyze and apply the Rules to specific situational inquiries submitted to the Committee. Practical Ethics Articles analyze and apply the Rules to issues or situations determined by the Committee to be of general interest to the Bar. Both receive equal consideration, are the work product of the Committee rather than its individual members, and are received and reviewed by the Board of Governors of the Bar Association.

The Committee regularly publishes opinions, either as responses to fact-specific inquiries or as more general discussions of "Practical Ethics" issues. To request an opinion, submit your query in the form of a written fact pattern or hypothetical and send it to the attention of Denice DeStefano, staff liaison to the Ethics Committee, at or c/o NH Bar Association, 112 Pleasant Street, Concord, NH 03301.

Can't find an NHBA Ethics Opinion or Practical Ethics article on point? ABA's ETHICSearch at is a research service that responds to inquiries about situations posing ethics issues.

The following opinions, listed chronologically, are available to be read or downloaded on this site under NH Practice Guidelines. There have been no opinions or articles published in 2001-2002 due to the Ethics Committee's focus on proposed revisions to the Rules of Professional Conduct.

2000-01 Ethics Opinions

#2000-01/05 Release of Billing Statements to Third Party Auditors

2000-01 Practical Ethics Articles

July 2001 Conflict of Interest in Family Law Matters
July 2001 To Disclose or Not to Disclose: Disclosure of Billing Statements to Non-Clients
Nov 2000 Taking Stock In Your Client As Legal Fees Or An Investment

1998-99 Ethics Opinions

#1998-99/15 Conflict of Interest: Joint Petitions in Domestic Relations
#1998-99/14 Lawyers Selling Insurance to Their Clients
#1998-99/10 Conflict of Interest: Referral Fees from Investment Advisors
#1998-99/3 Safeguarding Settlement Funds of Clients and Third Parties: Recognized Valid Liens on Settlement Funds in Lawyer's Possession

1998-99 Practical Ethics Articles

Nov 98 It's a Family Affair
Dec 98 Clients Are Entitled to Their Files
Mar 99 Ethical Considerations and the Retention of Client Files
Apr 99 Conflicts of Interest in Corporate Representation
May 99 Unbundled Services - Assisting the Pro Se Litigant
May 99-2 Rule 1.9 - Former Client Conflicts

1997-98 Ethics Opinions

#1997-98/1 Conflict of Interest: Member of a Firm Appearing Before Governmental Board When Another Member of the Same Firm is a Member of the Board

1997 Practical Ethics Articles

Jan 97 E-Mail Messages and Defamation Claims: Avoiding Liability
Oct 97 Referral Fees: Practical Implications of Professional Rule of Conduct 1.5(f)
Nov 97 Lawyer Advertising: Million Dollar Advocate

1996-97 Ethics Opinions

#1996-97/6 Conflict of Interest: Part-time Municipal Prosecutor Representing Criminal Defendants in Courts' Other Than Where He/She Prosecutes
#1996-97/5 Conflict of Interest: Representing a Client Through Business Arrangement With For-Profit Lay Corporation
#1996-97/3 Conflict of Interest: Representation of Clients Against a Former Employer

1996 Practical Ethics Articles

Sept 96 Little White Lies

1995-96 Ethics Opinions

#1995-96/16 Formation of LLC by NH Firms for Purpose of Purchasing and Collecting Debt on Contingent Fee Basis
#1995-96/12 Referral Fees: When May They Be Paid and How May They Be Advertised
#1995-96/10 Incorporation of Mandatory Arbitration Clause into Attorney-Client Fee Agreements, as Requested by Malpractice Carrier
#1995-96/8 Collection of Fees in Diversionary Sentencing Program
#1995-96/7 Attorney-Client Privilege
#1995-96/5 Presentation of False Evidence to a Tribunal by a Third Party Non-Client
#1995-96/4 Conflicts of Interest: Litigation Against Town When Attorney Serves on the Town Planning Board and Participation in Amendments to Town Ordinance ...
#1995-96/3 Temporary Lawyers - Temporary Lawyer Placement Agency
#1995-96/1 Mailings to Potential Clients Who May Have Need of Legal Service

1994-95 Ethics Opinions

#1994-95/7 Conflicts of Interest: Obtaining Security for Payment of Attorney's Fees
#1994-95/6 Attorney/Client Relationship, Independent Professional Judgement and Conflicts Avoidance...
#1994-95/5 Candor to Tribunal: Use of Questionable Evidence for Purpose of Impeachment
#1994-95/3 Radio Call-In Program
#1994-95/2 Conflict of Interest: Personal Injury Settlements/Brokerage Referral

1994 Practical Ethics Articles

Jun 94 Inadvertent Disclosure of Confidential Materials
Dec 94 Fees Charged by Attorney Settlement Agents

1993-94 Ethics Opinions

#1993-94/22 Conflict of Interest: Multiple Representation in Personal Injury Case
#1993-94/18 Confidentiality and Conflict of Interest: Use of Lawcard to Finance Legal Fees
#1993-94/17 Conflict of Interest: Attorney Serving as Mediator in District Court ADR Program/Firm Member as District Court Special Justice
#1993-94/16 Fee Sharing: Association Staff Attorney Representing Association Members for Fees Paid in Trust
#1993-94/15 Communication With Person Represented by Counsel: Communication With Insurance Rep Without Consent of Defense
#1993-94/8 Attorney Providing Court Coverage
#1993-94/7 Candor to Tribunal: Use of Questionable Evidence in Criminal Defense
#1993-94/4 Practicing Attorney/Marital Mediator Association in Business With Non-Attorney Representation of Mediation Couple
#1993-94/2 Official: "General Counsel" to Real Estate Development Partnership Serving as Member of Municipal Governing Body

1993 Practical Ethics Articles

Feb 93 Duty to Client v. Duty to Tribunal: Juror Misconduct
Feb 93-2 Ethical Sex?
Apr 93 Fee Splitting Between Referring and Receiving Attorneys
Aug 93 A Case For an Impractical Rule
Aug 93-2 Lawyer-Client Sex: A Per Se Violation of Rule 1.7(b)
Dec 93 Control of Settlement by Third Party Paying the Lawyer's Fees

1992-93 Ethics Opinions

#1992-93/13 Representing a State Agency
#1992-93/12 Conflict of Interest: Lawyer and Real Estate Broker Who are Spouses Participating in Same Real Estate Transaction
#1992-93/11 Certification as a Specialist/Problems with Seminars
#1992-93/10 Reimbursement of Litigation Consultant's Attorney's Fees
#1992-93/9 Client Funds and Property: Real Estate Settlement Accounts
#1992-93/8 Letterhead Listing/Dual Practice
#1992-93/7 Fairness to Opposing Party and Counsel Before the Workers' Comp Appeals Board
#1992-93/6 Advertising/Solicitation: Distribution of Business Cards
#1992-93/5 Attorneys as "Partisan" Arbitrators: Insurer's Counsel Serving on Arbitration Panel in Unrelated Claim Involving Insurer
#1992-93/3 Conflicts of Interest: Office of Child Support Attorneys Providing Services to AFDC Recipients and Non-AFDC Recipients
#1992-93/2 Conflict of Interest: Lawyer Member of City Council Opposing City Employees in Court
#1992-93/1 Fee Splitting in Contingent Fee Cases With a Referring Attorney Whose License is Revoked Subsequent to the Referral

1992 Practical Ethics Articles

Feb 92 Appellate Obligations of Criminal Defense Counsel
Mar 92 Disbarred or Suspended Attorneys: Resources or Pariahs
Apr 92 Current Ethical Issues in Attorney Advertising
Oct 92 Compensation of Fact Witnesses: Rule 3.4(b) of the NH Rules of Professional Conduct
Nov 92 Law Firms and the Rules of Professional Conduct
Dec 92 Suits to Recover Workers' Comp Payments to an Injured Employee: The Impact of the Rules of Professional Conduct

1991-92 Ethics Opinions

#1991-92/16 Attorney's Duty to Obtain Trial Record
#1991-92/14 Conflicts of Interest: Appearance Before Workers' Comp Appeals Board by Members of a Firm When Another Member of the Firm Serves on the Board
#1991-92/13 Confidentiality: Responsibility to Client v. Responsibility to Tribunal
#1991-92/9 Fee Sharing: Association Staff Attorney Representing Association Members for Fees Paid to the Association
#1991-92/8 Attorney as Witness: Disqualification
#1991-92/7 Conflict of Interest: Adverse Representation
#1991-92/6 Confidentiality of Mobile Communications
#1991-92/5(b) Advertising and Solicitation: Including Name of Specific Lawyer
#1991-92/5(a) Letterhead: Use of Trade Name
#1991-92/4 Conflict of Interest: Lawyer-Official

1991 Practical Ethics Articles

Feb 91 Candor Toward the Tribunal: Duty to Inform the Court of Related Proceedings
Aug 91 Calculation of Fees When Multiple Clients are Represented

1990-91 Ethics Opinions

#1990-91/15 Contingent Fee Arrangement for a Domestic Matter
#1990-91/11 Conflict of Interest: Client Gift to a Relative of a Firm Associate (Prohibited Transactions)
#1990-91/10 Trust Funds: Application of Retainer to Final Bill
#1990-91/9 Marital Mediation: Clarification re: Certification Requirement
#1990-91/8 Solicitation/Advertising
#1990-91/5 Fees: Fixed Fee for Insurance Defense Work
#1990-91/4 Providing Legal Services on a Sliding Fee Scale Based Upon Client's Income
#1990-91/3 Donation to IOLTA of Interest Accrued on Trust Account Prior to Joining IOLTA
#1990-91/2 Donation of Legal Services for Charitable Fund Raising
#1990-91/1 Conflict of Interest: Representation Position Adverse to Former Client

1990 Practical Ethics Articles

Apr 90 Conflict of Interest In a Real Estate Transaction
Oct 90 Restrictions on Communication of Specialization in the Practice of Law: Rules of Professional Conduct 7.4

1989-90 Ethics Opinions

#1989-90/17 Conflicts of Interest/Multiple Representation of Parties in Commercial Litigation
#1989-90/15 Marital Mediation: Representing Both Parties
#1989-90/14 Division of Fees Between Lawyers
#1989-90/12 Attorney/Realtor Related Questions
#1989-90/11 LRIS Fee Sharing Arrangement
#1989-90/9 Employee Leasing - Law Firm Partners
#1989-90/4 Letterhead Listing: Elected Public Official/Firm Member
#1989-90/2 Confidentiality: Off-Site Storage of Closed Client Files
#1989-90/1 Attorney's Representation of Community Land Trusts

1989 Practical Ethics Articles

Sept 89 Whistleblowing: Attorney's Duty to Report Unethical Conduct

1988-89 Ethics Opinions

#1988-89/26 Contingency Fee Agreements in Workers' Compensation Cases
#1988-89/25 Charging Interest on Unpaid Statements
#1988-89/24 Municipal Representation: Appearances Before Town Land Use Board, Actions Against the Town or Representation of Criminal Defendants...
#1988-89/22 Conflict of Interest: Public Service
#1988-89/21 Advertising: Acceptance of Credit Cards
#1988-89/20 "Of Counsel" Relationship With Out-of-State Attorney
#1988-89/19 Confidentiality: Revealing Client Scheme to Defraud
#1988-89/18 Legal Intern Appearance Before State Appeals Board
#1988-89/17 Fee Arrangements: Union Charge for Case Settlement Services - Workers' Comp
#1988-89/16 Disposition of Unused Client Funds When Client Cannot Be Located
#1988-89/15 Conflict of Interest: Guardian Ad Litem Representation for a Civil Suit
#1988-89/14 Client/File Retention - Transfer to a New Firm
#1988-89/13 Confidentiality: Provision of Information to Funding Source
#1988-89/12 Conflicts of Interest: Appearances Before City Land Use Boards or Actions Against the City by Members of Firm When...
#1988-89/11 Conflict of Interest: Representation of Police Prosecutor
#1988-89/9 Fees: Arrangement Which Effectively Passes Costs on to a Third Party
#1988-89/8 Conflict of Interest: Lawyer-Official/Lawyer-Legislator Appearing Before Certain Agencies/Forums
#1988-89/6 Conflict of Interest: Representation of Separated Parties
#1988-89/5 Letterhead Listing - Affiliated Law Firms
#1988-89/3 Town Moderator Representation of Clients Before the Same Town Board
#1988-89/2 Letterhead Listing - Use of "Of Counsel" Designation by Inactive Bar Member

1988 Practical Ethics Articles

July 88 Client Misconduct
Aug 88 Contingent Fee Agreements

1987-88 Ethics Opinions

#1987-88/17 Fees: Responsibility of Attorney to Participate in Fee Dispute Resolution Process
#1987-88/16 Guardian Ad Litem Fees in Divorce Proceedings Involving Non-Indigent Individuals
#1987-88/15 Contingent Fees in Property Division and Custody Disputes Between Unmarried Persons
#1987-88/13 Conflict of Interest: Municipal Prosecutor Representing Criminal Defendants in same District Court
#1987-88/9 Ethical Consideration in Attorney-Fiduciary Role (Dual Capacity; Conflict of Interest; Fees)
#1987-88/8 Collection of Fees: Submission of Client Name to Credit Bureau
#1987-88/7 Conflicts of Interest: Serving on and Appearing Before a Land Use Board
#1987-88/5 Conflicts of Interest: Service as a Member of an Adjudicating Board and Attorney Within the Same Governmental Department
#1987-88/3 Marital Mediation/Consultation by Retired Attorney
#1987-88/2 Dual Practice: Attorney as a Realtor
#1987-88/1 Conflict of Interest: Appearing Before a Governmental Board by a Temporary Board Member

1987 Practical Ethics Articles

Feb 87 May Attorneys Reveal Client Confidences to Prevent Certain Criminal Acts?
Feb 87-2 The Ethical Considerations in Office Sharing
Feb 87-3 The Lawyer as Intermediary
Mar 87 Retention of Client Files
May 87 Law Firm Use of Outside Service Providers
June 87 Lawyer Fee Agreements
Aug 87 Representing the Corporation
Nov 87 Conflict of Interest: Former Client

1986-87 Ethics Opinions

#1986-87/14a Advertising: Direct Mail
#1986-87/11 Payment of Fees to Lawyer Referral Service
#1986-87/10 Part-Time/Of Counsel Working Agreements: Potential Conflicts
#1986-87/8 Client Files
#1986-87/7 Conflict of Interest - New Client and Former Client
#1986-87/4 Fees, Costs and Expenses Secured by Mortgage Instruments
#1986-87/3 Retention of Pro Bono/LRIS Records
#1986-87/2 Representing Both Parties in Marital Mediation
#1986-87/1 Retention of File Notes When Turning a File Over to Client or Subsequent Counsel

1986 Practical Ethics Articles

Mar 86 Attorney Advertising: A Major Transition
Apr 86 Attorneys' Liens
May 86 Part-Time Judge Conflicts
July 86 Delay, Frivolousness and Harassment
Aug 86 Client Solicitation
Aug 86-2 New Rules of Professional Conduct Raise Issues of Attorney Supervision, Use of Nonlaywer Personnel
Sept 86 New Rules Stress Attorney's Duty to Avoid Conflicts of Interest
Sept 86-2 Trial Publicity Under Rule 3.6 of the NH Rules of Professional Conduct
Sept 86-3 When a Law Firm Splits Up

1985-86 Ethics Opinions

#1985-86/9 Advertising: Self-Designation of Fields of Practice in a Lawyer Directory
#1985-86/7 Advertising: Signs/Letterhead
#1985-86/6 Candor Toward the Tribunal: Client Intent to Commit Perjury
#1985-86/5 Dissolution of Professional Association
#1985-86/4 Client Confidences: Obligation to Retain/Relinquish Documents
#1985-86/3 Insurance Counsel: Acceptance of a Referral From an Insurance Company
#1985-86/2 Advertising: Multiple Jurisdictions
#1985-86/1 Client Confidences: Obligation to Protect or Disclose

1984-85 Ethics Opinions

#1984-85/22 Payment of Assigned Counsel Fees by Former Indigent Criminal Defendant
#1984-85/19 Out-of-State Counsel: NH Practice/Fee Splitting
#1984-85/18 Municipal Representation Conflicts
#1984-85/17 Disposition of Stolen Property
#1984-85/16 Spouse Attorneys
#1984-85/15 INQUIRY - Attorneys' Liens
#1984-85/14 Preservation of Client Confidences: Former Lawyer as Witness
#1984-85/12 Client Confidences: Obligation to Protect/Disclose (Probation Violation)
#1984-85/11 Disposition of Client Funds When Client Cannot Be Located
#1984-85/10 Municipal Representation Conflicts: County Attorney/City Councilor
#1984-85/9 Dual Professions: Attorney - Realtor
#1984-85/7 Contingency Fee: Extension of Fee Agreement to Medical Consulting Service
#1984-85/5 Attorney - Client Privilege
#1984-85/4 Taking Statements From an Opposing Party
#1984-85/3 Municipal Representation Conflicts: "Of Counsel" Conflict
#1984-85/2 Referrals to a Law School Clinic From a State Agency
#1984-85/1 Credit Cards: Use for Payment of Legal Fees


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