2009

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.”

A lawyer representing a client who needs an interpreter should, ideally, engage the services of a qualified, impartial third party to ensure compliance with Rule 1.1, Rule 1.4 and Rule 1.6.

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.

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.

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.

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).