Under the New Hampshire Supreme Court’s opinion in DeBenedetto v. C.L.D. Consulting Engineers, Inc., 153 N.H. 793 (2006), a civil defendant who intends to request apportionment of fault to a nonparty must disclose the identity of any such nonparty (“DeBenedetto party”) prior to trial. Although the mere fact of this disclosure does not result in the DeBenedetto party becoming a party to the pending litigation, a concurrent conflict of interest under Rule 1.7(a) will arise if the defendant’s lawyer also represents a potential DeBenedetto party. This is because the defendant and the DeBenedetto party are directly adverse to one another, and because the joint representation of both the defendant and the DeBenedetto party creases a significant risk that the lawyer’s responsibility to one client will materially limit the lawyer’s representation of the other client.
The Ethics Committee was unable to reach a consensus as to whether conflicts arising from DeBenedetto disclosures could ever be waived under Rule 1.7(b). All members of the Committee agree that there are some cases in which such conflicts are nonwaivable because, under the particular facts and circumstances of the case, no lawyer could form an objectively reasonable belief that he or she could provide competent and diligent representation to each affected client. Some on the Committee believe that there are no circumstances in which an attorney can develop that objectively reasonable belief. Other members of the Committee believe that it would be inappropriate to endorse a per se rule barring such waivers and believe that waiver can be appropriate in DeBenedetto situations if the clients are sophisticated and knowingly make an informed choice to waive the conflict. In any case, members of the bar should proceed with caution when encountering such situations, ensuring that they have fully complied with their obligations under the Rules of Professional Conduct and do not run afoul of Rule 1.7.
Ethics Committee Advisory Opinion #2017-18/02 by the NHBA Ethics Committee. This opinion was submitted for publication to the NHBA Board of Governors at its June 28, 2018 meeting.