Does a New Hampshire defense lawyer have a conflict if the lawyer also represents a nonparty the defendant names as a DeBenedetto apportionment-of-fault party?
Apply this to your situation
This page answers the general question as of 2018. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Under the New Hampshire Supreme Court's decision in DeBenedetto v. C.L.D. Consulting Engineers, Inc., a civil defendant who wants the jury to apportion fault to a nonparty must disclose that nonparty (a "DeBenedetto party") before trial. The opinion addresses the conflict that arises when the defendant's own lawyer also represents a person the defendant identifies as a potential DeBenedetto party.
The opinion concludes that the disclosure itself does not make the DeBenedetto party a party to the litigation, but a Rule 1.7(a) concurrent conflict still arises, on two grounds: the defendant and the DeBenedetto party are directly adverse to one another, and representing both creates a significant risk that the lawyer's responsibilities to one client will materially limit the representation of the other. Because pursuing an apportionment defense against a current client is a concurrent conflict, both clients' informed written consent is required before any dual representation continues.
On waivability, the Committee divided. All members agreed that some such conflicts are nonwaivable, because on the facts no lawyer could form an objectively reasonable belief that competent and diligent representation could be provided to each client. Some members would treat the conflict as never waivable; others would not adopt a per se rule and would allow waiver where sophisticated clients knowingly make an informed choice. The opinion stresses that the test for waivability is objective reasonableness (a lawyer's subjective belief is necessary but not sufficient) and that whether a client's informed consent is adequate is a fact-specific inquiry turning on factors like the breadth and specificity of the waiver, the quality of the conflicts discussion, the nature of the conflict, the client's sophistication, and the interests of justice.
In practice
The opinion holds that, under New Hampshire's Rule 1.7, a lawyer who represents a civil defendant cannot pursue a DeBenedetto apportionment defense against a person the lawyer also represents without recognizing a concurrent conflict requiring both clients' informed written consent. It establishes that some such conflicts are nonwaivable and that waivability, where possible at all, depends on an objectively reasonable belief that the lawyer can competently and diligently represent each client, plus the other Rule 1.7(b) requirements. The Committee did not resolve whether a per se bar on waiver applies, and advises caution.
Common questions
Q: Does naming a client as a DeBenedetto party create a conflict?
A: Yes. The opinion concludes a Rule 1.7(a) concurrent conflict arises because the defendant and the potential DeBenedetto party are directly adverse and the dual representation risks materially limiting the lawyer's representation of each.
Q: Can the lawyer keep representing both with the clients' consent?
A: Only if the conflict is waivable and consent is proper. The opinion requires both clients' informed written consent and an objectively reasonable belief that the lawyer can competently and diligently represent each; the Committee split on whether such consent is ever sufficient here.
Q: Is a lawyer's own belief that they can handle both representations enough?
A: No. The opinion states the lawyer's subjective belief is necessary but not sufficient; the test for waivability is objective reasonableness.
Q: When is a DeBenedetto conflict nonwaivable?
A: The opinion says a conflict is nonwaivable when, on the particular facts, no lawyer could form an objectively reasonable belief that competent and diligent representation could be provided to each affected client.
Background and rules framework
The opinion interprets New Hampshire Rule 1.7 (conflicts of interest), specifically the concurrent-conflict standard in 1.7(a) and the conditions for waiver in 1.7(b), in the context of New Hampshire's apportionment-of-fault scheme. The underlying procedure comes from RSA 507:7-e and the Supreme Court's decision in DeBenedetto v. C.L.D. Consulting Engineers, Inc., which requires pretrial disclosure of nonparties to whom a defendant seeks to apportion fault.
Citations and references
Rules of Professional Conduct:
- MR 1.7 / NH Rule 1.7(a), (b) (concurrent conflicts of interest; waiver)
Statutes:
- RSA 507:7-e (apportionment of fault)
Cases:
- DeBenedetto v. C.L.D. Consulting Engineers, Inc., 153 N.H. 793 (2006), pretrial disclosure of apportionment nonparties
See also
- ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
- ABA Formal Op. 05-436: Informed Consent to Future Conflicts of Interest
- ABA Formal Op. 05-435: Lawyer Representing an Insurer Adverse to the Insurer's Insured
Source
- Landing page: https://www.nhbar.org/ethics/opinion-2017-18-02
- Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2019/11/14142648/2017-18-02-REFORMATTED-Conflicts-and-DeBenedetto-Disclosures.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
NEW HAMPSHIRE BAR ASSOCIATION
Conflicts Arising from DeBenedetto Disclosures
Ethics Committee Advisory Opinion #2017-18/2
ABSTRACT:
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.
ANNOTATIONS:
A defendant in a civil action and a potential DeBenedetto party in that action are directly adverse
to one another, so that the representation of both these parties by one lawyer gives rise to a
concurrent conflict of interest.
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The representation of a defendant in a civil action and a potential DeBenedetto party in that
action by the same lawyer creates a significant risk that the lawyer’s responsibilities to one client
will materially limit the lawyer’s representation of the other client, giving rise to a concurrent
conflict of interest.
Because the pursuit of a DeBenedetto apportionment defense against a current client creates a
concurrent conflict of interest, the informed written consent of both clients is necessary before
the dual representation may proceed.
Where a lawyer cannot reasonably conclude that the lawyer will be able to provide competent
and diligent representation to each client affected by a concurrent conflict of interest, the lawyer
may not seek a written waiver of the conflict.
A lawyer’s subjective belief that he or she can provide competent, diligent representation to both
clients is a necessary, but not sufficient, condition of seeking written waiver of a concurrent
conflict of interest; rather, the test for waivability is one of objective reasonableness.
Even if a lawyer can form the objectively reasonable belief that he or she can provide competent,
diligent representation to both clients affected by a concurrent conflict of interest, the lawyer
must ensure that the other requirements for a waiver of the conflict are present before proceeding
with the dual representation.
What is necessary for a client to provide informed consent to the waiver of a concurrent conflict
of interest is a fact-specific, case-by-case inquiry that hinges on a number of factors, including
but not limited to the breadth and specificity of the waiver, the quality of the conflicts discussion
between the lawyer and the client, the nature of the conflict, the sophistication of the client, and
the interests of justice.
BACKGROUND
In 1989, New Hampshire passed a law adopting several liabilities for those parties “less than 50
percent at fault.” See RSA 507:7-e, I(b). In 2006, the New Hampshire Supreme Court held that a
defendant may request that the jury apportion fault for the plaintiff’s injuries to a person or entity
not before the court. DeBenedetto v. C.L.D. Consulting Engineers, Inc., 153 N.H. 793 (2006).
A defendant who intends to request such apportionment, however, must disclose the identity of
any nonparty to whom it hopes to apportion fault (“DeBenedetto party”) in advance of trial.
Since it may require investigation and discovery to determine the identity of a DeBenedetto
party, the court will ordinarily allow the defendant a number of months before the disclosure is
due.
The mere fact of the disclosure does not result in the DeBenedetto party becoming a party to the
pending litigation (although the plaintiff may later seek to amend the complaint to add a
disclosed DeBenedetto party as a defendant). After naming a DeBenedetto party, a defendant
bears the burden of establishing that the DeBenedetto party caused or contributed to the
plaintiff’s injuries; if the defendant presents sufficient evidence at trial, the jury may be asked to
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determine the percentage of fault attributable to the DeBenedetto party. This apportionment
alone, however, does not result in any financial liability on the part of the DeBenedetto party.
While DeBenedetto parties are frequently identified at the outset of litigation, the identity of a
potential DeBenedetto party is sometimes not known until the defense attorney has invested a
significant amount of time in the case. Sometimes, the potential DeBenedetto party may turn out
to be an existing client of the defense attorney or the attorney’s firm in an unrelated matter.
This opinion will tackle two questions. First, if an attorney who represents a defendant in
ongoing litigation identifies a potential DeBenedetto party that is another current client, does that
create a concurrent conflict of interest under Rule 1.7(a)? Second, if that does create a concurrent
conflict of interest, is that conflict waivable under Rule 1.7(b)?
ANALYSIS
I. CONCURRENT CONFLICT OF INTEREST
NHRPC Rule 1.7(a) provides the definition of concurrent conflicts.
A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
The language of NHRPC Rule 1.7(a) is identical to the Model Rules of Professional Conduct
(ABA 2004) (“Model Rules”). These two alternative avenues by which a concurrent conflict may
arise are frequently referred to as “direct adversity” and “material limitation” conflicts,
respectively.
Both direct adversity and material limitation conflicts arise due to the nature of a DeBenedetto
apportionment defense. Comment 6 to the Model Rules provides some assistance in determining
whether the representation of the original defendant is directly adverse to the DeBenedetto party
under Rule 1.7(a)(1). In particular, Comment 6 provides in part:
Loyalty to a current client prohibits undertaking representation directly adverse to that
client without that client's informed consent. Thus, absent consent, a lawyer may not act
as an advocate in one matter against a person the lawyer represents in some other matter,
even when the matters are wholly unrelated.
In naming a DeBenedetto party, a lawyer is not seeking some relief from (or seeking to avoid
giving damages or other relief to) the DeBenedetto party. Yet it is unquestionable that the lawyer
who names a DeBenedetto party in ongoing litigation becomes “an advocate” against that party.
As the New Hampshire Supreme Court has explained, “a defendant who raises a non-litigant
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apportionment defense essentially becomes another plaintiff who must seek to impose liability
on a non-litigant just as a plaintiff seeks to impose it on him.” State v. Exxon-Mobil Corp., 168
N.H. 211, 259 (2015) quoting Goudreault v. Kleeman, 158 N.H. 236, 256 (2009).
The naming of a current client as a DeBenedetto party also raises “material limitation” conflicts
under Rule 1.7(a)(2), since the lawyer’s duty of loyalty to the DeBenedetto party/client will
frequently “materially limit” that lawyer’s ability to pursue a DeBenedetto apportionment
defense on behalf of the lawyer’s litigation client.
The Committee found only one other state ethics opinion that addressed DeBenedetto-type
conflicts, Arizona Ethics Opinion 03-04 (2003). That opinion dealt with a different version of
Rule 1.7. It concluded:
If the applicable statute of limitations has run, identifying a client as a non-party at fault
in another client's litigation, pursuant to Ariz. R. Civ. P. 26(b)(5), does not necessarily
establish a conflict of interest under ER 1.7 because a non-party at fault cannot be
assessed liability. A.R.S. § 12-2506(B). However, if the statute of limitations has not run,
naming a client as a non-party at fault does create a conflict under ER 1.7, because it
identifies the client as a potential defendant to other parties, who may then amend the
complaint to add the client as a party.
Whether the conflict is waivable under ER 1.7(b) will depend on such facts as whether
the statute of limitations has run, the legal sophistication of the affected client, and the
ancillary effects of naming the client as a non-party at fault. If the conflict is waivable,
then pursuant to ER 1.7(b)(2), the client named as a non-party at fault must give informed
consent to the waiver.
This Committee does not agree that the absence of potential liability (due to the running of the
statute of limitations for example) disposes of the broader conflict question. When seeking to
deflect fault by apportionment to the DeBenedetto party, “the defendant carries the burdens of
production and persuasion.” State v. Exxon-Mobil Corp., supra. Thus, even if the DeBenedetto
party is not joined as a formal defendant by the plaintiff or is immune from liability, the lawyer
must anticipate the need to pursue litigation that is adverse to the interests of the DeBenedetto
party in other ways.
The lawyer may, for example, need to cross examine the DeBenedetto party/client in order to
establish the apportionment defense. As discussed in comments to the ABA model rules, this can
lead to direct adversity conflicts under NHRPC 1.7(a)(1):
… [A] directly adverse conflict may arise when a lawyer is required to cross-examine a
client who appears as a witness in a lawsuit involving another client, as when the
testimony will be damaging to the client who is represented in the lawsuit.
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ABA Comment 6 to NHRPC Rule 1.7. These circumstances can also give rise to a “material
limitation” conflict under NHRPC 1.7(a)(2), since the lawyer’s ability to cross-examine the
DeBenedetto client aggressively on behalf of his or her litigation client may be undermined by
his or her concurrent fiduciary duties to (and desire to maintain an amicable relationship with)
the DeBenedetto client.
To carry the burden of proof under RSA 507-7:e and successfully argue that liability should be
apportioned to a non-party client, trial counsel will also likely be required to seek third-party
discovery from that client, forcing the client to incur the costs of responding to written discovery.
Seeking discovery from that client can also present the very same situation alluded to in the ABA
commentary cited above, requiring the attorney to cross-examine his or her non-party client on
behalf of the other client. Cf. ABA Standing Comm. on Ethics & Prof’l Resp., Lawyer
Examining a Client as an Adverse Witness, or Conducting Third Party Discovery of the Client,
ABA Formal Op. 92-367, at 5-6 (Oct. 16, 1992) (discussing nature of conflicts presented by this
situation). And if the non-party client does not want to relinquish that discovery, the attorney
may have to seek court intervention to obtain it — in the process becoming a direct litigation
opponent of that client.
In addition, to apportion liability successfully to a DeBenedetto party, an attorney will frequently
need to develop and disclose expert testimony regarding the DeBenedetto client’s liability for,
and causation of, the injuries at issue in the litigation. The DeBenedetto party will likely suffer
damage, such as lost time for its employees and expenses for representation, and may even suffer
damage to reputation in certain cases. For all these reasons, the Committee has concluded that
the two clients will be directly adverse under NHRPC Rule 1.7(a)(1), and that the litigation
lawyer will often have a “material limitation” conflict under NHRPC Rule 1.7(a)(2) due to his or
her conflicting responsibilities to the client that is targeted through the DeBenedetto defense and
the client asserting that defense. See also Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339,
1345 (9th Cir. 1981) (“specific adverse effect need not be demonstrated to trigger [the
predecessor of Rule 1.7] if an attorney undertakes to represent a client whose position is adverse
to that of a present client”).
Accordingly, this Committee concludes that the representation of the original defendant in the
pursuit of a DeBenedetto apportionment defense will create concurrent conflicts of interest that
must be resolved before the representation is undertaken and/or continued.
II. WAIVER OF CONFLICT
The existence of the concurrent conflict of interest does not necessarily end the analysis. NHRPC
Rule 1.7(b) provides an explicit exception to such conflicts.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a),
a lawyer may represent a client if:
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(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Because the pursuit of a DeBenedetto defense against a current client will create concurrent
conflicts under Rules 1.7(a)(1-2), both the litigation client and the DeBenedetto client would
have the power to refuse to waive the concurrent conflicts and thereby prohibit the
representation. Before reaching the mechanics of a valid waiver, however, the Ethics Committee
devoted substantial time to the preliminary and more difficult question of whether the lawyer
may even, consistent with Rule 1.7(b), seek conflict waivers from both clients that would allow
the attorney to undertake or continue the litigation.
The Committee was unable to reach consensus as to whether DeBenedetto conflict waivers are
permissible. Some members of the Committee felt strongly that in a DeBenedetto scenario, a
lawyer could not reasonably conclude that he or she could “provide competent and diligent
representation to each affected client,” and that waivers of such conflicts therefore must be
categorically barred under Rule 1.7(b)(1). Other members of the Committee felt equally strongly
that it would be inappropriate to endorse a per se rule barring such waivers. All members of the
Committee agreed, however, that at least in some situations, DeBenedetto conflicts are
nonwaivable.
A. AT LEAST IN SOME SITUATIONS, THE CONFLICTS INHERENT IN THE PURSUIT OF A
DEBENEDETTO DEFENSE ON BEHALF OF ONE CLIENT AGAINST ANOTHER CLIENT WILL NOT
BE WAIVABLE.
As set forth in NHRPC Rule 1.7(b)(1), a lawyer may seek informed consent from each of the
affected clients for continued representation under a concurrent conflict of interest only if “the
lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client”. The ABA’s comments to Model Rule of Professional
Conduct 1.7, Rule 1.7(b)(1) explain that continued representation is prohibited if “in the
circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide
competent and diligent representation (to each affected client)”. ABA Model Rules of
Professional Conduct 1.7, cmt. 15. In such circumstances, “the lawyer involved cannot properly
ask for” a client to waive the conflict “or provide representation on the basis of the client’s
consent.” Id. cmt. 14.
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The Committee recognizes that conflicts can arise in a wide variety of factual circumstances, and
the general rule is that determining waivability of a conflict requires a case-by-case analysis of
the particular circumstances presented by each case. See NHRPC Rule 1.7, Ethics Committee
Comment. However, the Committee cautions attorneys facing DeBenedetto conflicts that there
are certain types of situations where pursuit of a waiver of a DeBenedetto conflict will not be
possible (and will frequently be unwise from a risk-management perspective).
In this regard, the Committee’s opinion is guided by the “harsh reality” test that has been applied
in New Hampshire in this Committee’s previous ethics opinions for almost thirty years. Id. This
test is a rigorous one, calling for an attorney’s decision to continue representation in the face of a
concurrent conflict to be scrutinized retrospectively after something goes wrong in the litigation.
Under this test, the subjective belief of an attorney that he or she could provide competent,
diligent representation to both clients, although required under Rule 1.7(b)(1) before seeking a
waiver, does not determine the viability of the waiver if challenged by either client after-the-fact
(in malpractice litigation or disciplinary proceedings, for example). Rather, the court, jury or
Professional Conduct Committee must “look back at the inception of the representation” and
determine whether a “disinterested lawyer” would “seriously question the wisdom of . . .
requesting the client’s consent to [the] representation or question whether there had been full
disclosure to the client prior to obtaining the consent.” Id., quoting from N.H. Ethics Opinion
1988-89/24. The test, therefore, is one of objective reasonableness.
Some on the Committee believe that there are no circumstances in which an attorney can develop
the objectively reasonable belief necessary to request conflict waivers in order to develop a
DeBenedetto apportionment case on behalf of one of his or her current clients against another
current client. As discussed previously, the areas of adversity and antagonism that can arise in
such situations are wide-ranging, involving compelling the DeBenedetto party client to incur
litigation fees, the pursuit of adverse discovery against the DeBenedetto party, the development
of expert witnesses to testify against the DeBenedetto party on issues of liability and causation,
questions concerning the use of protected or confidential information against the DeBenedetto
party, the potential for motions to disqualify the litigation attorney by lawyers retained by the
DeBenedetto party, reputational harm to the DeBenedetto party, and litigation exposure if the
plaintiff chooses to add the DeBenedetto party as a co-defendant. Given these and other
significant areas of potential adversity, which create both “direct adversity” and “material
limitation” conflicts for the trial attorney, some members of the Ethics Committee believe that a
“disinterested lawyer” would seriously question an attorney’s decision to undertake or continue
the representation of a civil defendant in a case in which a meritorious DeBenedetto claim
against another current client is available-–and that a waiver of the conflict cannot and should
not be sought, i.e. that the conflicts are non-waivable.
Further, even if the objectively reasonable belief necessary to approach clients for conflict
waivers can be formed, it is frequently difficult to predict the types of conflict that may arise in
the future as the DeBenedetto apportionment defense is pursued. When conflict waivers are
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challenged, it can often be the case that the conflict that has caused harm has not been set forth
and explained in the conflict waiver letter—undermining the lawyer’s argument that “informed
consent” was obtained.
As discussed in more detail in the following section, however, others on the Committee differ
significantly and believe that waiver can be appropriate in DeBenedetto situations, as well as
other direct adversity conflict cases, if the clients are sophisticated and knowingly make an
informed choice to waive the conflict.
B. THE VIEW THAT UNDER LIMITED CIRCUMSTANCES, INFORMED CONSENT WAIVERS MAY
BE PERMISSIBLE.
Some on the Committee believe that there may be circumstances in which a lawyer may,
consistent with Rule 1.7(b), seek a waiver of DeBenedetto concurrent conflicts, and undertake or
continue in the litigation if informed consent is provided by both clients. They point to the
language of NHRPC Rule 1.7(b), which explicitly allows an attorney to seek waiver, provided
the requirements set forth in the Rule are satisfied.
Those members of the Committee argue that there are many circumstances that could lead
rational DeBenedetto parties and litigation clients to consent to waiver. As the leading treatise on
professional responsibility states:
Many clients do consent in these [direct adversity] situations. One reason is simply that it
is not worth the trouble to object, where no real detriment appears. A large business may
have dozens or hundreds of cases pending at one time, and they are handled as a matter of
business routine. If the law firm seeking consent is denied consent, some other law firm
will quickly step in, and little will have been gained for significant interests of the
company. … Another reason is that a company that has had good experience dealing with
a law firm as its counsel may conclude that it is better to be sued by lawyers who are
competent and trustworthy than unknown entities who might use questionable litigation
tactics or be unreasonable during settlement negotiations. Of course, this relaxed attitude
on the part of clients is unlikely to hold in major “bet the company” litigation, or where
fraud or other serious wrongdoing is alleged.
Hazard, Hodes and Jarvis, The Law of Lawyering (4th ed.), § 12.32, p. 12-87 (Wolters Kluwer
2018).
The Restatement also suggests that there are situations where waiver is permissible:
Decisions holding that a conflict is nonconsentable often involve facts suggesting that the
client, who is often unsophisticated in retaining lawyers, was not adequately informed or
was incapable of adequately appreciating the risks of the conflict. Decisions involving
clients sophisticated in the use of lawyers, particularly when advised by independent
counsel, such as by inside legal counsel, rarely hold that a conflict is nonconsentable.
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Restatement (Third) of the Law Governing Lawyers § 122, comment g(iv) (references to other
comments omitted).
While the use of independent, outside counsel to advise either client on the significance of the
concurrent conflicts may be an effective means of ensuring that the clients provide “informed
consent”, it does not eliminate the lawyer’s independent responsibility under Rule 1.7(b)(1) to
analyze the conflicts he or she faces and determine whether “competent and diligent
representation" of each affected client is possible.
Some on the Committee also felt that a per se rule barring any waiver in such situations could
interfere unnecessarily with the rights of lawyer and client. The following case summarizes the
concerns shared by those members of the Committee:
[An] inflexible application of a professional rule is inappropriate because frequently it
would abrogate important societal rights, such as the right of a party to his counsel of
choice and an attorney's right to freely practice her profession. A court must take into
account not only the various ethical precepts adopted by the profession but also the social
interests at stake. Among the factors that we have considered in the past are "whether a
conflict has (1) the appearance of impropriety in general, or (2) a possibility that a
specific impropriety will occur, and (3) the likelihood of public suspicion from the
impropriety outweighs any social interests which will be served by the lawyer's continued
participation in the case."
FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1314 (5th Cir. 1995).
C. EVEN IF WAIVER IS PERMISSIBLE UNDER RULE 1.7(B)(1), AN ATTORNEY SHOULD EXERCISE
CAUTION.
To determine if a waiver is permissible under Rule 1.7(b), the lawyer must carefully comply with
all four sections of the rule. Section (b)(2), barring waivers that are “prohibited by law,” will not
apply in most cases. Section (b)(3), barring waivers of conflicts that arise among parties to “the
same litigation or proceeding,” will not be implicated as long as the lawyer does not offer
representation to the DeBenedetto party if that party is brought into the current litigation by the
plaintiff. The other two sections will be dealt with separately below.
INFORMED CONSENT. Section 1.7(b)(4) requires that the client give informed consent in writing.
“A precise definition of 'informed consent' and 'full disclosure' is difficult, necessitating a case-
by-case factual analysis.” Celgene Corp. v. KV Pharm. Co., 2008 U.S. Dist. LEXIS 58735, 26-27
(D.N.J. 2008) (holding an advance waiver ineffective). Courts and treatises have set demanding
standards for obtaining informed consent.
Determining whether a client provided adequate informed, written waiver of a
representational conflict is a fact-specific inquiry, and the courts consider, among other
things, the breadth of the waiver, whether it waived a current conflict or whether it was
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intended to waive all conflicts in the future, the quality of the conflicts discussion
between the attorney and the client, the specificity of the waiver, the nature of the actual
conflict, the sophistication of the client, and the interests of justice. The requirements for
full disclosure, for purposes of a client's consent to a conflict, turn on the sophistication
of the client, whether the lawyer is dealing with inside counsel, the client's familiarity
with the potential conflict, the longevity of the relationship between the client and the
lawyer, the legal issues involved, and the ability of the lawyer to anticipate the road that
lies ahead if the conflict is waived.
32 Am. Jur. 2d Federal Courts § 157.
REASONABLE BELIEF. In addition to the need for informed consent, Section 1.7(b)(1) requires
that the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client. Under this section, as discussed above, there will clearly
be some conflicts that are nonconsentable. ABA Model Rule 1.7, Comment 14.
Consentability is typically determined by considering whether the interests of the clients
will be adequately protected if the clients are permitted to give their informed consent to
representation burdened by a conflict of interest. Thus, under paragraph (b)(1),
representation is prohibited if in the circumstances the lawyer cannot reasonably
conclude that the lawyer will be able to provide competent and diligent representation to
both clients.
Id., Comment 15.
The Restatement offers a similarly cautious view of consentability.
Concern for client autonomy generally warrants respecting a client's informed consent. In
some situations, however, joint representation would be objectively inadequate despite a
client's voluntary and informed consent. … The general standard stated in Subsection
(2)(c) assesses the likelihood that the lawyer will, following consent, be able to provide
adequate representation to the clients. The standard includes the requirements both that
the consented-to conflict not adversely affect the lawyer's relationship with either client
and that it not adversely affect the representation of either client. In general, if a
reasonable and disinterested lawyer would conclude that one or more of the affected
clients could not consent to the conflicted representation because the representation
would likely fall short in either respect, the conflict is non-consentable.
Restatement, supra, at comment g(iv).
HARSH REALITY. The Restatement’s standard is akin to the Harsh Reality Test, described above.
See Ethics Committee Formal Opinion #1988-89/24. The Committee wishes to underscore that
while pursuit of waivers may be permissible in limited circumstances, New Hampshire courts
and disciplinary authorities will likely assess the adequacy of the explanation and disclosure of
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the concurrent conflicts retrospectively under the “harsh reality test” — a test that may be
difficult to meet if the conflicts ultimately are the arguable cause of either an unsatisfactory
result, or unexpected injuries, for the litigation client or the DeBenedetto client.
Since in practice, it can be difficult to determine whether a lawyer can meet the requirements of
Rules 1.7(b)(1) and 1.7(b)(4), one commentator has suggested a test.
An informed conflict waiver must be rejected as incompetent if limitations on the means
or procedures by which the attorney pursues the matter caused by the conflict of interest
are likely to defeat the client's objectives for the representation. In the subsections that
follow, we will elaborate on the core elements of the proposed test: (1) the identification
of client objectives; (2) the limits on the means that can be undertaken by counsel as a
result of the conflict; and (3) the “likely to defeat” standard.
What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent, 65
Rutgers L. Rev. 109, 138 (2012). See also When Waiver Should Not Be Good Enough: An
Analysis of Current Client Conflicts Law, 33 Willamette L. Rev. 145 (1997).
III. CONCLUSION
As set forth above, this Committee concludes that a concurrent conflict of interest under Rule
1.7(a) arises when an attorney, representing one client in civil litigation, attempts to apportion
liability to another current client under RSA 507:7-e and DeBenedetto.
All members of the Committee agree that, at least in some circumstances, these types of conflicts
are nonwaivable under Rule 1.7(b). Some members of the Committee take an even broader view:
they would conclude that such conflicts could never be waived. Others on the Committee
conclude that there may be circumstances in which the pursuit of informed consent is
permissible, including situations in which the client(s) receive independent counsel or advice
prior to a decision on waiver of the concurrent conflicts; cases where the party waiving is
sophisticated in legal matters or business issues; cases in which liability/damages apportioned to
the DeBenedetto party/client is not likely to be significant; cases in which the DeBenedetto claim
is unlikely to require discovery, depositions or litigation costs for the DeBenedetto party; and
other similar situations.
Ultimately, the areas of disagreement among the Committee’s members should not detract from
the central message of this Opinion: DeBenedetto conflicts are real and serious. When
encountering them, members of the bar should proceed with caution, ensuring that they have
fully complied with their obligations under the Rules of Professional Conduct and do not run
afoul of Rule 1.7.
NH RULES OF PROFESSIONAL CONDUCT:
NHRPC 1.7(a)(1)
NHRPC 1.7(a)(2)
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NHRPC 1.7(b)
SUBJECTS:
Concurrent Conflicts of Interest
Waivability of Conflicts of Interest
• By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its June
28, 2018 Annual Meeting.
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