Can a New Hampshire public prosecutor accept a referral fee from a private lawyer for a matter that grew out of the prosecutor's work as a prosecutor?

Plain-English summary

The opinion concludes that a New Hampshire public prosecutor is not likely to be able to ethically receive a referral fee arising from a matter in which the prosecutor participated in the criminal prosecution. It begins with statutory limits: RSA 7:6-d bars the Attorney General's office attorneys from private practice or accepting fees other than salary, and RSA 7:34-a et seq. imposes similar prohibitions on seven named County Attorneys, while three counties (Merrimack, Grafton, Hillsborough) had no such statutory bar at the time. The opinion also points to statutes barring public officials from accepting gifts or improper compensation (RSA 15-B:3) and RSA 640:4, which prohibits a public servant from accepting a pecuniary benefit in return for exercising discretion, noting a referral fee could be captured as such a benefit.

Turning to the Rules, the opinion explains that Rule 1.11(d)(1) subjects lawyers currently serving as public officers to the conflict rules in Rule 1.7 absent a law expressly exempting them, and the Committee is unaware of any New Hampshire law exempting prosecutors. Under Rule 1.7(a)(2), a concurrent conflict exists where a significant risk that the representation will be materially limited by a third person's interests or the lawyer's personal interest. Here the prosecutor's client is the State of New Hampshire, and the prosecutor carries the responsibility of a minister of justice under Comment 1 to Rule 3.8. The prosecutor's personal interest in the referral fee materially limits that duty.

On waiver, the opinion finds Rule 1.7(b) problematic. It is unclear who could give informed consent on behalf of the State, each referral would need its own waiver given the unique issues in each prosecution, and the Committee believes such a conflict would be waivable, if at all, only in rare and extraordinary circumstances which this scenario does not present. The Committee concludes that referral fees in this scenario are a sufficiently pernicious practice that, given the prosecutor's unique role, the conflict should be unwaivable.

In practice

The opinion holds that a New Hampshire public prosecutor cannot ethically take a referral fee for a matter arising from the prosecutor's prosecutorial work. The bar rests on Rule 1.7(a)(2): the prosecutor's personal financial interest materially limits the duty owed to the State and the role of minister of justice (Rule 3.8), and Rule 1.11(d)(1) keeps the prosecutor subject to the conflict rules. The opinion treats the conflict as effectively unwaivable and notes the arrangement may independently violate statutes governing the Attorney General's office and County Attorneys (RSA 7:6-d, 7:34-a et seq.) and prohibitions on benefits to public officials (RSA 15-B:3, RSA 640:4).

Common questions

Q: Can a New Hampshire prosecutor take a referral fee from a private lawyer?

A: Not for matters arising from the prosecutor's work. The opinion concludes a prosecutor is not likely able to ethically receive a referral fee arising from a matter the prosecutor participated in prosecuting.

Q: Why is a referral fee a conflict for a prosecutor?

A: Under Rule 1.7(a)(2), the prosecutor's personal interest in the fee creates a significant risk of materially limiting the prosecutor's duty to the State and the role of a minister of justice described in Comment 1 to Rule 3.8.

Q: Could the prosecutor just get the conflict waived?

A: The opinion treats waiver as unavailable here. It is unclear who could consent for the State, each referral would need its own waiver, and the Committee concludes the conflict should be unwaivable given the prosecutor's unique role.

Q: Are there laws beyond the ethics rules that bar this?

A: Yes. The opinion cites RSA 7:6-d and RSA 7:34-a et seq. (limits on AG and County Attorney private practice) and RSA 15-B:3 and RSA 640:4 (prohibitions on gifts and pecuniary benefits to public officials and servants).

Background and rules framework

The opinion interprets New Hampshire Rule 1.7 (concurrent conflicts of interest, especially the personal-interest material-limitation prong of 1.7(a)(2) and the waiver conditions of 1.7(b)), Rule 1.11(d)(1) (current government officers and employees subject to the conflict rules), and Rule 3.8 with its Comment 1 framing the prosecutor as a minister of justice. It also reads several New Hampshire statutes governing compensation to public officials and prosecutors.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NH Rule 1.7(a)(2), (b) (concurrent conflicts; personal interest; waiver)
• MR 1.11 / NH Rule 1.11(d)(1) (current public officers subject to conflict rules)
• MR 3.8 / NH Rule 3.8, Comment 1 (prosecutor as minister of justice)

Statutes:

• RSA 7:6-d (Attorney General office attorneys barred from private practice)
• RSA 7:34-a et seq., 7:34-g (County Attorney limits)
• RSA 15-B:1, 15-B:3 (gifts to public officials)
• RSA 640:4 (pecuniary benefit to a public servant)

Other opinions cited:

• NH Ethics Committee Formal Opinion 1997-98/1, Member of a Firm Appearing Before a Governmental Board When Another Member Is on the Board

See also

• NH Bar Ethics Op. 2021-22/01: Inactive Lawyers and Referral Fees
• ABA Formal Op. 469: Prosecutors and Debt Collection Companies

Source

• Landing page: https://www.nhbar.org/2022-23-02-public-prosecutors-and-referral-fees/
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2023/03/20093040/EO-2022-23-02-Public-Prosecutors-and-Referral-Fees-FINAL-3-13-2023.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

NEW HAMPSHIRE BAR ASSOCIATION

                         Public Prosecutors and Referral Fees

                         Ethics Committee Opinion #2022-23/02

ABSTRACT:
A New Hampshire public prosecutor may not enter into a referral fee agreement with an active
New Hampshire lawyer for matters that arose from the prosecutor’s work as a prosecutor.

ANNOTATIONS:
A referral fee agreement benefitting a prosecutor creates a significant risk of a concurrent conflict
of interest arising from the prosecutor’s personal interests in the potential referral fee. This
personal interest materially limits the prosecutor’s ability to make fair and impartial decisions
regarding the disposition of the matter that is connected to the referral fee agreement. It may also
violate a number of statutes regulating gifts and compensation paid to public officials and public
servants.

OPINION:
At the onset of the analysis, there are statutory prohibitions that limit most New Hampshire
prosecutors from engaging in the private practice of law or accepting fees or emoluments for
providing legal services. NH RSA 7:6-d prohibits “[t]he attorney general, deputy attorney general,
assistant attorneys general and all attorneys employed by the department of justice” from “directly
or indirectly engag[ing] in the private practice of law, nor shall they accept any fees or emoluments
other than their official salaries for any legal services.” There are similar prohibitions on the
Rockingham County Attorney, Cheshire County Attorney, Belknap County Attorney, Sullivan
County Attorney, Strafford County Attorney, Carroll County Attorney, and Coös County
Attorney. See RSA 7:34-a et seq. 7:34-g. As of the drafting of this opinion, there are no statutory
prohibitions barring the Merrimack County Attorney, Grafton County Attorney, or Hillsborough
County Attorney from engaging in the private practice of law. While the statutes prohibiting the
seven County Attorneys from engaging in the private practice of law do not explicitly reference
assistant county attorneys, those County Attorneys may have office policies that prohibit the
assistant county attorneys from engaging in the private practice of law or accepting fees or
emoluments.

Aside from the statutes governing the Attorney General’s Office and the County Attorney’s
discussed supra, there are other laws prohibiting public employees from benefitting financially
from their employment. For example, executive branch public officials and employees are
prohibited from accepting gifts or improper compensation. See NH RSA 15-B:3 (prohibiting gifts
to public officials); NH RSA 15-B:1 (defining public official). Additionally, NH RSA 640:4
prohibits “public servants” from “accept[ing] or agree[ing] to accept any pecuniary benefit in
return for having given a decision, opinion, recommendation, nomination, vote, otherwise
exercised his discretion, or for having violated his duty…” It is very possible that a referral fee
would be captured by NH RSA 640:4 as a “pecuniary benefit.” Additionally, most political
{007600-0616 C2529310.1 } 1
subdivisions—counties, cities, towns and school boards—have adopted such prohibitions as
matters of employee policy or more specifically as rules governing public sector attorney conflicts
of interest.

Additionally, as the assistant county attorney’s authority derives from the County Attorney and
Attorney General, it is possible that the assistant county attorney may not do that which the County
Attorney is prohibited from doing. But even for those prosecutors that are not statutorily barred
from engaging in the private practice of law, they must still examine whether the Rules of
Professional Conduct permit them to enter into a referral fee agreement with an active New
Hampshire lawyer for matters that arose from the prosecutor’s work as a public prosecutor.

NH RPC R. 1.11(d)(1) subjects lawyers currently serving as a public officer or employee to the
conflict of interest rules, NH RPC R. 1.7, unless there is a law expressly exempting the public
attorney from those conflict rules. The Committee is unaware of any New Hampshire law
exempting prosecutors from the conflict rules.

In turn, NH RPC R. 1.7 governs conflicts of interest and prohibits a lawyer from a representation
if the representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if “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.” NH RPC R. 1.7(a)(2). In the present hypothetical, the concurrent
conflict arises from the public prosecutor’s responsibility to his client, the State of New
Hampshire. As a prosecutor, the lawyer has the “the responsibility of a minister of justice…” and
“to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of
sufficient evidence.” Comment 1 to NH RPC R. 3.8.

A conflict also flows from the second part of NH RPC R. 1.7(a)(2), which states that a concurrent
conflict of interest exists if “there is a significant risk that the representation of one or more clients
will be materially limited… by a personal interest of the lawyer.” Here that personal interest would
be the referral fee agreement and the resulting referral fee. The prosecutor’s interest in the referral
fee materially limits the prosecutor’s ability to fulfill her obligations as a minister of justice.

Waiving the conflict of interest under NH RPC R. 1.7(b) is also problematic. A concurrent conflict
of interest may be waivable, if (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. NH RPC R.
1.7(b).

In the present scenario, it is not clear to the Committee, as a legal matter, who would be authorized
to execute “informed consent, confirmed in writing.” While a prosecutor may be employed as a
town or city employee, county employee, state employee, or private attorney under contract, a
prosecutor represents the State of New Hampshire in a criminal prosecution. The Committee
offers no opinion on who would be authorized to make such a decision on behalf of the State of
{007600-0616 C2529310.1 } 2
New Hampshire, but believes that such a conflict would only be waivable, if at all, in rare and
extraordinary circumstances. The present scenario certainly does not qualify as such a
circumstance. Additionally, each referral would need its own waiver due to the unique issues
presented by every criminal prosecution. But, referral fees in this scenario constitute, in the
Committee’s opinion, such a pernicious practice that the conflict should be unwaivable due to the
prosecutor’s unique role as a minister of justice.

For the foregoing reasons, the Committee concludes that a prosecutor is not likely to be able to
ethically receive a referral fee arising from a matter in which the prosecutor participated in the
criminal prosecution.

NH RULES OF PROFESSIONAL CONDUCT:
Rule 1.7

Rule 3.8

Rule 1.11(d)(1)

Rule 1.7(a)(2) and (b)(2)

NH ETHICS COMMITTEE OPINIONS AND ARTICLES:
Conflict of Interest: “Member of a Firm Appearing Before Governmental Board When Another
Member of the Same Firm is a Member of the Board” Formal Opinion #1997-98/1 (1998)
This opinion is the most recent of a series of opinions addressing New Hampshire Rule 1.11A,
and making that rule inapplicable, because that rule relates to attorneys in private practice, not
public attorneys.

SUBJECTS:
Public Officials
Public Sector Attorneys
Conflict of Interest
Referral Fees

By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its Thursday,
March 23, 2023.

{007600-0616 C2529310.1 } 3