Brief Fact Summary.
A settlement offer made by the State of New Hampshire (Defendant) to a class of plaintiffs was contrary to the interest of another client of the offeree’s attorney.
Synopsis of Rule of Law.
An attorney may not represent two clients when a settlement offer made to one is contrary to the interests of the other
A class of plaintiffs made up of female inmates of the New Hampshire penitentiary system brought action in which they claimed that they were denied equal protection because the facilities for male inmates were better.Â New Hampshire Legal Assistance (NHLA), a public-interest legal organization, represented them.Â NHLA also represented a class of students at a state school in an unrelated matter.Â At one point the state (Defendant) offered to convert one of the school buildings into a women’s penitentiary.Â The students represented by NHLA intensely opposed this, and the plaintiffs rejected the offer.Â A trial followed, and the district court held that the state penitentiary system denied equal protection to female convicts and ordered that a facility be built.Â The state (Defendant) appealed, arguing that the court should have disqualified NHLA from representing the plaintiff case.
May an attorney represent two clients when a settlement offer made to one is contrary to the interests of the other?
(Coffin, J.)Â No.Â An attorney may not represent two clients when a settlement offer made to one is contrary to the interests of the other.Â Rule 1.7 of New Hampshire’s Rules of Professional Conduct prohibits an attorney from representing a client if the representation of that client may be materially limited by the responsibilities the attorney has to another client.Â Loyalty to a client is materially limited when a lawyer cannot recommend a possible course of action due to existing loyalty to another client.Â Therefore, when a settlement offer is made and a lawyer is obligated to a party opposed to that settlement, that lawyer cannot use his independent judgment in advising the client.Â At this point, a conflict exists.Â In this case, NHLA could not recommend the state’s (Defendant) settlement offer because of a duty to another client, and it therefore should have been disqualified.Â [The court went on to affirm the finding of an equal protection violation, holding it not to have been tainted by the conflict, but ordered a retrial as to the remedy
Usually it is possible for a potential conflict to be waived.Â This requires (1) a reasonable belief by the attorney that he can zealously represent both interests, and (2) a knowing consent by the affected parties.Â However, in this case, the court believed the conflict to be real, not potential.