United States District Court, D. New Hampshire
B. McCaffferty United States District Judge.
and Alia Estes, proceeding pro se, brought suit in New
Hampshire state court against Educational Credit Management
Corporation (“ECMC”), alleging violations of
state and federal laws arising out of ECMC's efforts to
collect Alia's debt. ECMC removed the case to this court.
Before the court are the following motions: (1)
plaintiffs' “motion for consideration, ”
which seeks to disqualify ECMC's counsel, Sulloway &
Hollis PLLC (“Sulloway”) (doc. no. 5); (2)
plaintiffs' motion for leave to file an amended motion
for consideration (doc. no. 14); (3) ECMC's motion to
seal its objection to plaintiffs' motion for
consideration and exhibits attached to its objection (doc.
no. 13); and (4) plaintiffs' motion to remand the case to
state court (doc. no. 6).
Motion for Leave to File Amended Motion for
their motion for consideration, plaintiffs raise a purported
conflict of interest which they argue requires Sulloway to be
disqualified from representing ECMC in this case.
Specifically, they argue in their motion that Charles Estes
is the firm's current client by virtue of his status as a
residual beneficiary of a trust for which a Sulloway attorney
serves as co-trustee. They contend that New Hampshire Rule of
Professional Conduct 1.7 requires Sulloway's
their motion for leave to file an amended motion for
consideration (“motion for leave”), plaintiffs
state that their original motion did not fully express their
concerns over Sulloway's continued involvement in the
case. They attach with their motion for leave a proposed
amended motion for consideration. See doc. no. 14-1. In the
proposed amended motion, plaintiffs cite two additional Rules
of Professional Conduct (Rules 1.6 and 1.9), and state that
Sulloway must be disqualified for the additional reason that
the firm has represented Charles in various legal matters in
ECMC objects to plaintiffs' motion for leave, it
responded in its objection to the merits of plaintiffs'
proposed amended motion for consideration. The court
therefore grants plaintiffs' motion for leave to file an
amended motion for consideration. In light of plaintiffs'
pro se status, and for the sake of judicial economy, the
court will construe document no. 14-1 (the proposed amended
motion for consideration) to be a supplement to
plaintiffs' original motion for consideration and will
address in this order the arguments raised in both filings.
Motion to Seal
objects to plaintiffs' motion for consideration, arguing
that Sulloway should not be disqualified because Charles is
not the firm's current client and that Sulloway's
former representations of Charles are not substantially
related to this case so as to require disqualification.
ECMC's objection to the motion for consideration,
document no. 12, includes certain details about
Sulloway's past legal representation of Charles. In
addition, it includes as exhibits certain communications
between attorneys of the firm and Charles relating to their
attorney-client relationship. ECMC asserts that some of the
information included with its objection and exhibits is
therefore confidential, and it moves to seal both the
objection and exhibits in their entirety. Plaintiffs object
to the motion to seal, though their objection largely takes
issue with the substance of ECMC's objection to their
motion for consideration. They do not appear to request that
the information in document no. 12 nor the exhibits
themselves become public.
overcome the strong presumption that the public should have
access to judicial records, the parties must have compelling
reasons. See Nat'l Org. for Marriage v. McKee,
649 F.3d 39, 70 (1st Cir. 2011); FTC v. Standard Fin.
Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987).
“Suffice to say that the interest in preserving a
durable barrier against disclosure of privileged
attorney-client information is shared both by particular
litigants and by the public, and it is an interest of
considerable magnitude.” Siedle v. Putnam
Investments, Inc., 147 F.3d 7, 11 (1st Cir. 1998).
“Indeed, this is precisely the kind of countervailing
concern that is capable of overriding the general preference
for public access to judicial records.” Id.
extent ECMC's objection to plaintiffs' motion for
consideration, document no. 12, and exhibits attached
thereto, reveal information that is subject to the
attorney-client privilege, compelling reasons exist to keep
the information from the public domain. Sealing the entire
objection and each of the exhibits, however, is not warranted
because much of those filings do not implicate the
attorney-client privilege. For example, the objection
contains several pages of legal argument. It also contains
the details of Sulloway's involvement with the Marital
Trust. Not only do plaintiffs' filings, which are not
sealed, provide much of the same details, but ECMC also
correctly argues that the Marital Trust does not involve an
attorney-client relationship as discussed further
infra. Therefore, no compelling reasons exist to
keep such information from the public domain.
these reasons, the court grants ECMC's motion to seal in
part and denies it without prejudice in part. ECMC shall
refile its objection and attached exhibits with limited
redactions consistent with this order.
Motion for Consideration
raise three separate purported conflicts of interest which
they contend require Sulloway's disqualification. First,
they argue that Charles is a current client of the firm
because one of the firm's attorneys, R. Carl Anderson,
serves as a co-trustee of the Marital Trust, of which Charles
is a named residual beneficiary. Second, a Sulloway attorney,
John Garvey, represented Charles in certain legal matters in
1987 and 1988. And third, a Sulloway attorney, John
Harrington, represented Charles in a legal matter in 2014.
The court addresses each purported conflict in turn.
Local Rule 83.5, DR-1, the “Standards for Professional
Conduct adopted by this court are the Rules of Professional
Conduct as adopted by the New Hampshire Supreme Court, as the
same may from time to time be amended by that court and any
standards of conduct set forth in these rules.” The New
Hampshire Professional Conduct Rules include provisions that,
under certain circumstances, might require the
disqualification of a party's opposing counsel. “A
party seeking disqualification of an opposing party's
counsel bears a heavy burden of proving facts required for
disqualification.” Ponte v. Sage Bank, No. CA
14-115 S, 2014 WL 3942888, at *1 (D.R.I. Aug. 12, 2014)
(internal quotation marks and citations omitted); see
Galvin v. Specialized Loan Servicing LLC, No.
15-CV-386-JL, 2015 WL 10097218, at *2 (D.N.H. Dec. 9, 2015),
report and recommendation adopted, No. 15-CV-386-JL, 2016 WL
614406 (D.N.H. Feb. 16, 2016).
The Marital Trust
rely on New Hampshire Rule of Professional Conduct 1.7 in
support of their argument that Sulloway's involvement in
the Marital Trust requires its disqualification. Rule 1.7
addresses conflicts of interest between attorneys and current
clients. The rule provides, in relevant part:
a) . . . a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. 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
N.H. R. Prof. Conduct 1.7(a). Plaintiffs argue that Charles
is a current Sulloway client because he is a residual
beneficiary of the Marital Trust, of which a Sulloway
attorney is a co-trustee. Plaintiffs argue that, as such,
Sulloway's representation of ECMC is a concurrent
conflict of interest and requires Sulloway's
disqualification. ECMC disagrees, arguing that Charles's
status as the residual beneficiary of the Marital Trust does
not make Charles a current client of Sulloway and, therefore,
does not implicate Rule 1.7.
is no dispute that Charles, through his status as a residual
beneficiary of the Marital Trust, has had contact with
certain Sulloway attorneys at various points since the
Marital Trust was established. But the law does not support
plaintiffs' contention that this relationship makes
Charles a current client of the firm.
as ECMC notes, plaintiffs do not suggest that any Sulloway
attorney has served or is serving as legal counsel to the
Marital Trust or its beneficiaries. Rather, Attorney
Anderson, and formerly Attorney Sheridan, have served as the
co-trustee of the Marital Trust along with Norman R. LeBlanc,
a certified public accountant and a non-lawyer who is
unaffiliated with Sulloway. Thus, it does not appear that
Sulloway represents the Marital Trust as its attorney. By
extension, Sulloway does not represent the Marital
assuming that Sulloway does represent the Marital Trust as
its attorney, that does not make Charles a client of the
firm. An attorney's representation of a trust, without
more, does not create an attorney-client relationship between
the attorney and the trust's beneficiaries. See,
e.g., Witzman v. Gross, 148 F.3d 988, 990 (8th Cir.
1998); Young v. Vrechek, No. CV 09-00403 SOM-BMK,
2013 WL 4479198, at *3-4 (D. Haw. Aug. 19, 2013) (citing
court is sympathetic to plaintiffs' position. But
Charles's status as a residual beneficiary of a trust for
which a Sulloway attorney serves as a co-trustee does not
make Charles a client of Sulloway. Therefore, Rule 1.7 of the
Rules of Professional Conduct is inapplicable.
Sulloway's Prior ...