A motion for discovery sanctions can introduce adversity into an otherwise harmonious attorney-client relationship. For example, the motion, or the defense raised to the motion, may raise the issue of whether the attorney or the client was at fault for the discovery violation. The client may blame the lawyer for failing to adequately survey the landscape of potentially discoverable material. Or the attorney may blame the client for improperly informing the attorney that a litigation hold has been implemented. In either scenario, failure to comply with discovery obligations presents a range of adverse consequences for a civil litigant, including dismissal, spoliation instructions, and cost-shifting.

When issuing discovery sanctions, Courts often fail to specify whether they intend to sanction the attorney, the client, or both, or they may impose joint and several liability for discovery sanctions "upon both the attorney and a noncompliant party," In re Atlantic Int'l Mortgage Co., 373 B.R. 156, 158 (Bankr. M.D. Fla. 2007). Some Courts, if given an evidentiary basis to assign fault to particular individuals, will apportion fault for sanctionable misconduct between a party and his or her attorney. See, e.g., Northern Virginia Real Estate, Inc. v. Martins, 720 S.E.2d 121, 113-16 (Va. 2012). The burden of proving fault lies with the client and his or her attorney, rather than the party seeking the discovery sanction. See id. A direct dispute over apportionment of a litigation sanction between client and attorney presents a conflict of interest which is probably disqualifying, at least in the discovery dispute, within the meaning of New Hampshire Rule of Professional Conduct 1.7. See, e.g., Northern Virginia Real Estate, Inc. v. Martins, 720 S.E.2d 121, 113-16 (Va. 2012). There are many other conflict scenarios that can occur in the context of potential discovery sanctions. For example, the expanding role of electronic discovery and the risks associated with mishandling potentially discoverable materials have led to detailed duties on the part of outside and inside counsel, see, e.g., Zubulake v. UBS Warbug, LLC, 2004 WL 1620866 (S.D.N.Y. 2003), violation of which could form the basis for a dispute about which attorney is at fault for a litigation sanction.

In addition to a divided duty of loyalty, proving fault for apportionment purposes often implicates the use of confidential and/or privileged communications. See id.; W. Schwarzer, Sanctions Under the New Federal Rule 11-A Closer Look, 104 F.R.D. 181, 199 (1985) ("If the information received from the client is relevant to whether a [pleading] is well-founded, it probably must eventually be disclosed in any event"). The disclosure of confidential communications itself raises ethical concerns. Rule 1.8(b) prohibits using confidential information "to the disadvantage of the client unless the client gives informed consent," except as otherwise permitted. N.H. R. Prof. Conduct 1.8(b). Rule 1.6 permits an attorney to reveal confidential client information "to establish a claim or defense on behalf of the lawyer in controversy between the lawyer and the client." N.H. R. Prof. Conduct 1.6(b)(3). Arguably, the use of confidential information to deflect litigation sanctions falls within the Rule 1.6 exception, but doing so may cause the information to eventually prejudice the merits of the underlying case, increasing the likelihood of a future legal malpractice action. In addition, the New Hampshire Bar Association Ethics Committee has recently cautioned that a lawyer who attempts to invoke the self-defense exception to Rule 1.6 must ensure that the disclosure is necessary and tailored to the scope of necessity. See NHBA, New Hampshire Bar News, Ethics Corner: Can Lawyers Respond to False Accusations Online? (February 19, 2014), available at http://www.nhbar.org/publications/display-news-issue.asp?id=7203.

Obviously, avoiding discovery disputes is the best way to avoid these ethical concerns. If sanctions arise and the client and attorney dispute who is at fault, many Courts have suggested that an attorney should withdraw. See Northern Virginia, 720 S.E.2d at 116 (collecting authority). At a minimum, the prospect of seeking apportionment for litigation sanctions should prompt the attorney to inform the client about potential material or direct adversity, as well as potential use of confidential and privileged communications for purposes of apportionment. See N.H. R. Prof. Conduct 1.4. The attorney should consider recommending that the client engage counsel to litigate the apportionment issue, or for purposes of any attempt to negotiate a resolution between client and lawyer, see N.H. R. Prof. Conduct 1.8(h). If litigation of the apportionment issue will require the attorney to divulge client confidences, then the attorney should probably consider asking the Court to "defer the decision over allocation of responsibility until the litigation has been concluded." Schwarzer, supra 104 F.R.D. at 199-200. Before agreeing to defer the issue until the conclusion of the litigation, consider notifying and obtaining consent of your legal malpractice insurance carrier to avoid any loss of coverage.

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The Advisories issued by the Attorney Conduct, Liability and Professionalism Group are intended to provide general overviews of professional responsibility law and developments in a variety of areas regularly encountered by lawyers. Because the law in this field is constantly changing, the Advisories should not be relied upon as guidance or advice on how to handle specific situations. If you have any questions about an Advisory, or if you know of another lawyer who would like to receive these directly, please send an email to any member of the practice group.

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