Lex Mundi Global Attorney-Client Privilege Guide |
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USA, New Hampshire |
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(United States)
Firm
Sheehan Phinney Bass & Green, PA
Contributors
Robert Lucic |
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| Is the ACP recognized in your jurisdiction? | Yes, New Hampshire Rule of Evidence 502, Lawyer-Client Privilege. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | NHRE 502(a)(2) defines a ‘representative of a client’ as “one having the authority to obtain professional legal services, or to act on advice rendered thereto, on behalf of the client.” This is known as the “control group” test. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | Nothing in the Rule makes the distinction, although the scope of what constitutes of “facilitating the rendition of legal services” is not well defined, and therefore the what constitutes business or technical advice is open to challenge. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A |
| Is the common interest doctrine recognized in your jurisdiction? | Yes |
| How is the doctrine articulated in your jurisdiction? | NHRE 502(b)(3) expressly recognizes the joint interest privilege |
| Must a common interest agreement be in writing? | No, but it is recommended |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | No |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | NHRE 502(d)(1). |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes, NH Superior Court Rule 21(e)(1) |
| What are the elements of the protection in your jurisdiction? | “A party may obtain discovery of documents, electronically stored information and tangible things otherwise discoverable and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his or her attorney, non-attorney representative, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” |
| Does your jurisdiction recognize an accountant-client privilege? | No |
| Does your jurisdiction recognize a mediation privilege? | Yes. NH Superior Court Rule 32 states the ADR proceedings are confidential unless the parties agree otherwise. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, NHRE 408. |
Lex Mundi Global Attorney-Client Privilege Guide
USA, New Hampshire
(United States) Firm Sheehan Phinney Bass & Green, PAContributors Robert Lucic
Updated 18 Mar 2020Yes, New Hampshire Rule of Evidence 502, Lawyer-Client Privilege.
N/A
No
NHRE 502(a)(2) defines a ‘representative of a client’ as “one having the authority to obtain professional legal services, or to act on advice rendered thereto, on behalf of the client.” This is known as the “control group” test.
Nothing in the Rule makes the distinction, although the scope of what constitutes of “facilitating the rendition of legal services” is not well defined, and therefore the what constitutes business or technical advice is open to challenge.
N/A
N/A
Yes
NHRE 502(b)(3) expressly recognizes the joint interest privilege
No, but it is recommended
No
No
Yes
NHRE 502(d)(1).
Yes, NH Superior Court Rule 21(e)(1)
“A party may obtain discovery of documents, electronically stored information and tangible things otherwise discoverable and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his or her attorney, non-attorney representative, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
No
Yes. NH Superior Court Rule 32 states the ADR proceedings are confidential unless the parties agree otherwise.
Yes, NHRE 408.