## Facts

- A certified class of female inmates in New Hampshire alleged the state failed to provide correctional programs and services equivalent to those provided to male inmates.
- After a bench trial, the district court found an Equal Protection Clause violation and ordered the state to provide:
  - a permanent in-state women’s facility by July 1, 1989; and
  - a temporary facility by November 1, 1987.
- The district court’s remedy also barred the state from locating the temporary facility on the grounds of Laconia State School and Training Center (LSS), the state institution for persons with intellectual disabilities.
- Plaintiffs’ class counsel (a legal services organization) simultaneously represented a separate certified class of LSS residents in other litigation concerning LSS conditions and placement, creating adverse interests regarding any prison use of LSS.
- State officials moved to disqualify plaintiffs’ counsel for a concurrent conflict of interest; the district court denied disqualification, relying in part on “necessity.”
- The LSS residents and their advocacy organization moved to intervene in the remedial phase to protect their interests in LSS; the district court denied intervention.
- State officials and the proposed intervenors appealed; the appeals were consolidated.

## Issues

1. Whether the district court erred by refusing to disqualify plaintiffs’ class counsel for a concurrent conflict arising from simultaneous representation of the female inmates and the LSS resident class with adverse remedial interests.
2. Whether the district court abused its discretion in fashioning a remedy that barred use of LSS as a temporary facility without adequate record support.
3. Whether the district court erred in denying the LSS resident class’s motion to intervene in the remedial phase.

## Decision

- The First Circuit affirmed the finding that the state’s disparate provision of correctional programs and services for women violated equal protection.
- The court held the district court erred in denying disqualification because class counsel faced a serious, nonconsentable concurrent conflict that affected the remedial phase.
- The court vacated the remedial order and remanded for further proceedings, including a new remedy determination with conflict-free representation.
- The court held the district court erred in denying the LSS resident class’s motion to intervene because the class had a protectable interest in LSS that could be impaired by the remedy and was not adequately represented.

## Legal Principles

- Lawyers owe each client undivided loyalty; concurrent representation with directly adverse interests is prohibited where the conflict cannot be cured by consent.
- In class actions, conflicts that constrain counsel’s ability to advocate for remedial options require disqualification even if liability was fairly litigated.
- “Necessity” or limited availability of alternative counsel does not justify continuing representation where the ethical conflict is unresolvable.
- A remedial injunction must be supported by record-based findings; when the remedy is shaped under conflicted advocacy, vacatur and remand may be required.
- Intervention is warranted where a nonparty has a significant interest that may be impaired by the action’s disposition and existing parties do not adequately represent that interest.

## Conclusion

The First Circuit left intact the determination that New Hampshire’s unequal treatment of female inmates violated equal protection, but required a new, conflict-free remedial proceeding and permitted participation by the LSS resident class because class counsel’s concurrent representation created a nonwaivable conflict that tainted the remedy and compromised adequate representation.


Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987)