## Facts

- Dennis O. Shillen, a Vermont-licensed attorney, was retained in December 1993 to represent spouses Vincent and Pamela Hammond in personal-injury claims arising from the same New Hampshire automobile accident.
- Shillen initially pursued recovery against the other driver and insurer, but learned of evidence suggesting Vincent had been speeding and that Vincent’s negligence could be asserted.
- Vincent told Shillen that he and Pamela wanted Pamela to sue Vincent and his insurer (Travelers) so Pamela could recover for her injuries.
- Shillen discussed the potential conflict with the Hammonds and believed they consented to continued representation despite the adversity.
- Shillen sent a demand to Travelers referring to “both Hammonds” as his clients and directed Vincent to sign an affidavit admitting excessive speed and causation of Pamela’s injuries.
- After Pamela filed suit against Vincent, Shillen ceased communicating with Vincent while continuing to advance Pamela’s position; Vincent retained new counsel who objected to Shillen’s adverse action against a current client.
- Shillen later withdrew from representing Pamela as well.
- At trial, Vincent contradicted his earlier affidavit; the court declared a mistrial and referred the testimony to the attorney general for possible perjury.
- The Supreme Court Committee on Professional Conduct petitioned for attorney discipline alleging violations of Rules 1.7, 1.9, and 8.4, seeking public censure.

## Issues

1. Whether Shillen violated Rule 1.7(a)–(b) by representing Pamela and Vincent when their interests became directly adverse and by acting adversely to Vincent while still representing him.
2. Whether Shillen violated Rule 1.9(a)–(b) by using information from Vincent’s representation (including the affidavit) to Vincent’s disadvantage in substantially related litigation.
3. Whether violations of the conflict rules constituted professional misconduct under Rule 8.4(a).
4. What sanction was warranted if violations were proved.

## Decision

- The New Hampshire Supreme Court found that Shillen committed conflict-of-interest violations arising from dual representation that became directly adverse.
- The Court rejected the referee’s conclusion that the Committee failed to prove violations by clear and convincing evidence.
- The Court imposed a sanction of public censure.

## Legal Principles

- A lawyer may not represent multiple clients whose interests become directly adverse unless the conflict is consentable and informed consent is obtained.
- Consent is ineffective where a reasonable disinterested lawyer could not conclude that the lawyer can provide competent, diligent, and loyal representation to each client despite the conflict.
- Acting to advance one client’s claim by attributing fault to another current client constitutes a serious breach of the duty of loyalty and triggers Rule 1.7 concerns requiring withdrawal from at least one representation.
- A lawyer may not use information relating to a former client’s representation to the former client’s disadvantage in substantially related proceedings without consent.
- Violations of the Rules of Professional Conduct constitute professional misconduct under Rule 8.4(a).
- In determining discipline, the court considers the seriousness of the conflict, the risk and actual harm to clients and proceedings, and whether the lawyer delayed appropriate withdrawal.

## Conclusion

The court publicly censured Shillen for pursuing and continuing dual representation after the spouses’ interests became directly adverse, holding that the conflict was not effectively cured by purported consent and that the resulting loyalty breach warranted public discipline.


Shillen’s Case, 149 N.H. 132, 818 A.2d 1241 (N.H. 2003)