The town of Haverhill's Summary Judgment Motion for their Declaratory Judgment Request. Read more about the small town coup attempt that gave rise to this case at www.planbjustice.com

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THE STATE OF NEW HAMPSHIRE
GRAFTON, SS. SUPERIOR COURT
TOWN OF HAVERHILL
v.
DONAHUE, TUCKER & CIANDELLA, PLLC
Docket No. 215-2023-CV-00241
________________________________________________________________
PLAINTIFF TOWN OF HAVERHILL’S MOTION FOR SUMMARY JUDGMENT
WITH INTEGRATED MEMORANDUM OF LAW
RE: DECLARATORY JUDGMENT COUNTS 1-3
________________________________________________________________
NOW COMES, the Plaintiff, Town of Haverhill, through its attorney of record, and
pursuant to Super. Ct. Rule 12(g), hereby files its Motion for Summary Judgment with
Integrated Memorandum of Law on Declaratory Judgment Counts ##1-3, as follows:
Introduction
1. The Book of Mathew decrees that “no one can serve two masters, for either he
will hate the one and love the other, or he will be devoted to the one and despise the other.”
Book of Mathew 6:24 (King James ed.). This edict has long been applied to lawyers and is at
the root of Rule 1.7 of the Rules of Professional Conduct: the concurrent conflict rule.
2. Conflict rules exist to protect clients, not lawyers. The burden remains on the
lawyer to ensure that the Rules of Professional Conduct are followed. The lawyer must first
demonstrate that the conflict is even waivable independent of actual client consent, as New
Hampshire has adopted the following standard: “when a disinterested lawyer would conclude
that the client should not agree to the representation” the conflict is nonconsentable. Boyle’s
Case, 136 N.H. 21, 24 (1992). If a lawyer’s conflict is nonconsentable, then a lawyer cannot
Filed
File Date: 3/18/2024 8:40 PM
Grafton Superior Court
E-Filed Document

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represent the client, whether the client would or did in fact provide his or her waiver. On the
other hand, if the conflict is consentable, and can be properly waived, there are additional factors
to consider. These factors include whether “full disclosure” of the conflict was made; whether
a reasonable opportunity was provided to the client to consider the conflict, and whether client
authorization was “confirmed in writing.” N.H. R. Prof. Cond. 1.7(b). In either case—where a
lawyer has an unwaivable conflict, or where he fails to obtain a valid conflict waiver, but engaged
in representation anyway, the lawyer may not receive legal fees for services rendered because
he engaged in a conflict of interest. See In re Estate of McCool, 131 N.H. 340, 351 (1988).
3. No trial is necessary in this case because there is no genuine issue of material fact
that Donahue, Tucker & Ciandella, PLLC (DTC) engaged in a clear conflict of interest with
Haverhill. DTC admitted its “technical conflict” stems from DTC Attorney Christopher
Hawkins’ prior presentation of Woodsville against Haverhill in 2020.1
The aim of the
Haverhill/Woodsville litigation was to compel Haverhill taxpayers to fund Woodsville’s
highway department. DTC attempted to represent Haverhill on a matter directly related to the
Woodsville/Haverhill litigation – Warrant Article 27 (2022) – requiring Haverhill to fully fund
Woodsville’s highway department.
4. The genesis of the legal matter concerning the attorney fee dispute at issue here
is the New Hampshire Department of Revenue Administration’s (DRA) disallowance of Warrant
Articles 27 and 28: on the grounds that it is unlawful for one municipality (Haverhill) to require
taxpayers to pay for governmental services of another municipality (Woodsville) they do not
receive, which determination Woodsville appealed. DRA’s determination, however, was
contrary to the position Attorney Hawkins took when representing Woodsville against Haverhill.
1
Attorney Hawkins conflict of interest is imputed to all lawyers of DTC under N.H. R. Prof. Cond. 1.10(a).

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And it was for this very conflict DTC sought a waiver from both Haverhill and Woodsville.
DRA refused to set Haverhill’s tax rate while Woodsville appealed DRA’s disallowance of
Warrant Article 27 and 28 – creating a legal and financial conundrum – requiring the assistance
of legal counsel. Under the Boyle standard, a disinterested lawyer would conclude the DRA tax
rate matter was directly related to the Woodsville/Haverhill litigation where the public interests
of Haverhill and Woodsville were materially adverse. DTC’s conflict could not be waived.
5. But even if waiving DTC’s conflict could be consented to, the undisputed
material facts demonstrate there was no governmental action by the governing body waiving
DTC’s admitted conflict, and there was no action by the Town Manager authorizing the same.
In fact, the Town Manager expressly objected to DTC’s representation due to its clear conflict.
6. The nonconsentable conflict or DTC’s lack of a valid conflict waiver moots all
issues in this litigation, because DTC engaged in a clear conflict of interest and is not entitled to
attorney fees. Summary Judgment should be granted on this ground alone. There is no need to
determine whether the Town Manager and/or a quorum of the Select Board approved DTC’s
representation agreement, or whether mandatory arbitration regarding the attorney fee dispute is
required, because DTC engaged in a conflict of interest that would render any attorney fee
dispute moot. See In re Estate of McCool, 131 N.H. at 351.
7. Assuming Counts 1 & 2 of the Town’s Amended Complaint may be addressed
by this Court, the undisputed evidence demonstrates the Selectboard voted to give the Town
Manager full authority over all legal matters related to Woodsville, and since the DRA tax rate
setting matter related to Woodsville, Town Manager authorization was required to hire DTC,
and that authorization was never obtained. And to the extent the Selectboard desired to hire DTC
to assist in evaluating the Town Manager’s performance, the evidence demonstrates DTC was

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never retained by a quorum of the Selectboard for that purpose. If DTC’s representation
agreement was valid, it would have filed an arbitration complaint or a motion to compel
arbitration, since it threatened to take Haverhill to arbitration if it did not receive payment for
attorneys’ fees by September 25, 2023. A trial is not necessary here.
Standard of Review
8. Summary judgment is a procedure designed to save time, effort, and expense and
to expedite the administration of justice by avoiding the formal trial of cases where there are no
genuine issues of material fact. Green Mountain Ins. Co. v. Bonney, 131 N.H. 762, 766 (1989).
In ruling on a motion for summary judgment, the Superior Court is “obligated to grant summary
judgment if, after considering all the evidence presented in the light most favorable to the non-
moving party, no genuine issue of material fact exists and the moving party [is] entitled to
judgment as a matter of law.” Morse v. Goduti, 146 N.H. 697, 698 (2001); RSA 491:8-a.
9. A party opposing summary judgment may not rest upon general denials or
allegations, but must set forth specific facts showing that a genuine issue remains for trial. ERA
Pat Desmarais Assoc’s. v. Alexander Eastman Found., 129 N.H. 89, 92 (1986). In other words,
“a laundry list of possibilities and hypotheticals” and “[s]peculation about mere possibilities,
without more, is not enough to stave off summary judgment.” Tobin v. Fed. Express Corp., 775
F.3d 448, 451-52 (1st Cir. 2014). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
10. Reasonable inferences are taken in the light most favorable to the nonmoving
party, but unsupported speculation and evidence that “is less than significantly probative” is not
sufficient to avoid summary judgment. Planadeball v. Wyndham Vacation Resorts, Inc., 793
F.3d 169, 174 (1st Cir. 2015). A party opposing summary judgment must present contradictory
evidence under oath sufficient to indicate that a genuine issue of material fact exists. RSA 491:8-

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a; Phillips v. Verax Corp. 138 N.H. 240, 243 (1994). In the absence of any contradictory evidence
under oath, the sworn allegations of the moving party are deemed admitted. RSA 491:8-a, II.
Argument2
I. No trial is necessary because DTC had an insuperable conflict of interest with
Haverhill and has no right to demand legal fees.
11. Not every conflict of interest can be waived. A 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 lawyer. N.H. R. Prof. Cond. 1.7(a). In New Hampshire, while a client may consent
to representation notwithstanding a conflict, “when a disinterested lawyer would conclude that
the client should not agree to the representation under the circumstances, the lawyer involved
cannot properly ask for such agreement or provide representation on the basis of the client’s
consent.” Case of Shillen, 149 N.H. 132, 137 (2003) citing N.H. R. Prof. Conduct 1.7 ABA
Model Code Comments; see also Kelly’s Case, 137 NH. 314, 319 (1993); Boyle’s Case, 136
N.H. 21, 24 (1992). Simply, “an attorney who could not reasonably conclude that their
representation of a client would not be adversely affected by their responsibilities to others, or
by their own interests, was not even permitted to seek consent – much less provide representation
based on such consent.” See Flamm, Richard E, Conflict of Interest in the Practice of Law,
Causes and Cures, Curing Conflicts § 26.2, p. 536-537 (2015) citing Boyle’s Case, supra.
12. In evaluating the appropriateness of representation in a conflict situation under
Rule 1.7(b), the NHBA Ethics Committee has used the “harsh reality test” which states:
2
Common law from sister jurisdictions is used as additional supporting authority because there is
minimal jurisprudence on the Rules of Professional Conduct in New Hampshire.

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“(i)f a disinterested lawyer were to look back at the inception of this
representation once something goes wrong, would that lawyer seriously question
the wisdom of the first attorney’s requesting the client’s consent to this
representation or question whether there had been full disclosure to the client
prior to obtaining the consent. If this “harsh reality test” may not be readily
satisfied by the inquiring attorney, the inquiring attorney and other members of
the inquiring attorney’s firm should decline representation . . . .” New Hampshire
Bar Association Ethics Committee Opinion 1988-89/24
(http://nhbar.org/pdfs/f088-89-24.pdf).
13. If the harsh reality test is met, and if an attorney violates the Rules of Professional
Conduct by engaging in clear conflicts of interest, he may not receive legal fees for services
rendered. See In re Estate of McCool, 131 N.H. at 351.
14. Moreover, “[n]o attorney should permit himself or herself to be placed in a
position in where he or she knows will prevent the proper performance of the attorney’s
function.” Wendell’s, Inc. v. Malmkar, 405 N.W.2d 562, 566 (Neb. 1987). And the ways in
which an attorney’s personal interests may come into conflict with those of a present or former
client are virtually unlimited. Essex County Jail Annex Inmates v. Treffinger, 18 F. Supp 2d
418, 432 (D.N.J. 1998)(remarking upon “the virtually limitless cases in which a conflict may
theoretically arise when a lawyer’s self-interest is implicated.”).
15. And “where the public interest is involved, an attorney may not even represent
conflicting interests even when the consent of all concerned.” See, e.g., State ex rel. Morgan
Stanley & Co. v. MacQueen, 187 W. Va. 97, 416 S.E.2d 55, 60 (1992); see ABA Committee on
Professional Ethics, Opinions, No. 16 (1929) and No. 34 (1931) (the public cannot consent to
conflicting interests like a private client); see also, NJ RPC Rule 1.9(d)(“a public entity cannot
consent to a representation otherwise prohibited by this rule.”). Indeed, the New Hampshire
Rules of Professional Conduct observe that decisional law in some states limits the ability of a
government client, such as Haverhill or Woodsville, to consent to a conflict of interest. See N.H.

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R. Prof. Cond. 1.7(b) citing 2004 ABA Model Rule Comment, Rule 1.7 [16]. Courts have found
the basis for this prohibition not in a concern for the attorney’s ability to represent clients
adequately and competently with adverse interests, but in the protection of public trust and the
integrity of the judicial system. This renders the prohibition separate from the beliefs or opinions
of attorneys and clients concerning the waivability of conflicts arising from a particular
attorney’s representation. Even the “appearance” of conflict is to be avoided for the sake of
public faith in the judicial system when the public interest is triggered.
16. In this case, DTC knew or should have known, it had a clear conflict of interest
with Haverhill that could not be waived because of Attorney Hawkins’ recent prior
representation of Woodsville against Haverhill. This is especially true when Haverhill’s legal
matter with DRA directly related to the recent litigation between Haverhill and Woodsville –
Haverhill funding of Woodsville’s highway department. Town’s Statement of Material Facts
(“SOF”), ¶¶ 2, 12; DTC Answer ¶¶ 9, 88; Affidavit of Brigitte Codling (“Codling aff.”) at ¶¶ 13,
15; Affidavit of Jennifer Boucher (Boucher aff.), at ¶ 11.
17. Indeed, the DRA tax rate matter is grounded in Woodsville’s pursuit of Haverhill
taxpayer funding of Woodsville’s highway department. Warrant Article 27 required Haverhill
to fully fund Woodsville’s highway department; and Warrant Article 28 required Haverhill to
fund Woodsville’s fire department. SOF ¶¶ 16-18, DEK aff., Ex. 5, p. 17 (Feb. 7, 2022, Board
Meeting Minutes, Warrant Articles 27 & 28). DRA disallowed Warrant Article 27 because it
was “prohibited by law” as “one municipal entity cannot make an appropriation for another
unless special legislation so provides,” e.g. Haverhill cannot fund Woodsville’s highway
department. SOF ¶21, Am. Complaint, Ex. 3 (Letter from DRA to Haverhill dated May 4, 2022).

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18. After Woodsville appealed DRA’s disallowance of Articles 27 & 28 to the New
Hampshire Supreme Court, “due to the interconnection of the issues raised by the Woodsville
Fire District in its appeal and the rates to be set for the Town” DRA refused to set Haverhill’s
tax rates. DTC Answer ¶27 compare with DEK aff., Ex. 11 (letter from DRA to Haverhill dated
December 22, 2022 refusing to set tax rate). Thus, the DRA tax rate matter was directly related
to, and inextricably intertwined with, Woodsville’s efforts to have Haverhill taxpayers fund
Woodsville’s highway department – the same issue Attorney Hawkins represented Woodsville
against Haverhill in this Court. Id.; Codling aff., ¶¶ 13, 15; DTC Answer, ¶¶ 9, 88.
19. Moreover, there were ongoing issues with the performance of Woodsville and
Haverhill’s settlement that could have led to that litigation being reopened. SOF ¶ 34; DEK aff.,
Ex. 15 (Email from Woodsville Commissioner to Haverhill, Jan 4, 2023); Boucher aff., ¶¶ 8-9.
From an objective perspective, a disinterested lawyer would conclude that DTC could not
properly ask for a representation agreement from Haverhill. See Boyle’s Case, 136 N.H. at 24.
This is especially true since the public interest was squarely at issue in DTC’s conflict – the past
and current representation of two competing municipal entities – Woodsville and Haverhill.
20. Furthermore, DTC’s conflict was nonconsentable because the facts demonstrate
Attorney Hawkins’ recent prior representation of Woodsville against Haverhill prevented “the
proper performance of the attorney’s function” for Haverhill. See Wendell’s, Inc., 405 N.W.2d
at 566. Indeed, “[t]he self-interested lawyer who views the conflict provisions as a roadblock to
be circumvented often can obtain misguided waivers” which is what happened here. See,
Zacharias, Fred, Waiving Conflicts of Interest, 108 Yale L.J. 407, 422 (1998).
21. On January 11, 2023, the day before DTC claims it began representing Haverhill,
(DTC Counterclaim ¶ 7) and before DTC even met with the Selectboard, (DEK aff., Ex. 23, DTC

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Interr. Ans. #6), Hawkins met with his former Woodsville co-counsel in the
Woodsville/Haverhill litigation to share DTC’s “preliminary gameplan” for Haverhill regarding
the DRA tax rate matter. SOF ¶ 43; Am. Complaint, Ex. 6 (Email between Hawkins and Maher,
Jan. 11, 2023); DTC Answer, ¶ 38. Moreover, Hawkins admits that DTC’s conflict waiver letter
was drafted to imply DTC would not defend the Town Manager’s position on Woodsville,
because “if we are required to maintain that position then the conflict may be insuperable.” SOF
¶ 47; DEK aff., Ex. 22, (RFAs ## 36 -38); DTC Answer ¶¶ 39, 93.
22. Compounding the conflict problem for DTC is Town Administration resisted
DTC’s efforts of representing Haverhill because of its clear conflict of interest due to Hawkins
representation of Woodsville against Haverhill. SOF ¶ 54, Ex. 27 (Email from Codling to Boldt,
Jan. 12, 2023); DTC Answer ¶¶ 41, 42; DEK aff., Ex. 18 (ToH000143-45)(Email from Boucher
to Maher, Jan. 13, 2023); Codling aff., ¶ 31. Moreover, Town Administration further resisted
DTC’s efforts because it had an ongoing attorney-client relationship with another law firm
working on the DRA rate setting matter – Drummond Woodsum (DW) – who had represented
Haverhill against Woodsville (and Attorney Hawkins) in the highway funding dispute. See, e.g.,
DTC Answer, ¶ 11; SOF ¶¶ 30-32, 62, 67-68; DEK aff., Ex. 12 (DW memo to Selectboard, Dec.
30, 2022); DEK aff., Ex. 30 (Email from DW to Codling & Boucher); Codling aff., ¶¶ 30, 31
Am. Complaint Ex. 15, p.1 (Letter from DRA to DTC, Jan. 23, 2023, DRA was working with
Haverhill’s counsel at DW); DTC Answer, ¶ 57.
23. And yet, Hawkins drafted an email for the Selectboard to send to Town
Administration with “a clear written message” that DTC was representing Haverhill, stating:
The Selectmen are satisfied there is no conflict [with DTC]…[t]he Board does not
authorize the retention of Drummond Woodsum at this time and Drummond Woodsum
should be direct [sic] to stand down until further notice…
SOF ¶ 72; Am. Complaint, Ex. 10B (Email between Maher and Hawkins dated Jan. 14, 2023).

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24. And because of Town Administration’s continued resistance of DTC’s
representation of Haverhill due to DTC’s conflict of interest with Haverhill, Hawkins sent an
email to Maher recommending Codling’s employment be terminated. SOF ¶ 81; Am.
Complaint, Ex. 10A (Email between Maher and Hawkins, Jan. 15, 2023).
25. The facts demonstrate Hawkins’ personal beliefs regarding his former client
Woodsville, prevented the proper performance of the attorney’s function. No disinterested
lawyer would draft a conflict waiver to avoid representing Haverhill’s Town Manager’s position
on a matter related to Woodsville, when (1) the conflicted lawyer had previously represented
Woodsville against Haverhill, and (2) when the Selectboard granted full authority to the Town
Manager over all legal matters related to Woodsville. And no disinterested lawyer would draft
an email for the Selectboard to send to Town Administration stating there was “no conflict”
(SOF ¶ 72) and draft a public statement stating DTC had “no conflict” (SOF ¶ 86, 87) after DTC
already acknowledged a concurrent conflict and attempted to secure a conflict waiver. SOF ¶¶
42, 78, DEK aff., Ex. 37 (DTC conflict waiver); DEK aff., Ex. 19, p.1 (Email between Maher
and Hawkins, Jan. 11, 2023, acknowledging conflict); DTC Answer ¶ 93. A disinterested lawyer
would conclude that DTC could not properly ask for such a representation agreement with
Haverhill, especially because adverse public interests were at the heart of the conflict. In DTC’s
own words, its conflict was “insuperable” and could not be waived. See Boyle’s Case, 136 N.H.
21, 24 (1992). It is not entitled to attorney fees. In re Estate of McCool, 131 N.H. at 351.
II. Even if Haverhill could waive DTC’s conflict, DTC did not obtain “informed
consent, confirmed in writing” from Haverhill, therefore it engaged in a clear
conflict of interest and has no right to demand legal fees.
26. The reasoning behind Rule 1.7 of the Rules of Professional Conduct is
straightforward: attorneys owe their current clients an absolute duty of loyalty. While some

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concurrent conflicts are “insuperable,” others are not. All concurrent conflicts, like the one
between DTC and Haverhill, must be evaluated under Rule 1.7, set forth below.
a. New Hampshire Rules of Professional Conduct Rule 1.7
27. A 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 lawyer. N.H. R. Prof. Cond. 1.7(a). In a
situation where a lawyer seeks to take on representation that is or may be adverse to the interests
of one of her existing or former clients – or where, for another reason, such as personal interest,
she would be personally prohibited from handling a particular matter – the nature of her conflict
is sometimes said to be “direct.” See Flamm, Richard E, Conflict of Interest in the Practice of
Law, Causes and Cures, Curing Conflicts § 23.3, p.473 (2015).
28. Notwithstanding the existence of such a direct conflict or significant risk in
representation due to a conflict, Rule 1.7(b) enumerates a four-pronged exception to the general
prohibition on representation in situations involving concurrent conflicts, as follows:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each client gives informed consent confirmed in writing.
29. The American Bar Association’s Comment on Model Rule 1.7(b) summarizes an
attorney’s obligations under Rule 1.7(b), stating it:
“requires the lawyer to obtain the informed consent of the client, confirmed in
writing…The requirement of a writing does not supplant the need in most cases
for the lawyer to talk with the client, to explain the risks and advantages, if any,
of representation burdened with a conflict of interest, as well as reasonable

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available alternatives, and to afford the client a reasonable opportunity to consider
the risks and alternatives and to raise…concerns. Rather, the writing is required
in order to impress upon clients the seriousness of the decision the client is being
asked to make and to avoid disputes or ambiguities that might later occur in the
absence of a writing.”
Am. Bar. Assn. Model Rules of Prof’l Conduct, Rule 1.7, Comment 20.
b. DTC did not “fully disclose” its conflict of interest to the Town
Manager and the Selectboard, thus, Haverhill was not fully informed
of DTC’s conflict, and DTC’s conflict was not waived.
30. “The law firm, not the client, has a burden of full disclosure.” El Camino Res.,
LTD v Huntington Nat’l Bank, 623 F. Supp. 2d 863, 882 (W.D. Mich. 2007). The lawyer is
required to provide details of the conflict so that the client can weigh and measure the nature of
the contrary interests.” Image Tech. Servs., Inc. v. Eastman Kodak Co., 820 F.Supp. 1212, 1217
(N.D. Cal. 1993). Thus, “[t]he effect of a waiver…depends upon whether the clients have given
truly informed consent.” In re Congoleum Corp., 426 F.3d 675, 690 (3d Cir. 2005).
31. “[C]ourts have made it clear that it is not sufficient to leave the client to infer the
full nature of a conflict from only bits and pieces of actual or constructive knowledge. CenTra,
Inc. v. Estrin, 538 F.3d 415-416 (6th
Cir. 2008)(“the attorney must convincingly establish the
client’s knowledge as to the specific conflict”). At minimum, counsel must explain implications
of the particular conflict, or potential conflict, in sufficient detail, to bring home to the client the
signification of the conflict, and any potential risks, adverse effects, or other consequences the
conflict may have for the client in a manner that is sufficient to enable him to come to a
reasonable judgment about the wisdom of allowing counsel to proceed with the representation,
despite the conflict, or to turn the matter over to different counsel. See Flamm, Richard E,
Conflict of Interest in the Practice of Law, Causes and Cures, Curing Conflicts § 25.4, p.514
(2015)(citations omitted).

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32. Without full disclosure, a client’s acquiescence in a lawyer’s conflict is not
informed and tantamount to no consent at all. Id. at § 25.1, p. 506, citing Selby v. Revlon
Consum. Prods. Corp., 6 F. Supp. 2d 577 (N.D. Tex. 1997). Indeed, when detailed information
is not disclosed about the conflicts, and only some of the relevant information is disclosed, there
is not full disclosure, and it does not amount to informed consent. Woolley v. Sweeney, 2003
WL 21488411, at *6 (N.D. Tex. 2003); see also Int’l Bus. Machs. Corp. v. Levin, 579 F.2d 271,
282 (2nd Cir. 1978)(“Clearly, full and effective disclosure of all the relevant facts must be made
and brought home to the prospective client…the ethical rule specifically imposes upon an
attorney the burden of affirmatively providing disclosure and obtaining consent.”).
33. Here, DTC has not met its burden as the record is absent of DTC fully informing
Haverhill of its clear conflict of interest. Indeed, there are only two instances in the record where
DTC’s conflict was discussed: neither demonstrate full disclosure.
34. First, DTC Attorney Maher wrote to Assistant Town Manager Boucher “we had
the required discussions [about DTC’s conflict] with both the Selectboard and Woodsville, such
that no issues arise out of our representation.” SOF, ¶ 59, DEK aff., Ex. 18, p. 4 (ToH000145,
Email between Maher and Boucher, Jan. 13, 2023). Admittedly, DTC did not have those
“required discussions” with Ms. Codling, who administers attorney contracts, and waives
attorney conflicts, on behalf of Haverhill. Id.; Codling aff., ¶¶ 5, 25-26; Boucher aff., ¶ 15. In
fact, Ms. Codling emphatically expressed to DTC Attorney Christopher Boldt that DTC had “a
very clear conflict of interest” and “[we] do not believe it is ethical” for Attorney Hawkins to
represent Haverhill. SOF ¶ 54; DEK aff., Ex. 27 (Email from Codling to Boldt, Jan. 12, 2023);
see also DTC Answer ¶¶ 41, 42. Although DTC Attorney Christopher Boldt promised to
complete conflict checks for Town Administration, he deliberately “remain[ed] silent per

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instructions” and never responded. SOF ¶ 58; Am. Complaint, Ex. 8 (Email from Boldt to Maher
and Hawkins, Jan. 13, 2023); DTC Answer ¶¶ 46, 91; Boucher aff., ¶ 16; Codling aff., ¶ 24.
Town Administration was not even consulted by DTC about its conflict of interest; thus, full
disclosure was never made. Boucher aff., ¶ 16; Codling aff., ¶¶ 24-25.
35. Second, Selectman Robbins’ draft public statement for the Selectboard’s January
17, 2023 public meeting mentions the “discussions” DTC apparently had with the Selectboard,
asserting DTC “outlined a conflict that included the Woodsville Fire District.” SOF ¶¶ 85-86,
DEK aff., Ex. 41 (Email from Katie Williams to Hawkins, attaching Robbins draft public
statement). However, “outlining a conflict” amounts to “only bits and pieces of actual or
constructive knowledge” of the conflict, which courts have made clear is insufficient to merit
“full disclosure” under Rule 1.7(b). See CenTra, Inc., 538 F.3d at 415-416.
36. Tellingly, Hawkins substantially revised Selectman Robbins’ public statement
that mentioned DTC’s conflict, by deleting the phrase “outlined a conflict that included the
Woodsville Fire District” to say, “[w]e did not feel that [the conflict] was serious because the
Woodsville lawsuit settled and we had no plans to reopen it, and the DRA issue was not related
to that case.” SOF ¶ 86 (DEK aff., Ex. 41 (Robbins draft statement) compare with SOF ¶ 87
(Am. Complaint, Ex. 10 C (Hawkins revised statement). However, Hawkins’ substantive
revisions were demonstrably false: the “DRA issue” was directly related to Haverhill’s funding
of Woodsville’s highway department, e.g. Warrant Article 27 (2022), which was the subject of
the 2020 litigation between Haverhill and Woodsville. SOF ¶¶ 12, 16, 29, 30; DEK aff., Ex. 5,
p. 12 (Feb. 7, 2022, Selectboard Meeting Minutes, warrant article 27); DEK aff., Ex. 11 (letter
from DRA to Haverhill, Dec. 22, 2022); Codling aff., ¶¶ 13, 15.

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37. The undisputed facts demonstrate DTC failed to provide “full disclosure” of its
conflict to Haverhill for there to be “informed” consent of any conflict waiver.
c. DTC did not provide Haverhill with a “reasonable opportunity” to
consider its conflict of interest and therefore any waiver is invalid.
38. The American Bar Association’s Comment on Model Rule 1.7(b) states an
attorney’s obligations under Rule 1.7(b) is to “afford the client a reasonable opportunity to
consider the risks and alternatives about the conflict and to raise…concerns.” Am. Bar. Assn.
Model Rules of Prof’l Conduct, Rule 1.7, Comment 20. However, the undisputed facts
demonstrate DTC did not afford Haverhill that opportunity.
39. DTC was meeting with various members of the Selectboard and providing legal
advice without even discussing its conflict. SOF ¶¶ 25-26; DEK aff., Ex. 7, pp. 1-3 (Email
between Knapp and Hawkins dated September 29, 2022 – October 5, 2022); compare with DEK
aff., Ex. 8, (DTC000963)(DTC billing statement, billing entry for 9/29/22, 1/10/23, 1/11/23).
But on the day Hawkins and Maher did have those “discussions” with the Selectboard about its
conflict – January 12, 2023 – DTC billed the Town for 11.75 hours of alleged work. Id. at
DTC000963-64). Notwithstanding that Ms. Codling was required to have been provided a
reasonable opportunity to consider DTC’s conflict, even if this Court finds only the Selectboard
was required to be consulted by DTC about its conflict, the undisputed material facts demonstrate
that DTC did not provide the Selectboard with a “reasonable opportunity” to consider its conflict.
Id. Thus, any conflict waiver is invalid. See Am. Bar. Assn. Model Rules of Prof’l Conduct,
Rule 1.7, Comment 20.
d. Governmental entity Haverhill did not consent in writing to waiving
DTC’s conflict of interest, and therefore, its conflict waiver is invalid.

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40. A governmental entity is held to a different standard when approving a written
conflict waiver since the public interest is involved. As mentioned above, the New Hampshire
Rules of Professional Conduct observe that decisional law in some states limits the ability of a
government client, such as a municipality, to consent to a conflict of interest. See N.H. R. Prof.
Cond. 1.7(b) citing 2004 ABA Model Rule Comment, Rule 1.7 [16]. Notwithstanding a
government may not even be able to waive a conflict under certain circumstances, if a governing
body is attempting to waive an attorney’s conflict, it must take formal action to do so. See
Moulton v. Beals, 98 N.H. 461, 463 (1954). It is not enough for one Selectman to sign a conflict
waiver unless formal action is taken by the Selectboard giving that Selectman such authority, as
the New Hampshire Supreme Court observed:
“[S]electmen have not been regarded as special agents of the Town, ‘clothed with the
general powers of the corporate body for which they act’. They can only exercise such
powers and perform such duties as are properly incident to the special and limited
authority conferred on them by their office. They are empowered to do only such acts as
are required to meet the exigencies of ordinary town business.
Moulton v. Beals, 98 N.H. 461, 463 (1954).
41. The New Hampshire Supreme Court has long recognized that all private parties
dealing with government officials are charged with “notice of the extent and limits of their
authority.” Richards v. Columbia, 55 N.H. 96, 99 (1874); see Great Falls Bank v. Farmington,
41 N.H. 32, 44 (1860). Indeed, United States Supreme Court Justice Holmes’ admonition that
“[m]en must turn square corners when they deal with the Government” is applicable here. See
Rock Island etc. R.R. v. United States, 254 U.S. 141, 143 (1920).
42. In this case, attorney conflict waivers are not ordinary town business, and were
the primary responsibility of the Town Manager to address. Codling aff., ¶ 5; Boucher aff. ¶ 15.
DTC was on notice and presumed to know the extent of authority one Selectman has (1) without

17. 17
the vote of the governing body and (2) without the approval of the Town Manager in a Town
Manager form of government. See Richards v. Columbia, 55 N.H. 96, 99 (1874). And yet DTC
proceeded anyway, with only signature of one selectman that was obtained under curious
circumstances, and without a vote of the Selectboard authorizing the same. SOF ¶ 78. DTC’s
conflict was not “confirmed in writing” by governmental entity Haverhill and is invalid.
e. Notwithstanding the Selectboard did not vote to give Selectman Steve
Robbins authority to sign DTC’s conflict waiver, as an employee of
Woodsville, Robbins was disqualified from signing DTC’s conflict waiver
because he could not impartially evaluate DTC’s conflict
because it specifically pertained to Woodsville.
43. The determination of whether a municipal official has a direct personal and
pecuniary interest in the matter under consideration or has other interests which would disqualify
him from acting therein depends on the circumstances of each case. Atherton v. Concord, 109
N.H. 164 (1968); see Lorenz v. New Hampshire Admin. Office of the Courts, 151 N.H. 440, 443
(2004)(“test for the appearance of partiality is an objective one, that is, whether an objective,
disinterested observer, fully informed of the facts, would entertain significant doubt that justice
would be done in this case” (quoting Taylor-Boren v. Isaac, 143 N.H. 261, 268 (1998)). As a
general rule, a court will find that there is a conflict of interest when a public officer is involved
in a matter in which he has a direct personal and pecuniary interest. See Preston v. Gillam, 104
N.H. 279 (1962)). And a court will overturn a board’s decision if a disqualified person
participated, whether or not he or she influenced the outcome. See Appeal of Keene, 141 N.H.
797, 799-800 (1997).
44. Deciding to waive an attorney’s conflict of interest is an act that can only be done
after weighing and considering the evidence of the conflict, after full disclosure. Thus, a
Selectboard would be engaging in a judicial capacity rather than an administrative one when

18. 18
determining whether to waive a conflict of interest. And the State Constitution mandates that all
judges be “as impartial as the lot of humanity will admit.” N.H. Const. pt. I, art. 35.
45. Here, the evidence demonstrates Steve Robbins was not impartial in evaluating
DTC’s conflict. Selectman Robbins is Woodsville’s Fire Chief, receive annual compensation for
his services, and serves at the direction of Woodsville’s Commissioners. SOF ¶ 9, Ex. 3
(newspaper article noting Robbins deep ties with Woodsville); Codling aff., at ¶ 7. And DTC’s
conflict specifically related to Woodsville: Attorney Hawkins prior representation of Woodsville
against Haverhill. SOF 46, DEK aff., Ex. 21 (Email between Knapp and Hawkins, Jan. 11, 2023).
A disinterested observer, fully informed of the facts, would entertain significant doubt Robbins
could impartially sign DTC’s conflict waiver.
46. For instance, when Selectboard Chair Garofalo refused to sign DTC’s conflict
waiver, Robbins directed DTC to insert his name in the conflict waiver instead. SOF ¶ 76, DEK
aff., Ex. 32 (Email correspondence between Maher and Robbins, Jan. 14, 2023). When DTC did
not produce a new conflict waiver letter, Robbins struck Chairman Garofalo’s name, printed his
own, then signed DTC’s conflict waiver on a Sunday morning at Woodsville’s District offices,
where he worked. SOF ¶ 78; DEK aff., Ex. 37 (Haverhill conflict waiver signed by Steve
Robbins on 1/15/23); DEK aff., Ex. 36 (RFA 26 & 27, referencing RFA Ex. 5 attached thereto,
text messages between Robbins and Hawkins acknowledging signing at District offices);
Codling aff., ¶ 7; DEK aff., Ex. 3 (newspaper article noting Robbins work for Woodsville); SOF
¶78, DEK aff., Ex. 38 (Email between Woodsville’s Administrator Shelton and
Hawkins/Robbins). Thus, Robbins could not impartially evaluate DTC conflict waiver that
related to Woodsville, because of his personal and pecuniary interest in Woodsville, rendering
his signature void. See Appeal of Keene, 141 N.H. at 799-800.

19. 19
47. Based on the above, there is no genuine issue of material fact that DTC violated
the Rules of Professional Conduct by engaging in a clear conflict of interest with Haverhill.
DTC’s conflict with Haverhill was nonconsentable, but even if it was, DTC failed to obtain a
valid conflict waiver. Thus, DTC has no right to demand legal fees. In re Estate of McCool,
131 N.H. at 351. All remaining counts for Declaratory Judgment are moot. But, to the extent
the Court may address Counts 1 & 2, they are set forth below.
III. Because the DRA tax rate setting matter related to Woodsville, Town Manager
Codling’s approval was required for DTC’s representation to be valid.
48. Under New Hampshire law, the Town Manager shall “have the power and it shall
be her duty to perform such other duties, consistent with her office, as may be required of her by
vote of the selectmen.” RSA 37:6, IX.
49. In this case, a quorum of the Selectboard voted to give Ms. Codling “full authority
over legal matters related to the Woodsville Precinct, its commissions, and enterprises” by action
of the Selectboard. SOF ¶ 10, Am. Complaint, Ex. 1 (Meeting Minutes, March 6, 2020).
Therefore, it was Ms. Codling’s duty and responsibility to hire legal counsel to matters related
to Woodsville. Codling aff. ¶ 5; see RSA 37:6, IX.
50. Insofar as the DRA tax rate setting matter is concerned, the undisputed evidence
demonstrates it is related to Woodsville: the DRA’s letter to Haverhill refusing to set the rates
says that DRA did not setting the rates because of Woodsville’s appeal of Warrant Articles 27
& 28 which required Haverhill to fund Woodsville’s services. SOF ¶ 29, DEK aff., Ex. 11 (letter
from DRA to Haverhill dated December 22, 2022 refusing to set tax rate); Codling aff. at ¶¶ 13,
15. Moreover, Hawkins contacted Woodsville’s attorney to provide Haverhill’s “preliminary
gameplan” regarding the DRA tax rate setting matter, and forwarded DRA’s email regarding the
tax rates to Woodsville’s attorney “to close the loop.” SOF ¶ 43, Am. Complaint, Ex. 6 (Email

20. 20
between Hawkins and Maher, Jan. 11, 2023); DTC Answer, ¶ 38; compare with SOF ¶ 69; DEK
aff., Ex. 31 (Email from Hawkins to Macomber, Jan. 13, 2023).
51. Because the DRA tax rate matter related to Woodsville, Ms. Codling’s approval
of counsel was a condition precedent to any attorney being retained for such matter – unless or
until the Selectboard rescinded or modified the action giving her full authority over all matters
related to Woodsville. See SOF ¶ 10, Am. Complaint, Ex. 1 (Meeting Minutes, March 6, 2020).
Similarly, because DTC’s conflict of interest related to Woodsville, Ms. Codling’s approval of
DTC’s conflict waiver was a condition precedent to waiving DTC’s conflict.
52. What is more, Hawkins even recognized that Town Managers have authority over
attorneys when the Selectboard expressly authorizes it, which is what happened here. DEK aff.,
Ex. 51, (Email from Hawkins to Board, Jan. 31, 2023). Ms. Codling did not approve DTC’s
hiring on the DRA tax rate matter and expressly advocated against Attorney Hawkins
representing the Town for ethical reasons. Codling aff., ¶ 23; SOF ¶ 54; DEK aff., Ex. 27 (Email
from Codling to Boldt, Jan. 12, 2023); see also DTC Answer ¶¶ 41, 42. Therefore, DTC does
not have a valid representation agreement with Haverhill, because it never obtained the Town
Manager’s consent.
IV. There is no genuine issue of material fact that a quorum of the Selectboard did
not waive DTC’s conflict or approve DTC’s Representation Agreement in a duly
warned public meeting.
53. A quorum is “the number of members [of a public body] who must be
present…before business may be transacted.” Appeal of Net Realty Holding Trust, 127 N.H.
276, 278 (1985)(quoting Black’s Law Dictionary 1130 (5th
Ed. 1979). And when a quorum of a
public body is convened to discuss or act upon matters within its jurisdiction, open-meeting
requirements apply. See RSA 91-A:2.

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54. Here, DTC asserts in its Counterclaim that the Selectboard “voted to hire DTC”
on January 12, 2023, (DTC Counterclaim, ¶ 7) however, DTC admits the Selectboard meeting
minutes do not reflect that DTC was retained on January 12, 2023. DEK aff., Ex. 25, RFA #6,
referencing RFA Ex. 1). And, in its discovery responses, DTC claims it was retained at the
Selectboard’s January 17, 2023 meeting, under the guise of an emergency. Id.; SOF ¶ 87; Am.
Complaint, Ex. 10 C (Hawkins revision of Robbins public statement, p. 3 of Exhibit). However,
the undisputed evidence demonstrates there was never a real emergency for DTC to represent
Haverhill, and it was never retained by a quorum vote of the Selectboard.
55. In mid-May 2022, Selectman Graham contacted DTC about representing
Haverhill. SOF ¶ 22, DEK aff., Ex. 5 (email correspondence between DTC and Graham). In
September and October 2022 Selectman Knapp corresponded with DTC about representing
Haverhill regarding Warrant Articles 27 & 28. SOF ¶¶ 24-26, DEK aff., Ex. 7, pp. 1-3 (Email
correspondence between Knapp and Hawkins/Maher); Id., Ex. 8, (DTC entered a billing entry
for discussions with Selectman Knapp on September 29, 2022). In October 2022, DTC internally
discussed representing Haverhill, opining Ms. Codling was too closely aligned with the DW law
firm, and the DW law firm was not providing Haverhill competent legal advice. SOF ¶ 27, DEK
aff., Ex. 9 (Email between Hawkins and Maher, October 13, 2022). On November 23, 2022,
Selectman Knapp informed Hawkins that the Selectboard desires “to hire DTC to terminate our
Town Manager.” SOF at ¶ 28, DEK aff., Ex. 10 (Email Knapp and Hawkins, Nov. 23, 2022.
56. On January 10, 2023, a quorum of the Selectboard decided to have Town
Administration reach out to DTC to see if they were interested in representing Haverhill on the
DTC tax rate matter. SOF ¶ 36, DEK aff., Ex. 16, (Selectboard meeting minutes) (Motion #1).
And that is what Town Administration did. SOF ¶ 37, Am. Complaint, Ex. 4 (Email from

22. 22
Codling to Boldt dated Jan. 10, 2023)(emphasis added); DTC Answer ¶ 34. Attorney Boldt
responded that he would have to “perform conflict checks” before the “definitive yes.” SOF ¶
40, Am. Complaint, Ex. 5 (Email from Boldt to Codling, Jan. 11, 2023); DTC Answer ¶ 35. But
that “definitive yes” from Attorney Boldt was never provided. Codling aff., ¶ 24.
57. When DTC attempted to represent Haverhill without any action of the
Selectboard waiving DTC’s conflict or formally hiring DTC, Town Administration informed
DTC it had no authority to represent the Town. SOF ¶ 63, DEK aff., Ex. 18, p. 1-3 (ToH000143-
45), Email between Maher and Boucher, Jan. 13, 2023); DTC Answer ¶¶ 49, 50. In fact, DTC
admits that it was told on January 13, 2023 its services would be duplicative because the DW
law firm was representing Haverhill on the DRA tax rate matter. SOF ¶ 64, DEK aff., Ex. 28
(RFA # 41). But DTC continued to press on, drafting an email for Selectman Robbins on January
14, 2023 to send to Town Administration stating that DTC was representing the Town, and that
the DW firm was not representing Haverhill. SOF ¶ 72; Am. Complaint, Ex. 10B.
58. While DTC claims it was retained at the January 17, 2023 Select Board’s meeting
after the DRA tax rate matter was resolved, the agenda for the January 17, 2023 meeting
demonstrates there was no action item to retain DTC. SOF ¶ 89, DEK aff., Ex. 42 (agenda).
Rather, the Selectboard attempted to “ratify” its previous action on January 10, 2023 – by
amending the draft meeting minutes of January 10, 2023: from having Town Administration
reach out to DTC to see if they were interested in representing Haverhill to an actual vote of
hiring DTC. SOF ¶ 91, DEK aff., Ex. 43, p. 2 (Jan. 17, 2023, Selectboard Meeting Minutes).
However, the attempt to amend meeting minutes was wholly improper, inconsistent with what
actually occurred at the January 10, 2023 meeting, and is not a valid action in accordance with
Haverhill’s SOP. SOF ¶ 4, DEK aff., Ex. 2 (Selectboard SOP).

23. 23
59. That is why after the January 17, 2023 meeting, on January 30, 2023, the
Selectboard apparently attempted to hire DTC, but no such action ever occurred. On January
31, 2023, Selectman Robbins informed Hawkins the Selectboard voted “last night” to retain
DTC. SOF ¶ 101, DEK aff., Ex. 50, (Email between Hawkins and Maher, Jan. 31, 2023).
Believing that the Selectboard voted to retain DTC on January 30, 2023, Hawkins emailed Maher
that they mark this day on the calendar with a “gold star.” DEK aff., Ex. 50, (Email between
Hawkins and Maher, Jan. 31, 2023). However, both the meeting minutes and non-meeting
minutes demonstrate the Selectboard did not vote to retain DTC at the January 30, 2023
Selectboard meeting. SOF at ¶ 100, DEK aff., Ex.’s. 48 & 49 (meeting minutes and non-meeting
minutes for 1/30/23) And while DTC claims it was also retained to evaluate the Town Manager’s
performance, there are no meeting minutes ever hiring, or even discussing hiring, DTC for that
purpose.
60. This is especially true because on January 31, 2023 Hawkins informed Selectman
Robbins to disregard DTC’s representation agreement that was mailed to Robbins personal
home, because that agreement did not include “personnel matters” to review the Town
Manager’s performance. SOF ¶¶ 103-104, DEK aff., Ex. 52 (Email from Hawkins to Robbins,
Jan. 31, 2023 compare with DEK aff., Ex. 36 (RFA ## 26 & 27, referring to RFA Ex. 5 p.2).
61. Hawkins then added “personnel matters” to DTC’s representation agreement
without any formal action from the Selectboard authorizing the same, and emailed the revised
version to Robbins. SOF ¶¶ 104, DEK aff., Ex. 52 (Email from Hawkins to Robbins, Jan. 31,
2023. Robbins then signed the representation agreement on February 9, 2023, without any
authority to do so. SOF ¶¶ 108-109, DEK aff., Ex. 36, (RFA ## 26 & 27, RFA Ex. 5, p.3).

24. 24
62. Tellingly, all of DTC’s billing invoices at issue were sent to the personal home
of Steve Robbins, not Town offices, and the lion’s share of billing occurs before February 9,
2023, when Robbins signed the document. SOF ¶ 110, DEK aff., Ex. 53 (DTC Interr. Ans. #14).
63. “Men must turn square corners when they deal with the Government.” Rock
Island etc. R.R. v. United States, 254 U.S. 141, 143 (1920). And the corners DTC turned with
Haverhill were anything but square. These DTC Lawyers, who clearly knew better, (SOF ¶¶ 1-
3) ignored open-meeting requirements, ignored Haverhill’s Standard Operating Procedures, and
ignored common practice for retaining a municipal government client. There is no genuine issue
of material fact that a quorum of the Select Board never voted to retain DTC and never waived
DTC’s conflict of interest. Therefore, there is no enforceable representation agreement between
Haverhill and DTC.
Conclusion
64. DTC engaged in a clear conflict of interest with Haverhill, and therefore, it is not
entitled to receive payment for attorneys’ fees from Haverhill. Summary Judgment should be
granted on this ground alone. But if this Court finds there is a genuine issue of material fact
regarding DTC’s conflict, DTC was not retained by the Town Manager and/or by the Selectboard
and has no enforceable agreement with the Town. Thus, the arbitration declaratory judgment
count (#4) is moot. DTC has no right to demand legal fees from Haverhill.
65. A hearing is requested on this motion.
WHEREFORE, Haverhill prays for the following relief:
1. An Order Granting its Motion for Summary Judgment.
2. A determination that DTC has violated the Rules of Professional Conduct by
engaging in a conflict of interest with Haverhill.

25. 25
3. A determination that because DTC engaged in a conflict of interest it cannot seek
payment for legal fees from Haverhill.
4. A determination that a quorum of the Selectboard did not act in a duly noticed open
meeting pursuant to its Standard Operating Procedures to waive DTC’s conflict of
interest and therefore DTC’s conflict waiver is invalid.
5. A determination that the Town Manager’s approval for waiving DTC’s conflict of
interest was required, and a condition precedent to authorizing DTC’s conflict
waiver because the DRA tax rate setting matter related to Woodsville, DTC’s
conflict related to Woodville, and the Selectboard had given the Town Manager full
authority over all legal matters related to Woodsville pursuant to RSA 37:6, IX.
6. A determination that a quorum of the Selectboard did not take action in a duly
noticed open meeting pursuant to its Standard Operating Procedures to retain DTC
for the DRA tax rate setting matter or for personnel matters to evaluate the Town
Manager’s performance, and therefore DTC’s representation agreement is void.
7. A determination that the Town Manager’s approval for hiring DTC on the DRA tax
rate setting matter was required, and condition precedent to authorizing DTC’s
representation, because the DRA tax rate setting matter related to Woodsville.
8. Holding that DTC has no enforceable representation agreement with Haverhill.
9. Holding that DTC has no legal right to demand legal fees from Haverhill for its
billing at issue in this litigation.
10. Awarding attorney’s fees and costs to Haverhill for all matters related to this action.
11. For all other relief that is fair and just under the circumstances.
Respectfully submitted,
TOWN OF HAVERHILL
Dated: March 18, 2024 By its attorney,
Center Harbor, NH
/s/ Derek E. Kline
Derek E. Kline, NH Bar #20649
P.O. Box 1577
Center Harbor, NH 03226
Telephone: (603) 707-1721
Email:derekekline@gmail.com
Attorney for Town of Haverhill

26. 26
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served on this date by Superior Court
E-Filing System to counsel for DTC.
Dated: March 18, 2024 By, /s/ Derek E. Kline