Conflict of Interest - Vermont Bar Association

17-02 Conduct of the predecessor client corporation, when no other lawyer currently at the firm had a role with the deceased partner’s representation or has access to the files, and the current class action is not substantially related to the deceased partner’s former representation pursuant to the V.R.P.C. 1.9 or 1.10 former client and imputation of conflicts rules.

15-03 Assuming a nonprofit board of directors is properly elected, an attorney employed by the nonprofit can properly take his instructions from a majority decision of that board, notwithstanding minority opposition within the board.

15-02 Where a seller refuses to hire an attorney to provide the professional services normally performed by a seller’s attorney in a real estate transaction, buyer’s attorney may perform those services on behalf of the buyer and charge the buyer for the additional attorney time expended, so long as buyer’s attorney informs the seller in writing that: (1) the attorney represents the buyer; (2) no attorney-client relationship exists between seller and buyer’s attorney; (3) all work to be performed by the attorney will be performed on the buyer’s behalf; (4) the buyer’s position is adverse to that of the seller; and (5) seller should seek advice from an attorney if he has questions about the transaction.

14-01 A licensed attorney employed by a state department as an investigator cannot serve both as a witness in an administrative hearing and as an advocate presenting the case in lieu of department legal counsel consistent with V.R.P.C. 3.7 if the attorney is a necessary witness in the hearing and is testifying about a contested issue.

14-02 A lawyer, who has represented a corporation and its sole shareholder, may subsequently represent the purchaser of the corporate shares and the corporation where the interests are materially adverse, provided that both the former shareholder and the new shareholder give informed consent to such representation, confirmed in writing. In addition, a lawyer may serve as an as escrow agent of the pledged stock held as security in the sale, provided that both parties give informed consent.

13-01 It would be a violation of Vermont Rule of Professional Conduct 1.8(e) for Plaintiff’s lawyer to sign a Hold Harmless Agreement agreeing to hold Defendant’s liability carrier harmless in the event his client (Plaintiff) fails to satisfy his health insurance carrier’s subrogation in a personal injury claim and in the further event the liability carrier is required to pay that claim. Signing this document would constitute prohibited financial assistance in connection with litigation and would not be subject to one of the Rule 1.8’s exceptions.

11-02 Although there have been changes in the Rules of Professional Conduct and in the rules and regulations applicable to real estate closings, the Committee concludes the opinion expressed in Opinion 2001-02 remains valid under the present circumstances. The Committee continues to believe that an attorney may represent the lender and the buyer/borrower in a real estate closing if the attorney complies with the provisions of Rule 1.7. The requirements for representing multiple parties in a real estate transaction are set out in Rule 1.7. The additional issues raised by changes in various rules and regulations related to real estate closings are a factor in determining whether the possibility of conflicting interests is of such significance that an attorney cannot provide diligent and competent representation to both parties simultaneously.

10-02 An attorney in a firm that represents a municipality may not represent criminal defendants in cases where police officers employed by municipal clients of the firm are witnesses against the criminal defendant/client of the attorney.

93-03 It is not unethical for an attorney to appeal probate court reduction of his executor’s fee without first petitioning to appoint a special administrator to represent the estate’s interests.

09-02 Determining whether the current representation of a client presents a conflict of interest involves the application of objective standards and does not depend upon the undefined and very general concept of “appearance of impropriety”.

09-05Synopses: (1) Where, six years earlier, a law firm prepared proposed estate documents for a husband and wife at the husband’s request; where the husband and his various legal entities have been clients of the firm for thirteen years; where all information utilized for the preparation of the estate documents was provided by the husband/client; and where the firm’s only contact with the wife was to mail copies of the proposed documents to her; and where the husband and wife are now involved in a divorce proceeding, the firm may continue to represent the husband/client and his various legal entities in matters unrelated to the divorce proceeding.

(2) Additionally, the firm is entitled to secure the payment of its fees through a mortgage from the husband’s business entities as long as it satisfies the requirements of Rule 1.8 for a written agreement, after the client has been given an opportunity to seek advice of independent counsel.

08-01 An Attorney who has previously had and continues to have an active practice representing sellers, purchasers, and lenders in real estate transactions should not participate in a volunteer project to research the existence of unidentified corridors and public ways sponsored by a Town, if the Attorney might be put in the position of researching claims on properties with respect to which the Attorney has represented a client or is representing a client. If the Attorney proposes to be involved in the town committee’s work, the Attorney should refrain from representing clients engaged in real estate transactions where the research on unidentified corridors may result in future claims of an encumbrance on the client’s property.

08-04 1) A lawyer may not continue to represent a client in trial if another current client will be called as a directly adverse witness by opposing counsel and where the lawyer possesses confidential client information adverse to the client witness that should be used during cross-examination of the client witness.

2)Whether the mid-trial disclosure of the client/witness requires preclusion of the witness, a new trial, or some other consequence is a legal question for the court and outside the scope of this Section’s authority.

07-04 1. A newly hired deputy state’s attorney must not disclose any confidential information learned by him or her concerning clients of the law firm for which the deputy had formerly worked.

2. A newly hired deputy state’s attorney must not participate in the prosecution of any case in which he or she had taken part “personally and substantially” while the deputy was engaged in private practice.

3. The office of the state’s attorney is not disqualified from continuing to prosecute cases where the defendants have been and still are represented by the law firm at which the new deputy state’s attorney formerly had been employed.

06-07 Lawyer may represent private clients in matters before Lawyer’s former governmental agency, provided that Lawyer had not participated personally and substantially in such matters during government service, absent consent of the governmental agency; and provided that in the new representation Lawyer would not use or reveal confidences of Lawyers’s former government client.

06-02 A law firm may hire an associate who previously represented a party the law firm is currently suing on an unrelated matter provided no information from the prior representation is revealed or used to the client’s disadvantage.

06-05 (1) A lawyer who is representing a terminated employee in litigation against the company that formerly employed her may communicate with a manager of the company if the sole topic of discussion is whether the lawyer will represent the manager in the manager’s separate claim agains the company and so long as no information protected by V.R.E. 502 is disclosed. (2) A former manager is not a “representative” of the company as defined by V.R.E. 502, but the anit-contact provisions of Rule 4.2, as interpreted by the Vermont Supreme Court in Baisley v. Young, may restrict a lawyer who has commenced an action against the company on behalf of a former employee from discussing that action with the former manager if the former manager remains a company employee. (3) A lawyer may represent a former manager and a former employee in separate actions against the company that employed both, but if the former manager is later called as a witness by the company to testify against the former employee, such circumstance may require the lawyer to withdraw from further represenation of one or both clients depending on the circumstances existing at the time and whether each client consents to the lawyer’s continued representation of both clients.

05-03
When a law firm is retained by a client who previously had a case before a judicial officer and where the judicial officer was subsequently employed by the firm but has since left the firm, the firm is not required to obtain waivers of conflict of interest from opposing parties, assuming that the law firm has not obtained from the judicial officer any information about the opposing party’s case.

05-02
(1.) The requesting attorney, who is general counsel to a state agency, should not share any information obtained in the course of representing the agency with an attorney whose firm represents an opposing party in any matter to which the agency is a party.

(2.) The requesting attorney should not personally participate, directly or indirectly in any active matter in which the requesting attorney’s spouse is involved as an attorney on behalf of the opposing party.

05-01 In the absence of the consent of both parties, a law firm may not continue to represent a client in pending litigation if the firm hires an attorney from a firm representing an opposing party in that litigation.

04-03 An attorney may not simultaneously represent a client who is selling a parcel or real property and provide limited representation to the buyer of the same real estate by providing a title insurance policy to such buyer. The scope of the obligations inherent in issuing the title insurance policy creates a contemporaneous conflict of interest that is of such a serious character that the conflict cannot be properly waived under Rule 1.7. An attorney representing a seller may properly prepare and issue a title insurance policy naming the buyer when the Seller is under a contractual obligation to provide the buyer with title insurance.

03-06 An Attorney who is a member of a firm and is also an appointed member of a quasi-judicial body that promulgates rules and hears administrative appeals, must comply with the spirit of Rule 1.7 of the Vermont Rules of Professional Conduct (the “Rules”) with respect to “positional conflicts of interest”. In cases where the Board’s decision will have an impact on past or present firm clients or the firm itself, the Attorney must consider the following questions: (1) Will the outcome of the decision affect a limited number of non-parties to the proceeding? (2) Will a past or present client or clients of the firm be among those to be affected? (3) Is the potential impact upon the firm’s client or clients an “outside consideration” that may affect the Attorney’s judgment?

03-04 Under strictly limited circumstances, an attorney who is “of counsel” to a law firm may work part time as an Assistant Attorney General, when the law firm and the Attorney General’s office represent adverse parties in litigation not related to the work of the attorney for the State.

02-04 One law firm attorney may engage in lobbying activities on specific and
particular issues before the state legislature on behalf of the firm’s clients while a second attorney in the same firm serves as an elected member of the legislature if the lawyer-legislator does not participate in any aspect of legislation as to which the lawyer-lobbyist is representing the interests of the firm’s clients.

02-02 If a law firm uses a nonlawyer (here, an independent paralegal service)
to assist it in providing legal services to its clients, and other law firms use the same nonlawyer, will conflicts of interest be imputed between the nonlawyer and the law firms?

01-11
First Question: This opinion addresses two requests. First, an attorney who holds a position as a part-time State’s Attorney and also has a separate private practice, who is not otherwise prohibited by law, may represent a private party in a litigation matter where the State of Vermont is an opposing party and that is not related to the attorney’s position as a State’s attorney.
Second Question: With respect to the related request, the State (through the Attorney General’s office (the “AG”)) may continue to represent the requesting attorney as one of several defendants in an action against the State and other State’s Attorneys in a case testing the constitutionality of a law which is completely unrelated to the matter the requesting attorney is handling for the private client.

01-10 A public defender may represent clients whose interests are adverse to an institution which employs the public defender’s spouse so long as the public defender does not discuss matters pertaining to the representation with the spouse and as long as the spouse has no involvement in matters relevant to the client’s case.

01-02
SYNOPSIS ONE: The Committee revises its prior position on the propriety of an attorney representing a lender and a borrower in the same transaction. An attorney may represent a lender and a borrower in a real estate transaction if the attorney satisfies the requirements of Rule 1.7 of the Rules of Professional Conduct (the “Rules”) by concluding that: (a) the representation of the lender and borrower in the same transaction will not adversely affect the relationship with either client; (b) that the attorney’s judgment will not be materially limited by responsibilities to either client or to a third party; and, (c) that each client agrees to the dual representation after consultation. The consultation must occur sufficiently before the closing to allow either client to obtain separate representation if desired. The consultation must also include a discussion of the implications of the common representation and the risks and benefits of the common representation. The Committee continues to believe that it is not appropriate to represent a seller and buyer in a real estate transaction.
SYNOPSIS TWO: An attorney or law firm may form a title and escrow company to provide title and escrow services, but such services constitute law related services and the Rules apply to each attorney involved in providing these related services.

See also Advisory Ethics Opinions 90-8, 94-8, 95-03 and 95-09

01-03 An attorney who represented a national retailer (“Retailer”) in the bankruptcy arena from 1995-1999 cannot represent individuals seeking Chapter 7 representation who owe money to the Retailer, where the attorney has no consent for such representation from the Retailer and the Retailer has shared confidential information with the attorney.

00-12 A Vermont law firm who once represented a husband and wife in certain limited aspects of implementing an estate plan by reviewing deeds transferring Vermont real estate to effect the goals of the plan, may not later represent the estate of the deceased husband and the personal representative in the Vermont ancillary administration proceedings if the wife objects. Rule 1.9(a) restricts the Vermont law firm’s opportunity to represent a new client with interests adverse to those of a former client in the same or substantially related matter.

00-10 A lawyer who discloses a potential conflict to a caller who sought to retain the lawyer and divulge the general nature of an employer-employee disagreement and potential litigation and the name of the Employer, is not disqualified from representing the institutional client because the lawyer involved explained to the caller that a conflict existed and that the caller would have to seek legal representation elsewhere. Under these facts, the lawyer may not then inform the employer (the institutional client) of the telephone call and its content.

00-07 An attorney who formerly represented a corporation in litigation may subsequently handle an unrelated matter adverse to the president of that corporation provided that no confidential information is used to the disadvantage of the former client.

00-05An Attorney may represent a client in an action against a client of the firm where the attorney was previously employed, if the Attorney assures himself or herself that the Attorney has not personally worked for the client of the former firm during the time the Attorney was at the former firm and the Attorney has no knowledge of the matter about the representation from the employment at the former firm.

98-13 A lawyer may not represent a criminal defendant in a criminal case where another client in an unrelated matter is a State’s witness, notwithstanding that each client may make an informed consent after a full disclosure of any relevant facts concerning such dual representation, because such dual representation would involve an inherent risk of violation of one or more Disciplinary Rules.

98-08 A lawyer may not accept a fee from an investment advisor for referring clients to the advisor even with prior disclosure and consent by the client. Clients view recommendations to other professionals as part of their representation by their lawyers and expect their lawyers to act independently of any underlying financial interest in such a referral.

98-01 A lawyer may represent a spouse in a divorce proceeding and that spouse’s parents in a guardianship proceeding in which they seek guardianship of their grandchild so long as the lawyer can adequately represent the interests of both the spouse and the grandparents and they consent to the representation after full disclosure.

96-08 A law firm may not create an employee stock ownership plan (“ESOP”) using the stock of the law firm. Such a plan would be contrary to the Disciplinary Rules regarding lawyers engaging in the practice of law with non-lawyers. The Disciplinary Rules prohibit the ownership of any interest in a law firm by non-lawyers. In addition, the proposed ESOP would require that a lawyer in the firm act as the trustee of the ESOP. The attorney who was both a member of the firm and the trustee of the ESOP would face an impermissible and unavoidable conflict of interest in attempting to perform the necessary functions of both roles.

96-05 It is impermissible for a Lawyer representing personal injury claimants to execute a proposed “Medical Lien” form from client’s health care provider agreeing to protect the interests of the health care provider, if to do so may place Lawyer in conflict with client’s interests.

96-04 An attorney who contracts with a state office to provide representation for the office may not represent private clients in other cases in which the office is a party unless both parties consent after full disclosure of the possible effect of such representation on the exercise of the attorney’s independent professional judgment.

96-02 It is permissible for an assigned attorney to represent a criminal defendant even though the defendant (a) is subject to payment of a fee to a special fund for Public Defenders only upon being found guilty of an offense (DWI cases), and (b) may be required to pay part or all of the costs of representation by assigned counsel by order of court entered either at the time of assignment of counsel or subsequent to the assignment, including cases where the defendant is accused of violating probation for not having paid court-ordered sums to the Public Defender Special Fund.

96-01 An attorney who represents adult children who have been appointed as co-administrators of their parent’s estate and has brought a wrongful death action should not represent any of the heirs of the decedent in a distribution action pursuant to 14 V.S.A. § 1492, unless all the heirs are in agreement as to the distribution and give consent to the representation.

95-21 An attorney who is insured and is currently being defended in litigation by an insurance carrier may pursue an unrelated claim against that same insurance carrier for a client only if the client consents after full disclosure of the relationship and the potential for conflict.

95-15 An attorney is permitted to share office space with a nonlawyer with whom the attorney maintains an ongoing business relationship in addition to the attorney’s separate and ongoing practice of law provided the arrangements and relationship are such that client confidences and secrets are preserved, improper solicitation and fee splitting are avoided, and proper care is taken to maintain the exercise of independent professional judgment on behalf of the client, to avoid misleading the public and to avoid the appearance of impropriety in the arrangement.

95-14 The individual attorneys in two professional corporations practicing in the same community may enter into a partnership with each other for the sole purpose of owning an office building and converting it into two condominium units, each of which will then be sold to one of the two professional corporations. This is true even though the two professional corporations have occasion to oppose each other on behalf of their respective clients.

95-10 One of two attorneys in a dispute resolution and legal services clinic may properly perform case evaluations for matters which will be mediated by the second attorney. Paralegals employed by the clinic may gather information and prepare such documents as pleadings and affidavits, provided they are subjected to attorney supervision. The clinic should exercise caution in determining whether it is appropriate, in any given case, to draft settlement agreements for the parties, even where the parties have independently arrived at such an agreement. The appropriate course of practice is to recommend that each of the parties secure their own independent legal review of the agreement prior to executing it.

95-09 An attorney who, either directly or indirectly, performs legal services on behalf of a bank/lender in the closing of a residential real estate transaction, does so at his/her peril when the borrower is not represented by counsel. The attorney must exercise caution to avoid any suggestion that he/she acts on behalf of the borrower. The need to exercise caution is particularly strong with respect to loan packages which provide significant savings to a borrower who chooses to proceed to closing without his/her own attorney

95-03 An attorney may not simultaneously represent a borrower and act as closing agent for a mortgage lending company in the same transaction.

94-02 An attorney may represent alleged violators of zoning ordinances in other municipalities even though he or she counsels and represents a different town in litigation against zoning violators.

94-01 An attorney aids in the unauthorized practice of law and violates Rules of Professional Conduct regarding conflict of interest, fee-splitting and the provision of independent legal advice when said attorney participates in a financial planning company’s arrangement whereby that organization gathers information necessary to prepare estate planning documents, prepared the documents and sends the documents to attorney for review.

93-08 An attorney is not required to withdraw from general representation of a client in a complex litigation matter because the attorney may be called as a witness in a related proceeding. An attorney, who has previously represented all the heirs and the estate of a decedent in a wrongful death action, may not thereafter represent any one of the heirs in a contested action for distribution of the proceeds of the wrongful death action pursuant to 14 V.S.A. §1492, although the attorney may continue to represent the estate.

93-03 An attorney representing a Husband in a divorce action, who also is a landlord to the Husband and the Wife, may continue to represent the Husband in the divorce action so long as he makes full disclosure to the Husband of potential areas where the attorney’s pecuniary interest as landlord might conflict with the Husband’s objectives in the lawsuit and the Husband provides an informed consent.

92-15 A lawyer may not represent a client whose interests are adverse to those of another current client. This applies even if the two representations are unrelated. Multiple representation for matters in litigation is allowed only in limited instances where each client consents after full disclosure and there is a clear showing that either clients’ respective interests will not be adversely affected by the representation of the other client.

92-14 The Code of Professional Responsibility does not expressly bar an attorney from representing a client where the attorney’s partner is a personal friend of two potential adverse witnesses and where the partner previously represented one of the witnesses in an unrelated matter; continued representation depends on the attorney’s ability to provide full loyalty to the client during the representation.

92-12 A law firm is not disqualified from continuing to represent a client in a pending civil case where the law firm hires a secretary who formerly worked for the corporate defendant in the pending case, provided the law firm takes appropriate precautions to prevent the firm’s attorneys and other staff involved in the case from discussing the case with the secretary

92-06 An attorney, who is a member of a municipal utility commission, but who does not act as counsel to the commission, may represent a state agency which is involved with the regulatory process affecting the utility regulated by the commission, in a matter, despite his membership on a commission which the agency oversees, after full disclosure to and with the consent of both organizations, to conducting the interview.

92-05 A Deputy State’s Attorney should not prosecute a case in which he or she will be called as a witness. However, the other attorneys in that prosecutor’s office are not necessarily required to recuse themselves from that case.

91-16 law firm retained by insurer to defend insured in personal injury case may not, following its withdrawal as counsel for insured on grounds of insured’s failure to cooperate in defending, and after entry of default judgment against insured, properly represent insurer in subsequent action brought by Plaintiff seeking judgment against insurer.

91-12 A lawyer who serves as an officer and director of a consulting company may not provide legal services to clients of the consulting company without the clients becoming the lawyer’s clients. The lawyer may not avoid liability for services to clients by practicing as a representative of a corporation.

91-08 An attorney is entitled to represent a private client seeking financing through a lending agency in which the attorney sits on the Board of Directors provided that: (1) the attorney does not participate in any part of the process which determines the client’s eligibility for the loan (e.g., the loan review process, voting on approval of the loan, etc.); and, (2) the attorney, at the outset, fully discloses to the private client and to the bank his representation of the client and, after full disclosure to the client of potential conflicts that could arise, both parties consent to his representation.

91-04 An attorney may report to police authorities information regarding the commission of a crime against his client even though the likely perpetrator of the crime is a complaining witness against the client in a civil proceeding.

91-01 A firm may employ as an associate an attorney whose spouse is employed by a state agency which regulates the business conduct of a client of the firm which employs the associate.

90-08 An attorney may not provide simultaneous representation to a borrower and a lender. An attorney may furnish the lender with title insurance and a proposed mortgage deed or comply with other similar loan requirements on the buyer’s behalf so long as the attorney does not enter into an attorney-client relationship with the lender.

90-07 A lawyer who represents simultaneously Client A and Client B in separate and unrelated matters should discontinue multiple employment under DR 5-105 (b) when the lawyer likely would cross-examine Client A, expected to be a principal witness for Client B’s ex-spouse in a divorce modification proceeding brought by the lawyer on behalf of client B.

90-06 In the course of representing an adoption agency and with the agency-client’s consent, an attorney may assist both the relinquishing parents and the adopting parents with counseling and by preparing routine legal documents, provided that she first fully discloses areas of potential conflict between the agency-client and either or both sets of parents and that she receives no additional fee for the service from either or both sets of parents.

90-05 A lawyer may go into business with a client, provided their interests in the business do not differ and the client does not expect the lawyer to exercise his professional judgment in the business for the protection of the client.

90-01 The Attorney General may represent a state agency in defending a claim of discrimination under the Vermont Fair Employment Practices Act without violating DR 5-105 (A), where the complaint is pending for investigation and enforcement before the Vermont Human Rights Commission.

89-15 A lawyer may represent a new client in a regulatory proceeding in which a former client is a competing, adversary party, provided there is no substantial relationship between the subject matter of the former representation and the subject matter of the current representation, and provided the lawyer learned no confidences or secrets of the former client which could be used to the disadvantage of the former client or to the advantage of the new client in the current proceeding.

88-12 A firm may represent a client in a dispute against former clients where the dispute is not substantially related to any matters as to which the firm represented the former clients and where the firm learned no secrets or confidences of the former clients that could be used to the disadvantage of the former clients or to the advantage of the current client.

88-07 A defense attorney may continue to represent a client when a former client may testify as an adverse witness and the attorney does not share secrets or confidences or have a potential pecuniary interest in future relations with the former client, provided both clients make informed consents to the representation.

88-02 An attorney must withdraw from representation when a former client with whom an attorney shares confidences and secrets is a trial witness for the opposition, unless the former client makes an informed consent to allow the attorney’s use of the confidences and secrets and, if it is “obvious” that the attorney can protect both clients’ interests, the former and present clients each make informed consents to allow the attorney’s continued employment not-withstanding any conflict of interest.

87-20 An attorney may represent the debtors in a bankruptcy proceeding where the creditors include a good friend of another attorney in the same practice who also happens to be the husband of a cousin of the same attorney.

87-19 The rule permitting multiple simultaneous representation only when it is obvious that an attorney can adequately represent the interests of more than one client does not permit an agency of state government to avoid resulting conflicts arising from simultaneous representation by having the Agency subordinate its interests to those of individual clients; other issues are also addressed.

87-18 An attorney is disqualified from representing a mortgagee in a foreclosure action when he represented the mortgagor in the subject property’s purchase. This disqualification extends to the attorney’s law firm and may not be waived by the clients’ consent.

87-16 A state’s attorney may not insist as part of a plea agreement that a defendant enter a plea of guilty rather than nolo contendere when the sole motive of the prosecutor is to attain an advantage for the victim in subsequent civil litigation.

87-14 After withdrawing from the joint representation of a husband and wife in a probate court proceeding due to a potential conflict between the interest of the clients, an attorney may not thereafter undertake the representation of the wife only in a related probate guardianship proceeding where the husband and wife’s interests may be in conflict and where information gained during the earlier joint representation may be relevant to the guardianship proceeding.

87-10 DR 5-105 prohibits a law firm from representing two clients in litigation in which one client is a party and the other client’s employees will testify, and the potential exists that their testimony will provide the basis for future litigation between the clients.

87-07 A law firm is not barred from continuing to represent a client in a matter in which an attorney newly hired by the firm had substantial responsibility while employed in the public sector, provided that the firm effectively insulates the attorney from any involvement in or knowledge of the firm’s handling of the matter and the procedures used to insulate the attorney are approved by the public agency which formerly employed the attorney

87-06 Attorney-witnesses who are involved in a civil action as a party and not as advocates may retain an associate from their own law firm to represent them

87-04 A lawyer may not accept private employment as lobbyist in a matter in which s/he had substantial responsibility as a member of the state government and should not accept such employment when it will tend to discredit the public’s confidence in and respect for the legal profession and government.

87-03 Because the attorney “represents” both the title insurance company and the prospective purchaser of insurance, the rules relating to representation of multiple clients determine when and if such representation is permissible.

87-02 As a result of the deletion of Disciplinary Rule 2-103(D)(4)(a) from the Code of Professional Responsibility, a lawyer may participate in a for-profit prepaid legal service plan under the Code of Professional Responsibility, provided the plan complies with the guidelines set forth in this Opinion. The lawyer must exercise independent professional judgment on behalf of the client, maintain all client confidences, avoid conflicts of interest, and practice competently. The lawyer also must insure that the plan does not involve improper advertising solicitation or fee sharing.

87-07 A variety of irreconcilable conflicts arise where an attorney for a state agency represents the agency and individual recipients of Agency services in simultaneous or successive representation.

86-06 There is no ethical reason why a City Grand Juror cannot prosecute criminal cases against defendants represented by a Defense Attorney who also holds the office of City Alderman.

86-02 A restriction on private employment following government service applies to those matters in which the lawyer had actual significant involvement as a public employee.

86-01 An attorney may represent a prospective corporate client before a State agency which previously employed the attorney in matters substantially unrelated to the State employment

85-08 A law firm cannot continue to represent a defendant in a civil action after hiring a law student-clerk who has already performed extensive work on the same case while employed by the law firm representing the plaintiff.

85-06 An attorney may represent a corporate client in administrative litigation where s/he has formerly represented another corporate client in a commercial transaction, learned no confidences or secrets of the client during the transaction, and there is no substantial relationship between the work undertaken for the former client and the present administrative litigation.

85-02 Where a partner in a law firm represents the husband in a divorce action a former associate of the firm who worked for the firm during the time the firm represented the husband may represent the wife in the same litigation provided the former associate gained no knowledge of the divorce action while employed by the firm and had no involvement in the firm’s representation of the husband.

84-08 Under the facts presented, an attorney is not required to withdraw from a boundary dispute even though he represented the opposing party, when a property in question was purchased, where the prior representation specifically excluded investigation of “area boundaries and such matters as would be disclosed by a survey and/or a personal inspection of the premises” and the attorney gained no secrets or confidences during the former representation relating to the subject matter of the boundary dispute.

84-05 Where a law firm is contacted but not retained by a prospective client who calls to inquire about the possibility of bringing suit against another, the law firm may later represent the other person in defense of the suit provided that the firm did not undertake to give the prospective client advice and provided that the prospective client did not in good faith disclose to the firm any confidential information.

84-02 May a lawyer, consistent with the provisions of the Code of Professional Responsibility, represent a client in connection with a real estate transfer in connection with which the lawyer’s spouse who is a licensed Vermont real estate broker or salesman, has acted in the capacity of a broker?

84-01 Where a law firm represents an association comprised of police officers employed by a municipality in the association’s contract negotiations with the municipality, it is a conflict of interest for the firm to represent on a retained or assigned basis criminal defendants in cases involving the municipal police department or in cases where a police association member is a witness for the state.

83-06 A lawyer may provide the defense of a criminal case even though in doing so he will attempt to impeach the testimony of a person the lawyer formerly represented in a juvenile case because the past juvenile case and the current criminal case are not substantially related. The lawyer may not, however, disclose or use confidential information obtained from the witness while a client.

83-05 A lawyer who was a selectman may not accept private employment to attack the va1idity of an ordinance adopted while the lawyer was a selectman, but can accept private employment on a case involving the correct interpretation of the ordinance.

83-04 Where the husband of one marriage is living with the wife of another, a lawyer may represent both of the spouses of these persons in separate divorce actions. Even if there were an impermissible conflict of interest, the consent of the clients to the dual representation would allow it as long as actual conflicts do not arise.

82-08 The public defender program may enter into a contract with the spouse of the Defender General for appellate representation in conflict cases. Such representation does not create a per se conflict of interest.

82-05 Members of the law firm of a lawyer-legislator may not represent private clients before the legislature or a legislative committee.

82-03 Partners of a firm in which an associate is City Grand Juror and whose functions as such include prosecution of misdemeanors and traffic violations within municipal limits, may not represent clients in actions against members of the same municipality’s Police Department.

82-02 When a lawyer merges with another law firm, the resulting new firm may not continue to represent clients with differing interests who were formerly represented by the old firm and the individual lawyer.

82-01 A person who first was law clerk and subsequently a lawyer for a state agency and in such capacities negotiated a compliance order between the state and a private corporation may not represent civil litigants in an action against that same corporation arising either under the compliance order of from the same facts which gave rise to the compliance order.

81-11 An attorney who is Director and Secretary of a corporate group and handled legal matters for the corporations and the now-deceased majority shareholder may not serve as executor and co-trustee of the estate of the majority if he retains the corporate offices and represents the corporate group and there is a dispute between the estate and the corporations on matters substantially related to his former representation of the corporation. Depending on whether disputes arise between the estate and the corporations and the nature of any such disputes, the attorney may serve as executor and co-trustee and retain some role in the corporations.

81-10 Unless personally biased against the defendant, an assistant attorney general is not ethically barred from assisting in the prosecution of a case where, as judge at an earlier time, he presided over an inquest at which the defendant did not testify.

81-09 An attorney may carry on the practice of law while also acting as a real estate broker, as long as he/she observes the restraints on dual professions delineated in DR 2-102(E).

81-08 The representation of opposing state agencies by Assistant Attorneys General in the resolution of disputes, whether by negotiation or by litigation before administrative tribunals or courts, violates DR 5-105(A) unless such representation is authorized under DR 5-105(C).

81-07 A firm which is engaged as Town Attorney is ethically barred from representing other clients in matters against the Town including criminal cases involving the Town Police Department and matters that might come before the Board of Selectman, Zoning Board of Adjustment, Planning Commission.

81-06 An attorney who is an elected official of a town (Justice of the Peace, and by virtue thereof, a member of the Board of Civil Authority) may represent clients in an action against that town seeking, inter alia, damages for wrongful taking, trespass, removal of trees, correcting drainage and punitive damages.

81-04 A law firm, one of whose partners once belonged to another law firm that once represented a client, may at a later date, with regard to the same subject matter, represent a different client with opposing interest to the original client, so long as the lawyer who has moved from one firm to the other, had no information, knowledge or other contact with the client whose interests will be opposed by the new law firm.

81-03 An attorney may represent a client and the client’s insurance company in a counterclaim against the client. Careful attention should be paid, however, to DR 5-106 and EC 5-14, EC 5-15 and EC 5-16.

81-02 Attorney who formerly represented three partners in partnership-related matters is not disqualified from representing two remaining partners in dissolution negotiations with withdrawing partner, under facts presented.

80-21 Vermont attorney who has in recent months represented the husband and wife in various business and personal matters should decline to represent husband in divorce action against wife.

80-20 An attorney who serves as a part-time probate judge may not properly buy an asset from an estate planning before the judge’s probate court either directly or anonymously through an agent.

80-15 Two attorneys occupying adjacent offices and sharing library, conference room, and office equipment, and who are not and do not hold themselves out to be partners or associates, are not subject to the same conflict of interest restrictions as attorneys so affiliated and may properly represent opposite sides of real estate transactions and other causes. On the facts stated, it is not improper for one of the two attorneys to sublet from the other.

80-14 Attorney who has represented wife in divorce proceedings against first and second husbands may not properly thereafter represent first husband in criminal prosecution alleging criminal conduct of second husband.

80-08 An attorney should decline employment, even in context of appellate representation, from a former adversary in a case versus his former client arising out of the same transaction.

80-05 Counsel for Vermont Housing Finance Agency may have direct contact with prospective mortgagors who themselves are represented by counsel assuming that Agency counsel has been given written authority to do so by counsel for such mortgagors.

80-03 Subject to the provisions of Canon 5 of the Code of Professional Responsibility, it is ethically proper for an attorney who has certified marketability of title to a client to later represent the client in an action arising from a boundary dispute as to the subject property.

79-29 In order to avoid any possible conflict of interest, the Attorney General’s Office should not represent any Judges of the State Court bench or Justices of the Supreme Court bench, but rather such Judges should be represented, when required by statute, by other legal counsel as provided for in 3 V.S.A. 1102(e).

79-28 A law firm cannot represent a wife in a contested divorce and continue such representation after it employed a paralegal who had worked 50 hours on this case in a law office representing the husband.

79-27 An attorney should not represent both the employer or its insurance carrier and the employee or his representative, given potential for impairment of independent judgment of attorney in context of settlement negotiations.

79-26 The law firm, having once represented a client, cannot at a later date, with regard to the same subject matter, represent a different client who has opposing interests to the original client.

79-23 A bank cannot require that an attorney represent the borrower and the mortgagee (the Bank) in the real estate transaction.

79-22 Two or more attorneys sharing law offices who are not, nor hold themselves out to be, partners or associates are subject to the same conflict of interest restrictions as attorneys so affiliated.

79-20 A Vermont practicing attorney who is married to a Vermont trial judge is not barred from practicing before a district court bench in general and a practicing attorney’s associates in the attorney general’s office are not precluded from practicing before the practicing attorney’s spouse.

79-16 Subject to certain disclosure requirements, it is not improper for a lawyer to serve as an agent for the sale of title insurance.

79-12 An elected State’s Attorney may not serve on the Vermont Public Service Board.

79-09 The simple fact of membership by a law firm, as an associate member in an organization entitled “The Associated General Contractors of Vermont,” or by representation, by such law firm, of other members of such organization does not violate the Code of Professional Responsibility.

79-07 Spouse of trial judge may represent a party in a case where the trial judge has previously signed a temporary order or otherwise been involved in the case.

79-06 An attorney should not represent a client in litigation involving a legal document prepared by the attorney where an adverse party was neither represented by independent counsel at the time of preparation of the document, nor clearly advised by the attorney to obtain such representation.

79-05 No conflict arises simply from the existence of two contracts, serving as special legal counsel to simultaneous “consulting agreement” with Control Electronic Corporation, to require automatic withdrawal from one contract or the other.

78-04 General representation of both purchaser and seller in a normal “arms-length” real estate transaction is a violation of the Code even though both parties consent.

78-03 A lawyer who has represented both husband and wife in a number of matters may not thereafter represent the wife against the husband in a divorce where issues in the divorce are substantially related to the former representation.

78-02 A firm in not disqualified from handling a case because a paralegal employed in the firm formerly was enrolled in a paralegal training clinic which provided representation to an opposing party in litigation handled by the firm even though the paralegal had some involvement in that representation as long as the paralegal has no present involvement in the case and conveys no confidential information to firm attorneys.

77-21 A lawyer may represent both a police officer’s association and criminal defendants in cases investigated by an office who is a member of the association if independent professional judgment on behalf of both is not adversely affected.

77-19 There is no per se rule that prevents a Public Defender from serving on the Board of Organizations which offer rehabilitative services to persons who may be involved with the correction system. Instead, the lawyer must personally evaluate whether such membership may affect client representation.

77-17 An Assistant Attorney General who formerly clerked in the Appeal Division of the Public Defender Program may participate in cases which were in the Public Defender program while he was employed there but in which he had no involvement.

77-15 An attorney who represents a woman charged with the murder of her husband may not serve as administratrix of the husband’s estate.

77-12 A private attorney hired as a Special City Grand Juror to prosecute an individual case may represent criminal defendants in other unrelated cases.

77-10 A Vermont Legal Aid, Inc. plan to avoid conflict of interest problems caused by closed, but still existing, domestic relations files is approved as complying with the Code of Professional Responsibility. The plan included destruction of all domestic relations files closed over three years where the lawyers and paralegals who worked on the case are no longer employed by Vermont Legal Aid, Inc.

77-09 Performing editorial services by lawyer for historical society when editor of society publications is an assistant judge

77-06 The Code of Professional Responsibility contains no per se conflict rules governing husband/wife lawyers practicing in the same area. Thus, except in extreme cases where obvious personal and financial interests affect independent judgment, the existence of improper conflicts must be determined on a case by case basis. The same is true where one spouse is a part-time prosecutor.

76-18 The Public Defender System must be treated as a “firm” for purposes of conflict of interest provisions of the Code. Thus, two or more Public Defenders may not represent clients with differing interests and the Correctional Defender may not provide representation to challenge the representation given by a Public Defender.

76-12 A lawyer who is also a legislator, and members of his firm, may represent clients before state boards and against the state provided the specific prohibitions of DR 5-101(A), 8-101(A) and 9-101(B) are not violated.

76-08 An attorney who sits on a municipal police commission may not handle civil or criminal matters where police department employees are opposing parties or witnesses.

APPEARANCE OF IMPROPRIETY

98-09 An Assistant Attorney General who formerly worked for an organization that represented class members in a class action against the State and who represented some class members personally on matters not directly affected by the class action should not represent the State or participate on behalf of the State in the pending class action or in future class actions involving the same class members or the same core legal issues.

98-12 A lawyer who represented husband in a divorce action many years before is not necessarily disqualified from representing husband’s new wife in a divorce action against husband.

97-14 Lawyer A must withdraw from any further participation as a member of a municipal zoning board in all proceedings related to a particular conditional use application, where Lawyer B, a member of Lawyer A’s firm, represents clients who have challenged the zoning board’s jurisdiction to reconsider an earlier decision that had been favorable to the interests of Lawyer B’s clients. Similarly, Lawyer B has a non-waivable duty to withdraw from further representing clients in a matter on which Lawyer A had participated in a quasi-judicial capacity.

97-03 If a lawyer, while with one firm, acquires no knowledge or information relating to the representation of a particular client of the firm, and that lawyer later joins another firm, the second firm may represent another client in the same or a related matter even though the interests of the two clients conflict.

85-05 A law firm cannot continue to represent a defendant in a civil action after hiring a law student-clerk who has already performed extensive work on the same case while employed by the law firm representing the plaintiff.

84-06 A lawyer may not keep a discovery sanction award when the lawyer’s right to the money is disputed by the client. The money must be placed in the client trust fund and can be distributed only when the dispute is resolved.

80-20 An attorney who serves as a part-time probate judge may not properly buy an asset from an estate planning before the judge’s probate court either directly or anonymously through an agent.

79-23 A bank cannot require that an attorney represent the borrower and the mortgagee (the Bank) in the real estate transaction.

76-08 An attorney who sits on a municipal police commission may not handle civil or criminal matters where police department employees are opposing parties or witnesses.

ATTORNEY GENERAL

DUAL PROFESSIONS

81-09 An attorney may carry on the practice of law while also acting as a real estate broker, as long as he/she observes the restraints on dual professions delineated in DR 2-102(E).

79-16 Subject to certain disclosure requirements, it is not improper for a lawyer to serve as an agent for the sale of title insurance.

INDEPENDENT PROFESSIONAL JUDGMENT

97-08 A lawyer must exercise discretion in determining the necessary length of time for the subsequent retention or disposition of a client’s file. The contents of certain files may indicate the need for a longer retention period than do the contents of files of similar age based on their relevance and materiality to situations which may foreseeably arise. Moreover, in disposing of a client’s files, a lawyer should protect the confidentiality of its contents. If possible, notice may be given the client as to the date of disposition, affording the client the opportunity to take possession of all or part of the material in the file.

92-05 A lawyer may not represent a client whose interests are adverse to those of another current client. This applies even if the two representations are unrelated. Multiple representation for matters in litigation is allowed only in limited instances where each client consents after full disclosure and there is a clear showing that either clients’ respective interests will not be adversely affected by the representation of the other client.

92-02 The lawyer who performs statutory duties as an assistant judge: (1) should not practice law in the court, hearing rooms and chambers where the lawyer sits as judge; (2) should not practice law in a court where the non-judicial duties and responsibilities make that lawyer a functioning member of the court and affects that lawyer’s independent judgment and/or creates an appearance of impropriety. In addition, when that lawyer is disqualified from providing representation to a particular client or in a particular court, all lawyers affiliated with that lawyer are disqualified to the same extent.

92-01 An attorney who is an officer in the trust department of a bank may not represent customers or potential customers of the bank by which he or she is employed in the preparation of wills, trust agreements and other legal instruments pertaining to trusts, estates and related trust department business, whether or not the client pays for these services to the bank or to the individual officer/lawyer, and whether or not the bank is named as a fiduciary.

88-08 An attorney should decline employment, even in context of appellate representation, from a former adversary in a case versus his former client arising out of the same transaction.

77-15 An attorney who represents a woman charged with the murder of her husband may not serve as administratrix of the husband’s estate.

JUDGES

80-20 An attorney who serves as a part-time probate judge may not properly buy an asset from an estate planning before the judge’s probate court either directly or anonymously through an agent.

79-07 Spouse of trial judge may represent a party in a case where the trial judge has previously signed a temporary order or otherwise been involved in the case.

77-09 Performing editorial services by lawyer for historical society when editor of society publications is an assistant judge

MULTIPLE CLIENTS

PUBLIC DEFENDER

PUBLIC OFFICE

97-14Lawyer A must withdraw from any further participation as a member of a municipal zoning board in all proceedings related to a particular conditional use application, where Lawyer B, a member of Lawyer A’s firm, represents clients who have challenged the zoning board’s jurisdiction to reconsider an earlier decision that had been favorable to the interests of Lawyer B’s clients. Similarly, Lawyer B has a non-waivable duty to withdraw from further representing clients in a matter on which Lawyer A had participated in a quasi-judicial capacity.

88-09 It is improper for a member of a law firm to act as a part-time prosecutor in one county, while this attorney and other members of the same law firm are conducting criminal defense work in other counties.

87-16 A state’s attorney may not insist as part of a plea agreement that a defendant enter a plea of guilty rather than nolo contendere when the sole motive of the prosecutor is to attain an advantage for the victim in subsequent civil litigation

86-06 There is no ethical reason why a City Grand Juror cannot prosecute criminal cases against defendants represented by a Defense Attorney who also holds the office of City Alderman.

86-02 A restriction on private employment following government service applies to those matters in which the lawyer had actual significant involvement as a public employee.

82-05 Members of the law firm of a lawyer-legislator may not represent private clients before the legislature or a legislative committee.

79-12 An elected State’s Attorney may not serve on the Vermont Public Service Board.

REAL ESTATE TRANSACTIONS

87-03 Because the attorney “represents” both the title insurance company and the prospective purchaser of insurance the rules relating to representation of multiple clients determine when and if such representation is permissible.

81-09 An attorney may carry on the practice of law while also acting as a real estate broker, as long as he/she observes the restraints on dual professions delineated in DR 2-102(E).

79-23 A bank cannot require that an attorney represent the borrower and the mortgagee (the Bank) in the real estate transaction.

79-16 Subject to certain disclosure requirements, it is not improper for a lawyer to serve as an agent for the sale of title insurance.

78-04 General representation of both purchaser and seller in a normal “arms-length” real estate transaction is a violation of the Code even though both parties consent.

SPOUSES

98-06 A lawyer who has represented both husband and wife in a number of matters may not thereafter represent the husband against the wife in a divorce where issues in the divorce representation will require the lawyer to do anything which would injuriously affect the former client in any matter.

91-01 A firm may employ as an associate an attorney whose spouse is employed by a state agency which regulates the business conduct of a client of the firm which employs the associate.

80-21 Vermont attorney who has in recent months represented the husband and wife in various business and personal matters should decline to represent husband in divorce action against wife.

79-07 Spouse of trial judge may represent a party in a case where the trial judge has previously signed a temporary order or otherwise been involved in the case.

77-15 An attorney who represents a woman charged with the murder of her husband may not serve as administratrix of the husband’s estate.

STATE GOVERNMENT

89-05 A lawyer may accept private employment as attorney in a matter in which the attorney did not have substantial responsibility as a member of State government and when the work as government employee was in reviewing and interpreting government or agency procedure, regulations or abstract principles. The Attorney General may represent a state agency in defending a claim of discrimination under the Vermont Fair Employment Practices Act without violating DR 5-105 (A), where the complaint is pending for investigation and enforcement before the Vermont Human Rights Commission.

86-07 A variety of irreconcilable conflicts arise where an attorney for a state agency represents the agency and individual recipients of Agency services in simultaneous or successive representation.

86-02 A restriction on private, employment following government service applies to those matters in which the lawyer had actual significant involvement as a public employee.

WITHDRAWAL FROM REPRESENTATION

97-09 Law Firm A may employ a paralegal who formerly was employed by Law Firm B, despite the fact that the two firms are engaged in litigation against each other in a matter in which the paralegal participated for Law Firm B. However, Law Firm A must now screen the paralegal from involvement in the pending litigation and any matter in which the interests of Law Firm B’s client is adverse to any client of Law Firm A. Further, Law Firm A must ensure that no information relating to the representation of the client of Law Firm B is revealed by the paralegal to any person in Law Firm A.

93-08 An attorney is not required to withdraw from general representation of a client in a complex litigation matter because the attorney may be called as a witness in a related proceeding. An attorney, who has previously represented all the heirs and the estate of a decedent in a wrongful death action, may not thereafter represent anyone of the heirs in a contested action for distribution of the proceeds of the wrongful death action pursuant to 14 V.S.A. §1492, although the attorney may continue to represent the estate.

90-07 A lawyer who represents simultaneously Client A and Client B in separate and unrelated matters should discontinue multiple employment under DR 5-105(b) when the lawyer likely would cross-examine Client A, expected to be a principal witness for Client B’s ex-spouse in a divorce modification proceeding brought by the lawyer on behalf of Client B.

88-02 An attorney must withdraw from representation when a former client with whom an attorney shares confidences and secrets is a trial witness for the opposition, unless the former client makes an informed consent to allow the attorney’s use of the confidences and secrets and, if it is “obvious” that the attorney can protect both clients’ interests, the former and present clients each make informed consents to allow the attorney’s continued employment notwithstanding any conflict of interest.