Could Vermont co-counsel for a couple’s estate plan later represent the husband’s estate against the wife?

Plain-English summary

A Vermont firm reviewed deeds and transfer documents as local co-counsel for a married couple’s estate plan. After the husband died, the firm began representing his estate and personal representative in Vermont ancillary administration. The wife, represented separately, objected to that proceeding and to the firm’s role.

The committee treated both spouses as former clients of the Vermont and out-of-state firms. Under Rule 1.9(a), the estate administration was substantially related to the planning work because administration was a foreseeable part of carrying out the property plan. The limited scope of the Vermont firm’s earlier role and the small amount of information it held did not change that analysis.

The wife had not consented. The committee therefore barred the firm from continuing for the estate and personal representative and said Rule 1.16 required withdrawal if that representation had begun.

Currency note

This opinion was issued in 2000, before the Vermont Supreme Court's 2009 amendments to the Rules of Professional Conduct. The court's rules history says those amendments incorporated changes to the ABA Model Rules adopted in 2001-2003. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Did the Vermont firm’s narrow deed-review role avoid a former-client conflict?

A: No. The committee treated the Vermont firm as co-counsel for both spouses and held that the scope of its earlier work did not change the Rule 1.9(a) result.

Q: Why were the matters substantially related?

A: The opinion described ancillary administration as a foreseeable part of implementing the estate plan.

Q: Could the firm continue if the wife objected?

A: No. The opinion required her consent and, in its absence, withdrawal from the estate representation.

Background and rules framework

The opinion applied Vermont Rule 1.9(a) to a new representation adverse to a former client in a substantially related matter. It cited Rule 1.16 for withdrawal after a conflict arose.

Citations and references

Vermont Rules of Professional Conduct:

• Rules 1.9(a), 1.16

See also

• Vermont Ethics Op. 00-05: Former firm seller

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 00-12
• Rules history: Vermont Rules of Professional Conduct, “The Vermont Rules of Professional Conduct are amended to incorporate comprehensive and significant changes to the American Bar Association's Model Rules of Professional Conduct.”