When must a Vermont lawyer serving on a quasi-judicial board recuse because a firm client may be affected?
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This page answers the general question as of 2003. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer in a firm served on a quasi-judicial board that decided administrative appeals and made rules. The lawyer already recused from appeals involving current or former firm clients as parties. The request concerned decisions that might indirectly affect firm clients who were not parties.
The committee said Rules 1.7 and 1.10 could be applied to positional conflicts, although neither expressly governs them. It limited its answer to indirect effects on clients. The lawyer first had to consider the board's recusal rules. Under the spirit of Rule 1.7, recusal was required if a nonparty client's or the firm's interest became an outside consideration materially influencing the lawyer for or against a party. The opinion asks whether the decision affects a limited number of nonparties, includes firm clients among them, and may influence the board member's judgment.
The firm's practice area did not change that analysis. A broad impact on an industry was less likely to be an improper outside consideration. The committee generally allowed the lawyer to participate in rulemaking, except where a particular rule would substantially affect firm clients or the firm's practice.
In practice
For the board service described, the opinion made the particular impact on firm clients and the board member's judgment decisive. It did not call for recusal merely because a general board rule may affect an industry in which firm clients operate.
Common questions
Q: Does every effect on a firm client require a board member's recusal?
A: No. The committee distinguished a general industry effect from an effect that materially influences the lawyer-board member's judgment as an outside consideration.
Q: Does it matter whether the firm practices in the area before the board?
A: The opinion says that is irrelevant to the second inquiry; the possible impact on clients or the firm and its effect on the board member control the analysis.
Q: May the lawyer participate in the board's rulemaking?
A: Generally yes, according to the opinion, unless a particular rule would have a substantial impact on firm clients or the firm's practice.
Background and rules framework
The opinion discusses Vermont Rules 1.7(b) and 1.10 by analogy because the lawyer acted as a board decision-maker, not as counsel in the proceeding. It also cites Vermont Professional Responsibility Committee Opinions 2002-03 and 1997-14 as related situations.
Citations and references
Vermont Rules of Professional Conduct:
- Rules 1.7(b) and 1.10
Other opinions cited:
- Vermont Professional Responsibility Committee Opinions 2002-03 and 1997-14
See also
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 03-06
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