Ezel / Ethics Opinions / VTBAR

May a Vermont litigation firm hire a lawyer from the opposing firm when the opponent refuses consent?

Short answer The opinion says the receiving firm may not continue the active adverse representation and hire the lawyer without both clients' consent under the rules then in force. Screening the lawyer and consent from only the receiving firm's client did not resolve the conflict.
Bar
VTBAR
Issued
2005
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 2005. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Attorney A worked at Firm X, which represented one side of an active dispute. Attorney A received an offer from Firm Y, which represented the opposing side. Firm Y's client consented, and Firm Y proposed to screen Attorney A from the lawsuit, but Firm X's client refused consent.

The committee applied Vermont Rules 1.7, 1.9(a), and 1.10(a) as they stood in 2005. It concluded that Attorney A's move would put the lawyer at a firm representing a client directly adverse to the former client in the same litigation. The firm's conflict followed from imputation. Without both clients' consent after consultation, the proposed move while Firm Y continued the representation was prohibited.

The opinion identified one alternative: Firm Y could withdraw from the disputed representation if it wanted to hire Attorney A and could not obtain the opposing client's consent. It did not treat the proposed screening arrangement as sufficient to permit both the hire and continued representation.

In practice

For this active dispute under the rules addressed in 2005, the opinion required consent from both clients for the proposed hire and continued representation. Its conclusion rested on the lateral lawyer's involvement with the very litigation in which the new firm represented the opponent.

Common questions

Q: Does screening the incoming lawyer make the proposed hire permissible?

A: The opinion says no on these facts. The former client's refusal to consent prevented Firm Y from both hiring the lawyer and continuing its adverse representation.

Q: Is consent from Firm Y's client enough?

A: No. The opinion required consent from both parties after consultation under the rules it applied.

Q: What alternative did the committee identify?

A: It said Firm Y could withdraw from its representation in the dispute if it still wished to hire the lawyer.

Background and rules framework

The opinion applies the 2005 versions of Vermont Rules 1.7, 1.9(a), and 1.10(a) to an attorney moving between firms on opposite sides of the same pending litigation.

Citations and references

Vermont Rules of Professional Conduct:

  • Rules 1.7, 1.9(a), and 1.10(a)

See also

Source

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