May a Vermont firm hire a lawyer whose former client is the firm's opponent in unrelated litigation?

Short answer The opinion says the unrelated regulatory work does not create a Rule 1.9 conflict if the matters truly are unrelated. The incoming lawyer remains barred from revealing or using the former client's information to its disadvantage; screening is described as an optional way to avoid that risk.
Bar
VTBAR
Issued
2006

Apply this to your situation

This page answers the general question as of 2006. 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 2006
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 Not binding precedent.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

A firm in pending litigation considered hiring an associate who had represented the opposing party in regulatory matters at a different firm. The requesting firm said the prior matters were unrelated to its litigation and unlikely to supply issues relevant to it.

The committee applied Vermont Rules 1.9 and 1.10 as they stood in 2006. On the stated assumption that the matters were not the same or substantially related, it found no conflict under the former-client representation provisions. Rule 1.9(c) nonetheless barred the associate from revealing prior representation information or using it to the former client's disadvantage.

The committee said screening the associate from the litigation was one way to avoid use or disclosure of that information. It expressly described screening as not required by the rules on those facts.

In practice

For the hiring proposal described, the opinion's permission rests on the earlier regulatory matter being unrelated to the current litigation. The continuing information duty applies even when the matters are different.

Common questions

Q: Does the former client's status as the firm's opponent automatically bar the hire?

A: No. The opinion found no Rule 1.9 conflict on the assumed facts that the prior regulatory matters and current lawsuit were unrelated.

Q: Must the incoming lawyer be screened?

A: The opinion says screening was not required on these facts, but identified it as a way to avoid use or disclosure of protected former-client information.

Q: Can information from the unrelated former matter be shared with the new firm?

A: The opinion says Rule 1.9(c) bars use to the former client's disadvantage and disclosure of protected information.

Background and rules framework

The opinion applies the 2006 versions of Vermont Rule 1.9's former-client restrictions and Rule 1.10's firm imputation rule.

Citations and references

Vermont Rules of Professional Conduct:

  • Rules 1.9 and 1.10

Other opinions cited:

  • Vermont Opinion No. 2005-2, a screening protocol for an adverse spouse's cases

See also

Source

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