May a Vermont lawyer suing a company speak with its former manager and represent that manager separately?
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.
Plain-English summary
The requesting lawyer represented a former employee in a suit against Company X and also agreed to represent a former manager in a separate dispute with the company. The manager had participated in company discussions with its counsel about the first employee's case. The lawyer asked how Vermont's no-contact and conflict rules applied as the manager moved from active management to terminated employment.
The committee said Rule 4.2 did not bar discussion of the manager's own potential claim: company counsel did not represent the manager in that separate dispute. But while the person remained a company manager, the lawyer could not discuss the first employee's case with them. The committee said the Baisley decision might continue to restrict contact about that suit even after management duties ended while employment continued.
After the manager's employment ended, the opinion permitted discussion of nonprivileged facts concerning either case with both clients' consent. It said communications between the manager and company counsel that remained protected under Vermont Evidence Rule 502 could not be discussed. The opinion found no present automatic bar to representing both former employees, but said an adverse witness role for the manager could create a Rule 1.7 conflict and require withdrawal from one or both representations depending on the facts and consent.
In practice
The opinion distinguishes discussion of the manager's own claim from discussion of the other employee's lawsuit while the manager worked for the company. It treats the manager's later possible testimony as a fact-dependent conflict question rather than deciding it in advance.
Common questions
Q: Could the lawyer discuss the manager's own claim while the manager still worked for the company?
A: The opinion says yes, because the company's counsel did not represent the manager in that separate potential action.
Q: Could the lawyer discuss the first employee's case with the manager while they remained employed?
A: The opinion says no on its facts, citing Rule 4.2 and uncertainty from Baisley even after managerial duties ended.
Q: Did termination of employment remove the company's privilege?
A: No. The opinion says privileged communications from the manager's time as a company representative remained protected.
Q: Would the manager's later adverse testimony automatically end both representations?
A: The opinion says no automatic answer was possible before the facts developed. It required a Rule 1.7 assessment and said withdrawal could become necessary.
Background and rules framework
The opinion applies the 2006 versions of Vermont Rules 4.2 and 1.7. It discusses Vermont Evidence Rules 502 and 801(d)(2)(D) when considering the manager's status and the company's privileged communications.
Citations and references
Vermont Rules of Professional Conduct:
- Rules 1.7 and 4.2
Cases:
- Baisley v. Young, 167 Vt. 473 (1998), no-contact rule and employee communications
See also
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 06-05
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