When a Vermont deputy state's attorney joins from a criminal-defense firm, is the whole prosecutor's office disqualified from cases involving the former firm's clients?
Apply this to your situation
This page answers the general question as of 2007. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A state's attorney hired a deputy who had worked for a criminal-defense firm. The prosecutor's office had pending cases against people represented by that former firm, and the state's attorney asked whether the entire office had to withdraw and whether separating the deputy from those cases would suffice.
Under Rules 1.7 and 1.9 as applied in 2007, the opinion says the deputy could not prosecute a former client. It also bars the deputy from prosecuting a client of the former firm when the deputy learned information about that client while working there. Rules 1.6 and 1.9(c) independently prohibit using former-client information to the client's disadvantage or disclosing it without the former client's authorization, apart from exceptions not involved in the inquiry.
Rule 1.11(c) supplies the matter-specific restriction for the move into government. The deputy may not participate in a matter handled personally and substantially while in private practice. The opinion applies that restriction to ongoing prosecutions of former-firm clients when the deputy had personally and substantially participated in their defense.
The committee does not extend the deputy's disqualification to the other prosecutors. It reads Rule 1.10's private-firm imputation rule as inapplicable to a government law office and relies on Rule 1.11's separate protections for movement between private practice and government service.
In practice
Under this opinion, the new deputy's former-client confidentiality and matter-specific disqualification remain personal to the deputy. The prosecutor's office may continue cases involving the former firm's clients, while the deputy may not disclose protected information or participate in covered matters.
The opinion's conclusions reflect the Vermont rules applied in 2007. It distinguishes information-based restrictions under Rules 1.6 and 1.9 from the personal-and-substantial-participation test under Rule 1.11 and from the private-firm imputation rule in Rule 1.10.
Common questions
Q: Is the entire state's attorney's office disqualified because the new deputy came from a defense firm?
A: No. The opinion concludes that the deputy's disqualification does not extend to the other prosecutors because Rule 1.10's imputation rule does not apply to the government office.
Q: May the deputy prosecute a former client?
A: No. The opinion applies Rules 1.7 and 1.9 to bar the deputy from prosecuting a former client.
Q: What if the defendant was a client of the former firm but not personally the deputy's client?
A: The opinion bars the deputy from the prosecution if the deputy obtained information about that client while working at the former firm. It separately bars participation where the deputy worked personally and substantially on the matter in private practice.
Q: May the deputy share information learned at the former firm with the prosecutor's office?
A: No. The opinion says Rules 1.6 and 1.9(c) prohibit using former-client information to the client's disadvantage or disclosing it without the former client's authorization, subject to exceptions not presented there.
Background and rules framework
The inquiry arose after a Vermont state's attorney hired a deputy from a firm engaged in criminal-defense work. The office was prosecuting defendants represented by that firm and asked how the change affected the deputy and the office.
The opinion uses Rules 1.7 and 1.9 for former-client conflicts, Rules 1.6 and 1.9(c) for confidential information, Rule 1.11(c) and (d) for a lawyer entering government service after private practice, and Rule 1.10 for imputation within private firms. Its central distinction is between the deputy's personal restrictions and office-wide disqualification.
Citations and references
Vermont Rules of Professional Conduct:
- Rules 1.6, 1.7, 1.9, 1.9(c), 1.10, 1.11(c), and 1.11(d)
See also
- Arizona Ethics Op. 04-04: Public-Defender Conflicts and Screening
- Virginia LEO 303: Former Prosecutor's Firm Defending Criminal Cases
- ABA Formal Op. 97-409: Successive Government and Private Employment
Source
- Landing page: VBA State Government opinions
- Original PDF: Vermont Advisory Ethics Opinion 07-04
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