Can a Vermont trial lawyer continue when another current client is called as an adverse witness whose confidential information matters to cross-examination?

Plain-English summary

During a probate hearing about guardianship and parental rights, one side proposed calling a witness against the mother. The mother's firm also represented that witness in unrelated matters and held confidential information relevant to attacking the witness's credibility. The witness had not been expected to testify when the firm undertook the mother's representation.

Applying the Vermont conflict and confidentiality rules as they stood in 2008, the committee said the firm could not use its current client's confidences against that client while also providing the mother competent cross-examination. If the witness testified, the firm had to withdraw from representing the mother.

The committee declined to decide whether the court should exclude the witness, grant a new trial, or impose another procedural remedy. It said those are legal questions outside its advisory authority. It also found the proposed use of separate cross-examination counsel problematic because trial advocacy would still require the mother's lawyer to address the witness's testimony.

In practice

For the hearing described, the opinion's ethics conclusion depends on the witness remaining a current client and the firm possessing confidential information material to the adverse examination. Its conclusion did not resolve the court's management of the mid-hearing conflict.

Common questions

Q: Does an unrelated representation of the adverse witness avoid the conflict?

A: No. The opinion involved an unrelated matter but found the current client relationship and confidential information made continued trial representation impermissible.

Q: Could separate counsel simply cross-examine the witness?

A: The committee described that proposal as problematic because the mother's counsel would still need to address the witness's testimony in closing argument.

Q: Did the committee decide whether the witness should be excluded?

A: No. It left exclusion and other trial remedies to the court.

Background and rules framework

The opinion applies the 2008 version of Vermont Rules 1.6 and 1.7 on confidentiality and concurrent conflicts, Rule 1.10's firm imputation, and Rule 1.16(a) on withdrawal. It expressly separated its ethics answer from the court's procedural decisions.

Citations and references

Vermont Rules of Professional Conduct:

• Rules 1.6, 1.7, 1.10, and 1.16(a)

Other opinions cited:

• Vermont Opinions 98-13, 90-17, 90-07, and 87-10, current client as witness

See also

• Vermont Ethics Op. 10-02: Municipal client and police witnesses

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 08-04