Could a Vermont firm keep representing a husband and his companies after drafting documents for his wife and take fee mortgages from the companies?
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This page answers the general question as of 2009. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The firm had long represented a husband and his businesses. Six years earlier, at his request, it had prepared draft estate documents for his wife using only information he supplied; the wife had not responded to the drafts. During their divorce, she asserted that the firm represented her and had a conflict in its continued work for the husband and his companies.
The committee found no ongoing lawyer-client relationship with the wife on those facts. Even assuming a former relationship existed, the current company and husband matters were unrelated to the draft estate documents, and the firm had received no confidential information from her. It therefore found no Rule 1.9 conflict in the unrelated work.
The companies had also granted the firm mortgages for past and ongoing fees. The committee found Rule 1.8 satisfied: there was a written agreement, the companies had independent counsel, and the required client consent was in writing. It declined to decide whether the mortgages violated an out-of-state divorce order, treating that as substantive law outside its opinion.
In practice
The opinion's conflict conclusion rests on the narrow prior contact with the wife and the lack of a substantial relation between the draft documents and the firm's ongoing work. Its fee-mortgage conclusion rests on the particular written agreement and independent-counsel advice described in the record.
Common questions
Q: Did sending draft estate documents make the wife a continuing client?
A: The committee said no ongoing relationship remained after six years without follow-up or response to the drafts.
Q: Did Rule 1.9 bar the firm's unrelated work for the husband and companies?
A: No. Even assuming the wife had once been a client, the committee found no substantial relation or confidential information from her that could materially aid the current matters.
Q: Did the committee decide whether the mortgages violated the divorce order?
A: No. It limited its conclusion to Rule 1.8 and left the order's legal effect outside the ethics opinion.
Background and rules framework
The committee distinguished Rule 1.7 on current-client conflicts from Rule 1.9(a) on former clients and applied Rule 1.8(a) to the firm's security interests in client property.
Citations and references
Rules of Professional Conduct:
- Vermont Rules of Professional Conduct 1.7, 1.9(a), 1.8(a)
See also
- Vermont Ethics Op. 87-13: Mortgage securing fees
- Vermont Ethics Op. 14-02: Former shareholder and escrow
Source
- Landing page: Vermont Bar Association fee opinions
- Original PDF: Opinion 09-05
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