May a firm continue a class action against a former corporate client's successor when only a deceased partner handled unrelated matters for that client?
Apply this to your situation
This page answers the general question as of 2017. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A firm representing plaintiffs in an environmental class action learned that a partner who had died before the suit began once handled five matters for a corporate predecessor of a defendant. Those matters had ended. The opinion describes no other remaining lawyer as having participated in them or accessed the deceased partner's files.
The committee considered Vermont Rules 1.9 and 1.10 on duties to former clients and imputation. It questioned how their wording applied when the lawyer's association ended by death. Even if the rules applied, the committee concluded that the prior matters, separately or together, were not substantially related to the class action. The one environmental zoning matter involved public filings and a different issue from the chemical-discharge claim.
The firm represented that it had not examined and would not use the predecessor's protected files. The committee concluded that the firm could continue without the corporate successor's informed consent on those facts. It noted that the answer might differ if other firm lawyers had worked on the class-action facts for the predecessor or the firm had advised it on those facts.
In practice
The opinion's permission rested on the limited prior representations, lack of a substantial relationship, and the remaining lawyers' lack of protected information from the deceased partner's files. The committee expressly left hypothetical variations and questions about discovery or custody of those files outside its opinion.
Common questions
Q: Did the deceased partner's former client automatically disqualify the firm?
A: No. The committee found no substantial relationship between the five completed matters and the later environmental class action, and allowed continued representation on the stated facts.
Q: Did the corporate merger require consent from the successor defendant?
A: The committee concluded the firm could continue without the successor's informed consent in the circumstances presented, even if Rules 1.9 or 1.10 applied.
Q: What role did access to the former client's files play?
A: The opinion relied on the firm's representation that no remaining lawyer had accessed the files or would use protected information acquired in the deceased partner's matters.
Q: Did the committee decide how to handle discovery or custody of those files?
A: No. It identified discovery and file-custody questions as outside the scope of the opinion.
Background and rules framework
Vermont Rule 1.9 addresses duties to former clients, including substantially related matters and protected information. Rule 1.10 addresses conflicts imputed among lawyers in a firm and restrictions after a lawyer leaves. The opinion applied the substantial-relationship inquiry to the particular matters the deceased partner handled and the information held by remaining lawyers.
Citations and references
Vermont Rules of Professional Conduct:
- Rule 1.9(a), (b), and (c)
- Rule 1.10(a) and (b)
- Rules 1.6 and 1.11
Other opinions cited:
- Vermont Advisory Ethics Opinions 1988-12, 2000-05, 2000-07, 2000-12, and 2001-03
See also
- Vermont Ethics Op. 07-04: New deputy prosecutor and former clients
- NY State Bar Op. 534: Former legal-aid attorney and prior clients
Source
- Landing page: VBA conflict-of-interest opinions
- Original PDF: Vermont Advisory Opinion 17-02
What do the rules say today, for your facts?
This opinion is from 2017. Ezel checks the current Vermont Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace