May a Vermont defense lawyer contact non-board condominium members when the association has counsel in the litigation?

Plain-English summary

A condominium association's board sued developers over alleged defects. The board's lawyer represented the association, but acknowledged not representing individual owners. Defense counsel wanted to interview association members who did not sit on the board.

The committee applied Vermont Rule 4.2 and its comment concerning organizational constituents. Non-board members neither directed or consulted with association counsel nor had authority to bind the association or conduct its litigation. The committee therefore found them outside the rule's restriction on contact with represented persons, despite their membership and interest in the suit.

The committee also pointed to Rule 4.3: counsel contacting the members as unrepresented persons had to make the lawyer's adverse role clear and avoid giving legal advice beyond suggesting they obtain counsel.

In practice

For the non-board members described, defendants' counsel could discuss facts relevant to the lawsuit without the association lawyer's knowledge or consent. The opinion tied that result to the members' lack of litigation authority and the lawyer's Rule 4.3 obligations.

Common questions

Q: Does association counsel's representation automatically cover every member?

A: No. The committee said the non-board members on these facts were outside Rule 4.2 because they did not direct, bind, or represent the association in the litigation.

Q: Could defense counsel give legal advice to those members?

A: Rule 4.3 barred legal advice to an unrepresented person other than advice to obtain counsel; the opinion also required clarity about defense counsel's role.

Background and rules framework

The opinion applied Rules 4.2 and 4.3, including Rule 4.2 Comment 7 on organizational constituents. It discussed 12 V.S.A. § 1613 and V.R.E. 502 as analogies while distinguishing attorney-client privilege from the contact rule.

Citations and references

Rules of Professional Conduct:

• Vermont Rules of Professional Conduct 4.2 and 4.3

Statutes:

• 12 V.S.A. § 1613, discussed as a corporate-privilege analogy

See also

• Vermont Ethics Op. 96-07: Former corporate employee
• Vermont Ethics Op. 94-08: Lender-only closing counsel

Source

• Landing page: Vermont Bar Association unrepresented-person opinions
• Original PDF: Opinion 2011-5