How should Vermont's Attorney General's office handle the defense of judges before whom it also has pending cases?

Plain-English summary

The Vermont Attorney General's office sometimes defended superior court judges and Supreme Court justices in litigation while also having other matters pending before those judges. The committee considered how the office could avoid conflicts when the state was required to furnish a defense.

It recommended using 3 V.S.A. §1102(e): the Attorney General would find that the office could not adequately represent the judge and authorize outside counsel at state expense. The committee also described an alternative of informing opposing counsel in the office's other cases about its representation of judges and obtaining waivers or withdrawing where counsel objected. It called the outside-counsel route more logical and less cumbersome.

Currency note

This opinion was issued in 1979 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Which solution did the committee prefer when the state had to defend a judge?

A: It favored outside counsel under 3 V.S.A. §1102(e), with the Attorney General approving the terms of that engagement.

Q: Did the committee describe another route?

A: Yes. It discussed disclosure to opposing counsel in the office's pending and future cases, followed by waiver or withdrawal where counsel objected, but called that cumbersome.

Background and rules framework

The opinion discussed the state's statutory duty to represent employees under 3 V.S.A. §1102 and the outside-counsel provision of subsection (e). It did not cite a specific former Code rule.

Citations and references

Statute discussed:

• 3 V.S.A. §1102(e), quoted in the opinion for outside counsel when the Attorney General cannot adequately represent a state employee.

See also

• Vermont Ethics Op. 81-08: Opposing state agencies and the Attorney General
• Vermont Ethics Op. 81-10: Former judge prosecuting after an inquest

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 79-29
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”