Could a lawyer handle an appeal against a former client arising from the same transaction the lawyer handled for that client?

Plain-English summary

A lawyer had represented a corporation seeking payment on a note from another party. The parties settled, but the corporation later sued on the note again. The former opposing party, whom the lawyer had also represented in an unrelated matter, asked the lawyer to handle an appeal from the new judgment against the corporation.

The committee applied Canon 5, EC 5-1, and DR 5-105(A) to the lawyer's continuing duty of loyalty to the former client. It relied on ABA Informal Opinion 1322 for the rule against later representing the former adversary in an action against that client arising from the same or a closely related transaction. It also noted the risk that confidential information from the former representation could be used, even inadvertently.

The committee said the lawyer should decline the appeal despite its appellate posture. It added that DR 5-105(D) extended the disqualification to the lawyer's partners and associates.

Currency note

This opinion was issued in 1980 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 Treat this page as historical context, not current guidance.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: Did handling only the appeal avoid the conflict?

A: No. The committee said the lawyer should decline even appellate representation arising from the same transaction.

Q: Could another lawyer in the firm take the appeal?

A: The opinion quoted DR 5-105(D), which extended a required refusal or withdrawal to partners, associates, and affiliated lawyers.

Background and rules framework

The opinion applied former Code Canon 5, EC 5-1, DR 5-105(A), and DR 5-105(D) to adverse work against a former client in the same transaction.

Citations and references

Vermont Code of Professional Responsibility:

• Canon 5, EC 5-1, DR 5-105(A), DR 5-105(D)

Other opinion cited:

• ABA Informal Opinion 1322 (1976), cited for same-transaction former-client adversity.

Case cited:

• T.C. Theater Corp. v. Warner Bros., 113 F. Supp. 265 (S.D.N.Y. 1935), cited for the substantial-relationship test.

See also

• Vermont Ethics Op. 83-06: Former juvenile client as witness
• Vermont Ethics Op. 84-05: Initial inquiry and later adverse defense

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 80-08
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”