Could a partnership's former lawyer represent two partners in dissolution talks with a withdrawing third partner?
Apply this to your situation
This page answers the general question as of 1981. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer had handled matters for a farm partnership of three brothers and had drafted wills for two. The third brother planned to withdraw and retained separate counsel. The other two asked the lawyer to represent them in division of partnership assets. The lawyer also represented the partnership in an ongoing boundary dispute.
The committee accepted the lawyer's account that earlier partnership work had produced no information usable against the withdrawing brother and assumed the three partners' interests in the boundary case remained aligned. On those assumptions, the committee allowed the lawyer to represent the two brothers in dissolution negotiations. It distinguished Opinion 80-21 because that lawyer's prior joint involvement was more substantial.
The committee warned that interests in the boundary litigation could later diverge. It said EC 5-19 would require the lawyer to honor the third brother's request to withdraw as his counsel in that case, and continued work for the other two should be premised on their agreement to bear their own fees and litigation costs rather than charging the partnership.
Currency note
This opinion was issued in 1981 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 Treat this page as historical context, not current guidance.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 prior work for the partnership automatically bar the negotiations?
A: No. The committee relied on the absence of information usable against the withdrawing partner and the assumed common interest in the pending case.
Q: Could the third partner require withdrawal from the boundary litigation?
A: The committee said EC 5-19 would require the lawyer to honor that partner's request to withdraw as his lawyer in the pending case.
Q: Who would pay for continued litigation on behalf of the two partners?
A: The committee said continued work should rest on an agreement that those two partners, not the partnership, would bear the fees and costs.
Background and rules framework
The opinion cited former Code EC 4-5 on client information and EC 5-19 when discussing the withdrawing partner's request in the pending litigation.
Citations and references
Vermont Code of Professional Responsibility:
- EC 4-5, EC 5-19
Other opinion cited:
- Vermont Opinion 80-21, distinguished by the earlier lawyer's more substantial joint representation.
See also
- Vermont Ethics Op. 80-21: Joint clients' later divorce
- Vermont Ethics Op. 81-11: Estate fiduciary and corporate roles
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 81-02
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
What do the rules say today, for your facts?
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