May a defense lawyer question a prosecution witness whom the lawyer represented in an unrelated juvenile case?

Plain-English summary

A criminal defense lawyer expected to question a prosecution witness whom the lawyer had represented in a juvenile case. The lawyer did not recall that earlier case, did not possess the file, and reported no direct relationship between the two matters. The lawyer asked whether the defense could continue with both parties' consent, either without accessing the old file or after inspecting it.

The committee concluded that the substantial-relationship test did not disqualify the lawyer merely because information from the old case might bear on the witness's credibility. Under DR 4-101(B), however, the lawyer could not disclose a former client's confidence or secret or use it to that person's disadvantage. If that duty prevented proper representation of the defendant, the lawyer would have to withdraw. The committee also said DR 5-101(A) required withdrawal if concern for the witness prevented effective questioning on the defendant's behalf.

The committee reached its answer without relying on consent. It declined to treat the former client's consent as determinative and did not answer the separate question about examining the old file. It observed that seeking the file might appear to be an effort to find information for the defense.

Currency note

This opinion was issued in 1983 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 Treat this page as historical context, not current guidance.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 the earlier juvenile representation automatically bar the criminal defense?

A: No. The committee found no substantial relationship between the juvenile matter and the criminal case and said the objective disqualification test did not apply on these facts.

Q: Could the lawyer use confidential information from the witness's former case to impeach her?

A: No. The opinion applied DR 4-101(B) to prohibit disclosure of the former client's confidences or secrets and use of them to her disadvantage.

Q: Did both parties' consent settle the conflict question?

A: The committee answered without relying on consent and said it would not treat the former client's consent as determinative.

Background and rules framework

The opinion applied former Code DR 4-101(B) to former-client information and DR 5-101(A) to the lawyer's ability to exercise judgment for the defendant. It discussed DR 5-105(C) when addressing consent, without deciding that consent resolved this matter.

Citations and references

Vermont Code of Professional Responsibility:

• DR 4-101(B), DR 5-101(A), DR 5-105(C)

Cases cited:

• Silver Chrysler Plymouth Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975), cited for the substantial-relationship test.
• In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (5th Cir. 1976), cited when discussing former-client consent.

See also

• Vermont Ethics Op. 84-05: Initial inquiry and later adverse defense
• Vermont Ethics Op. 88-12: Unrelated former clients

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 83-06
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”