Could a Vermont firm defend a person whom an earlier caller had asked about suing but had not retained the firm to sue?
Apply this to your situation
This page answers the general question as of 1984. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A plaintiff had earlier contacted a firm about bringing the same suit the firm later defended. No lawyer at the firm recalled the call, and the firm believed any contact had been preliminary.
The committee said an initial inquiry did not automatically make the caller a client. The relationship would arise if the firm undertook to advise the person or solicited facts for that purpose. Without such advice or a good-faith disclosure of confidential information, the firm could continue the defense.
The opinion said a caller who in good faith disclosed a case confidence while seeking counsel should not face that lawyer as opposing counsel. Such a situation could require withdrawal under DR 1-102(A).
Currency note
This opinion was issued in 1984 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 Treat this page as historical context, not current guidance.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 a preliminary call automatically create a lawyer-client relationship?
A: No. The opinion looked for an undertaking to give advice or to obtain facts for advice.
Q: What if the caller shared a confidence in good faith?
A: The committee said later adverse representation could require withdrawal in that situation.
Background and rules framework
The committee discussed former Code DR 5-105(A) and (C), DR 4-101(A), and DR 1-102(A) in analyzing the initial inquiry and protected information.
Citations and references
Vermont Code of Professional Responsibility:
- DR 5-105(A), DR 5-105(C), DR 4-101(A), DR 1-102(A)
See also
- Vermont Ethics Op. 85-02: Former associate in divorce
- Vermont Ethics Op. 88-12: Unrelated former clients
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 84-05
- 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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