Could a Vermont law firm associate represent a lawyer in the same firm who was a defendant and likely witness in a civil case?
Apply this to your situation
This page answers the general question as of 1987. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer was the sole defendant in a civil action and expected to testify. The lawyer wanted an associate from the same firm to act as counsel.
The committee allowed the arrangement. It said former DR 5-101(B)'s advocate-witness concern applied when a lawyer served as both advocate and witness, or where trial counsel's firm lawyer was a witness but not a party. Here the testifying lawyer was a party and would not act as advocate.
The opinion noted that lawyers, like other litigants, generally could choose their own counsel, and the stated facts supplied no reason to override that choice.
Currency note
This opinion was issued in 1987 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 Treat this page as historical context, not current guidance.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 firm colleague’s likely testimony bar the associate from serving as counsel?
A: No. The witness was the party, not a trial advocate, so the committee found the former advocate-witness rule inapplicable.
Q: What distinction controlled the result?
A: The testifying lawyer’s role as a party rather than an advocate controlled the committee’s analysis.
Background and rules framework
The committee interpreted former Code DR 5-101(B) on lawyer-witnesses and cited cases distinguishing a lawyer-party from an advocate-witness.
Citations and references
Vermont Code of Professional Responsibility:
- DR 5-101(B)
Cases:
- International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975), lawyer-witness roles; Bottaro v. Hatten Associates, 680 F.2d 895, 897 (2d Cir. 1982), lawyer-party witness distinction
See also
- Vermont Ethics Op. 93-08: Counsel as possible witness
- Vermont Ethics Op. 14-01: Investigator as advocate and witness
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 87-06
- 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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