Ezel / Ethics Opinions / VTBAR

Must a Vermont lawyer report a good-faith belief that opposing counsel secretly contacted the lawyer's represented client?

Short answer Opinion 87-08 required a report on the stated facts and said the lawyer need not investigate or finally decide misconduct before informing the authority empowered to investigate.
Bar
VTBAR
Issued
1987
Source
View Original PDF

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.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

In a products-liability suit, a manufacturer's lawyer learned that the plaintiff's lawyer's secretary had written to the represented manufacturer seeking information about the disputed product. Opposing counsel acknowledged in court that the writer was his secretary but said he did not know whether he had requested the letter.

The committee applied former DR 1-103(A)'s reporting duty and DR 7-104(A)(1)'s contact rule. It said the lawyer with information need not investigate or determine guilt before reporting; those tasks belonged to the empowered tribunal or authority. It interpreted the duty to arise from a good-faith or substantial belief and concluded that the lawyer should report these facts for further investigation.

Currency note

This opinion was issued in 1987 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.

Common questions

Q: Did the lawyer have to prove a disciplinary violation first?

A: No. The committee said the reporting lawyer need not conduct an investigation or decide whether opposing counsel actually violated a rule.

Q: What did the committee require in this case?

A: It concluded that the lawyer should report the described facts to an appropriate authority for investigation.

Background and rules framework

The opinion interpreted former DR 1-103(A) with DR 1-102(A)(1) and DR 7-104(A)(1), while comparing the then-proposed ABA Model Rule 8.3(a).

Citations and references

Rules of Professional Conduct:

  • Vermont Code of Professional Responsibility DR 1-103(A), DR 1-102(A)(1), and DR 7-104(A)(1)
  • ABA Model Rule 8.3(a), discussed as a comparison

See also

Source

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