Could a Vermont public defender firm represent a murder defendant when the alleged victim was its former client?

Plain-English summary

A public defender firm was assigned to defend a murder charge involving a person it had earlier represented in probation cases. The planned self-defense case could use affidavits in the former client's file about violence and information about juvenile proceedings. The firm argued some affidavits were public records and found no relevant privileged material.

The committee distinguished narrower evidentiary confidences from broader Code secrets under former DR 4-101. It said even public-record affidavits learned through the prior representation and knowledge of juvenile proceedings were protected secrets in this setting. Confidentiality survived the client's death, and next of kin could not consent to disclose these personal secrets. Because the defense would require their use, the firm had to withdraw.

Currency note

This opinion was issued in 1988 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 public availability of the affidavits remove the secrecy duty?

A: No. The committee said the materials remained protected Code secrets even though they could be obtained from court records.

Q: Did the client's death end confidentiality or allow family waiver?

A: No. The committee said the duty survived death and next of kin could not waive the deceased person's personal confidences and secrets.

Background and rules framework

The opinion applied former DR 4-101 and EC 4-4, EC 4-5, and EC 4-6. It also noted statutory confidentiality for juvenile proceedings under 33 V.S.A. § 651.

Citations and references

Rules of Professional Conduct:

• Vermont Code of Professional Responsibility DR 4-101, EC 4-4, EC 4-5, and EC 4-6

Statutes:

• 33 V.S.A. § 651, juvenile proceedings confidentiality

See also

• Vermont Ethics Op. 95-16: Former-client testimony
• Vermont Ethics Op. 92-11: Unrelated former clients

Source

• Landing page: Vermont Bar Association confidences opinions
• Original PDF: Opinion 88-01
• Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”