Could a public defender use independently gathered evidence of a deceased former client's violent reputation in a murder defense?
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This page answers the general question as of 1988. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A public defender represented a person accused of murdering a deceased former client. The defense sought to show the former client's reputation for violence to support self-defense. The office said its evidence came from new witness interviews and public records, and its review of old files had not revealed or revived relevant former-client confidences or secrets.
The committee distinguished its Opinion 88-1, where information used against a deceased former client had originated in the lawyer-client relationship. Former DR 4-101 protected such information even if some facts also appeared in public records. Here, the committee treated independently developed evidence differently because it was not gained in the professional relationship. On those narrow facts, it permitted continued representation and use of the evidence.
Currency note
This opinion was issued in 1988, before Vermont's 1999 adoption of the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 former client's death end confidentiality protection?
A: No. The committee repeated its earlier view that confidences and secrets survived death.
Q: Why was independently developed reputation evidence allowed?
A: It came from witness interviews and public records, not the earlier professional relationship with the deceased client.
Background and rules framework
The opinion applied former DR 4-101(A)'s distinction between protected confidences and secrets gained through representation and independently obtained information. It did not decide the effect of a former client's death on separate conflict or loyalty duties.
Citations and references
Former Vermont disciplinary rules:
- DR 4-101(A).
Other opinions cited:
- Vermont Opinions 88-1, 76-18, and 88-7.
See also
- Vermont Ethics Op. 92-08: Former clients as suspects
- Vermont Ethics Op. 88-07: Former juvenile client as witness
Source
- Landing page: VBA public defender opinions
- Original PDF: Vermont Advisory Opinion 88-06
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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