Could Vermont defense counsel continue when a former juvenile client might testify for the prosecution?
Apply this to your situation
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 former public defender represented a juvenile in an unrelated CHINS matter and later defended an accused person in a sexual-assault case. The prosecution listed the juvenile as a possible witness against the new client.
The committee assumed, as counsel stated, that no relevant secret or confidence from the juvenile matter would be used in the new defense. It found a loyalty conflict from the possibility of a former client testifying against a current client, but said the conflict's degree mattered.
The opinion permitted counsel to continue if adequate representation was obvious and both clients gave informed consent. It said consent for the former juvenile client would require a guardian's consent. It also noted that the lawyer lacked a significant financial interest in renewing the former client relationship.
Currency note
This opinion was issued in 1988 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 Treat this page as historical context, not current guidance.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 possible testimony automatically require withdrawal?
A: No. The opinion allowed continued representation on the stated lack of relevant confidences and with informed consent from both clients.
Q: Who could consent for the former juvenile client?
A: The opinion said that client’s consent required a guardian’s consent.
Q: Would forgotten confidences be irrelevant?
A: The opinion said the question was whether counsel obtained secrets or confidences, not whether counsel still remembered them.
Background and rules framework
The committee discussed former Code DR 4-101, DR 5-101, and DR 5-105 on confidentiality, personal interests, and successive-client conflicts. It distinguished its related Opinion 88-2.
Citations and references
Vermont Code of Professional Responsibility:
- DR 4-101, DR 5-101, DR 5-105
Other opinions cited:
- Vermont Opinions 88-1, 88-2, 84-1, and 83-6
See also
- Vermont Ethics Op. 88-02: Former client trial witness
- Vermont Ethics Op. 90-07: Current client adverse witness
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 88-07
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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