Could outside counsel for a Vermont state agency oppose a board represented by the attorney general's office?

Short answer Opinion 88-13 permits the agency lawyer to continue on the stated facts because the lawyer was not an assistant attorney general and had no board-client relationship or access to the attorney general's case files.
Bar
VTBAR
Issued
1988

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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.

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 Not binding precedent.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

An agency lawyer had regularly worked with the attorney general's office and represented the agency before a quasi-judicial board. After an unfavorable board ruling, the agency and board took opposing positions in Superior Court, where the attorney general represented the board. The agency lawyer said prior contacts with that office concerned unrelated matters and did not include the board case files.

The committee distinguished its earlier Opinion 81-8 about opposing representations within the attorney general's office because this lawyer was outside that office. It found no stated impairment of independent judgment under DR 5-105 and no board-client relationship or case information that created a confidentiality concern.

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 routine contact with the attorney general's office create a conflict?

A: No. The opinion emphasized that those contacts were unrelated and the lawyer had not accessed the attorney general's files for this matter.

Q: Why did the earlier opposing-agencies opinion not control?

A: Opinion 81-8 concerned attorneys within the attorney general's office; the requesting lawyer was not an assistant attorney general.

Background and rules framework

The committee applied former DR 5-105 to independent judgment and considered whether the lawyer held any board confidences through a professional relationship.

Citations and references

Rules of Professional Conduct:

  • Vermont Code of Professional Responsibility DR 5-105

Other opinions cited:

  • Vermont Opinion 81-8, opposing state agencies represented within the attorney general's office

See also

Source

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