Could a lawyer use information learned about a former client’s child to defend a current client?

Short answer Opinion 89-01 required the lawyer to decide whether the information was a former-client secret under DR 4-101. If disclosure would embarrass or likely harm the former client, the lawyer could not reveal or use it for the current client and should seek withdrawal.
Bar
VTBAR
Issued
1989

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This page answers the general question as of 1989. 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 Not binding precedent.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

A lawyer defending a mother in a parental-rights case wanted to use information acquired while representing another mother. The information concerned alleged conduct by that former client’s child in a foster home shared with the current client’s child. The former client could not be located.

The committee explained that information learned from someone other than the former client could still be a client secret if gained through the professional relationship. The lawyer had to determine whether disclosure would embarrass or likely harm the former client. Her absence did not extinguish the lawyer’s confidentiality duty.

If the information qualified as a secret, DR 4-101 barred its disclosure and use to advance the present client’s interests, and the lawyer should seek withdrawal. The State’s separate statutory confidentiality claim did not determine the lawyer’s duty to the former client.

Currency note

This opinion was issued in 1989 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 Treat this page as historical context, not current guidance.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 information have to come directly from the former client?

A: No. The committee said information from another source could still be a secret if gained during and incidental to the former representation.

Q: Did the former client’s unavailability remove the confidentiality duty?

A: No. The lawyer still had to decide whether disclosure would embarrass or likely harm her.

Q: What if the information was a client secret?

A: The lawyer could not reveal or use it for the current client and should seek withdrawal.

Background and rules framework

The opinion weighed former DR 7-101 on zealous representation against DR 4-101 on confidences and secrets. It cited EC 4-1 and EC 4-6.

Citations and references

Vermont Code of Professional Responsibility:

  • DR 7-101; DR 4-101(A), (B)(1); EC 4-1; EC 4-6.

Other opinions cited:

  • Vermont Opinions 88-6 and 88-1; ABA Informal Opinion 1301.

See also

Source

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