Could a Vermont lawyer represent a new applicant in a regulatory proceeding where a former client was a competing party?

Short answer Opinion 89-15 allowed the new representation because the former acquisition work was not substantially related to the current proposals and the lawyer had learned no former-client secrets or confidences relevant to the new case.
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 Not binding precedent.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 firm had represented a partnership in a corporate acquisition requiring Public Service Board approval. Later, it represented two companies whose regulatory proposals competed with a proposal by that former client in a consolidated proceeding.

The committee applied its substantial-relationship test for successive representations. It accepted the stated facts that the acquisition and new regulatory proposals involved different facts and legal issues and that the firm had learned no pertinent former-client confidences or secrets.

The committee allowed the new representation despite the former client appearing as a competing party. It stressed that DR 4-101(B)'s limits on using protected former-client information applied whether or not the matters were substantially related.

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 Treat this page as historical context, not current guidance.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: Was the former client’s presence as a competitor enough to disqualify counsel?

A: No. The opinion found no conflict on the stated lack of substantial relationship and protected information.

Q: Did the substantial-relationship test replace the confidentiality rule?

A: No. The committee said DR 4-101(B) applied regardless of that test.

Q: What earlier representation did the lawyer perform?

A: The firm represented the former client in a corporate acquisition requiring Public Service Board approval, rather than in the later competing proposals.

Background and rules framework

The committee applied former Code DR 4-101(B) and its earlier substantial-relationship analysis to successive representation. It compared Vermont Opinions 79-26 and 85-6 and cited Silver Chrysler Plymouth.

Citations and references

Vermont Code of Professional Responsibility:

  • DR 4-101(B)

Cases:

  • In Re Themelis, 117 Vt. 19, 23 (1951), former-client duties; Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973), former-client conflicts; Silver Chrysler Plymouth v. Chrysler Motors Corporation, 518 F.2d 751, 754 (2d Cir. 1975), substantial relationship

Other opinions cited:

  • Vermont Opinions 78-3, 83-6, 79-26, 81-4, and 85-6; ABA Informal Opinion 885

See also

Source

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