Could a Vermont lawyer continue a divorce modification case when another current client was likely to testify for the opposing spouse?

Plain-English summary

A lawyer represented Client A on a marital matter and Client B in a separate divorce modification case. Client A later disclosed that she lived with Client B's former husband and expected to be a principal witness against Client B.

The committee said cross-examining Client A would likely impair loyalty and independent judgment toward the two current clients even though their matters were unrelated. It concluded the lawyer should seek leave to withdraw from Client B's case.

The opinion added that if there was a reasonable likelihood Client B's confidences or secrets could be used to Client A's advantage, the lawyer also had to sever the relationship with Client A under DR 4-101(B).

Currency note

This opinion was issued in 1990 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 Treat this page as historical context, not current guidance.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 two matters need to be related for a conflict?

A: No. The opinion said the loyalty concern remained where a lawyer would likely cross-examine one current client while representing another.

Q: Which matter did the committee say counsel should leave?

A: It said counsel should seek leave to withdraw from Client B’s divorce modification case.

Q: When did the opinion call for ending Client A’s representation too?

A: If Client B’s confidences or secrets could reasonably be used for Client A’s advantage, the lawyer had to sever that relationship as well.

Background and rules framework

The committee applied former Code DR 5-105(B) and EC 5-15 to concurrent-client loyalty and DR 4-101(B) to client confidences. It relied on Cinema 5’s discussion of undivided loyalty.

Citations and references

Vermont Code of Professional Responsibility:

• DR 5-105(B), EC 5-15, DR 4-101(B)

Cases:

• Cinema 5, Limited v. Cinema. Inc., 528 F2d 1384 (1976), undivided loyalty to current clients

Other opinions cited:

• Philadelphia Bar Association Opinion 81-51; Vermont Opinions 88-2 and 88-7

See also

• Vermont Ethics Op. 08-04: Current client adverse witness
• Vermont Ethics Op. 98-06: Former spouses divorce conflict

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 90-07
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”