Could a Vermont lawyer who sat on a bank board represent a private client seeking a loan from that bank?
Apply this to your situation
This page answers the general question as of 1991. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The lawyer sat on a bank's board but did not serve as the bank's lawyer. A private client sought the lawyer's help with real estate financing through the bank. The lawyer proposed to stay out of the bank's loan-review process.
The committee found no automatic bar to representing the borrower if the lawyer completely avoided the loan or refinancing decision and, at the outset, disclosed the representation and possible conflicts to the borrower and the bank. Both had to consent.
The committee said disclosure to the client should include the possibility that information learned during the representation might create competing duties to the bank, requiring withdrawal. It also called for discussion of the fee consequences of such withdrawal and cited its earlier Opinion 90-8 on whether a borrower could knowingly consent to the dual roles.
Currency note
This opinion was issued in 1991 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 Treat this page as historical context, not current guidance.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 recusal from the loan review alone enough?
A: No. The opinion also required full disclosure to the borrower and bank and consent from both.
Q: What if information about the borrower created a conflict with the director’s bank duty?
A: The opinion said the lawyer would have to withdraw and should disclose that possibility, including fee consequences, at the outset.
Background and rules framework
The opinion discussed former Code Canon 5 and EC 5-1, EC 5-2, EC 5-14, and EC 5-16 on independent judgment and divided loyalty. It also cited EC 2-23 and EC 2-32 in discussing withdrawal and its consequences.
Citations and references
Vermont Code of Professional Responsibility:
- Canon 5, EC 5-1, EC 5-2, EC 5-14, EC 5-16, EC 2-23, EC 2-32
Other opinions cited:
- Vermont Opinion 90-8
See also
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 91-08
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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