Must a Vermont divorce lawyer disclose mutual funds inadvertently omitted from agreed financial discovery after settlement?

Plain-English summary

After a divorce separation agreement and final order, a spouse's broker found two mutual funds that had inadvertently been omitted from interrogatory answers. Both sides had agreed to disclose all assets when making the settlement.

The committee relied on the parties' agreement and V.R.C.P. 26(e)(2)'s duty to supplement inaccurate discovery responses. It said knowingly concealing the funds at that point would conflict with former DR 1-102(A)(4) and (5) and DR 7-102(A)(3). It concluded the lawyer had to tell opposing counsel about the funds, while noting a possible duty to correct information underlying the court order.

The opinion distinguished Vermont Opinion 82-7, where later confidential client information after a personal injury settlement did not clearly establish fraud and no comparable discovery duty required disclosure.

Currency note

This opinion was issued in 1991 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 inadvertent omission remove the duty to correct discovery?

A: No. The committee required disclosure once the lawyer learned of the omitted funds in the described agreed-disclosure setting.

Q: Why was this different from a post-settlement confidence in Opinion 82-7?

A: Here the parties agreed to disclose all assets, and the committee found a discovery-rule duty to correct the inaccurate responses.

Background and rules framework

The opinion applied former DR 7-102(A)(3), DR 1-102(A)(4) and (5), DR 4-101(C), and V.R.C.P. 26(e)(2). It cited Vermont Opinions 82-7 and 89-2 in distinguishing disclosure duties.

Citations and references

Rules of Professional Conduct:

• Vermont Code of Professional Responsibility DR 7-102(A)(3), DR 1-102(A)(4) and (5), and DR 4-101(C)
• V.R.C.P. 26(e)(2)

Other opinions cited:

• Vermont Opinions 82-7 and 89-2

See also

• Vermont Ethics Op. 82-07: Later settlement information
• Vermont Ethics Op. 89-02: Client death during settlement

Source

• Landing page: Vermont Bar Association confidentiality disclosure opinions
• Original PDF: Opinion 91-14
• Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”