Could a Vermont bank trust officer who was also a lawyer prepare wills or trust documents for the bank’s customers?
Apply this to your situation
This page answers the general question as of 1992. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer employed as a bank trust-department officer proposed preparing wills, trust agreements, and related documents for bank customers. The proposed arrangements varied by who paid, whether the lawyer kept any fee, and whether the bank would be named a fiduciary.
The committee concluded the lawyer could not represent those customers. It reasoned that loyalty to the bank and the lawyer's career interest would affect choices in drafting documents, including terms that protected the bank's fees or limited its obligations. The conflict remained even if the customer separately paid the lawyer or the bank was not named as fiduciary.
The committee said the multiple-client consent provision did not resolve the problem because the lawyer could not adequately represent both interests in the first place. It also questioned whether customers would appreciate the subtle conflict well enough to consent knowingly.
Currency note
This opinion was issued in 1992 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 Treat this page as historical context, not current guidance.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 separate payment by the customer solve the conflict?
A: No. The opinion said the lawyer’s bank employment and fiduciary duty to the bank created the conflict regardless of the fee arrangement.
Q: Did it matter whether the bank was named fiduciary?
A: No. The committee said the bank could still benefit from the estate-planning relationship through other arrangements.
Q: Could disclosure and consent authorize the work?
A: The committee said DR 5-105(C) did not apply because the lawyer could not adequately represent both interests.
Background and rules framework
The committee applied former Code Canon 5, EC 5-1, EC 5-2, EC 5-14, DR 5-105, and DR 5-107 to the bank officer’s independent judgment, divided loyalty, and payment arrangements.
Citations and references
Vermont Code of Professional Responsibility:
- Canon 5, EC 5-1, EC 5-2, EC 5-14, DR 5-105, DR 5-107
Other opinions cited:
- Vermont Opinions 90-8 and 91-8
See also
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 92-01
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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