Where could a Vermont lawyer serving as assistant judge practice law, and did the restriction extend to affiliated lawyers?

Plain-English summary

The opinion examined a lawyer who served as an assistant judge while maintaining a private practice. It compared the former lawyer and judicial codes, including duties of client loyalty, zealous advocacy, judicial impartiality, and avoidance of apparent favoritism.

The committee said the lawyer could not practice in the court, hearing room, or chambers where the lawyer sat as judge. It also said the lawyer should not practice in another court where nonjudicial duties made the lawyer a functioning member of that court or where the dual role affected independent judgment or created an appearance of impropriety. The opinion discussed overlapping family and superior court duties, including work with the same judges and supervision of county operations.

The committee extended the disqualification to the assistant judge’s partners and associates under DR 5-105(D). It rejected screening as an answer to the risks of shared confidences and apparent influence in courts where the assistant judge functioned as a member.

Currency note

This opinion was issued in 1992 under Vermont's former Code of Professional Responsibility and Code of Judicial Conduct. 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 Treat this page as historical context, not current guidance.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: Could the assistant judge practice in the court where the lawyer sat?

A: No. The opinion barred practice in that court and its hearing rooms and chambers.

Q: Could the lawyer practice in a different court in the same county?

A: The opinion said no where judicial or nonjudicial duties made the lawyer a functioning member of that court, affected independent judgment, or created an appearance of impropriety.

Q: Could partners or associates appear where the assistant judge could not?

A: No. The committee imputed that disqualification to affiliated lawyers and rejected a screen on the facts it analyzed.

Background and rules framework

The opinion applied former Code DR 5-105(D) to affiliated lawyers and considered the lawyer’s confidentiality, independent judgment, advocacy, and public-office obligations alongside Judicial Canon 8A(2), Canon 2, and Canon 3. It cited Cheng v. GAF Corp. when discussing screening and firm disqualification.

Citations and references

Vermont Code of Professional Responsibility and Code of Judicial Conduct:

• DR 4-101, DR 5-101(A), DR 5-105(A), DR 5-105(D), DR 7-101(A)(1), DR 8-101(A)(2), EC 5-1, EC 5-2, EC 5-21, EC 7-2, EC 7-3, EC 9-2, EC 9-8, Judicial Canon 8A(2), Judicial Canon 2, Judicial Canon 3

Statutes:

• 24 V.S.A. § 71; 4 V.S.A. § 354

Cases:

• Cheng v. GAF Corp., 631 F2d 1052, 1056 (2d Cir. 1980), firm disqualification and screening

Other opinions cited:

• ABA Formal Opinions 142 and 242

See also

• Vermont Ethics Op. 14-01: Investigator as advocate and witness
• Vermont Ethics Op. 03-06: Board member positional conflict

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 92-02
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”