Could a Vermont municipal utility commissioner represent the state agency overseeing the utility’s regulatory setting?

Plain-English summary

A lawyer serving on a municipal utility commission, but not as its counsel, sought to represent the Vermont Department of Public Service on an electricity transaction under 30 V.S.A. § 212a. The municipal utility would not participate in that transaction. Both the department and commission had consented after full disclosure.

The committee allowed the representation on those facts. Because the lawyer did not act as commission counsel, the opinion said the multiple-representation rule did not apply. It found no current conflict under the public-official provision because the municipal utility was outside the transaction.

If related issues later affected the utility, the committee said the lawyer could recuse from commission discussion or decision. It also found that disclosure and consent addressed the confidentiality and appearance concerns identified in the opinion.

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 Treat this page as historical context, not current guidance.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 membership on the commission automatically bar state-agency representation?

A: No. The opinion allowed this transaction because the lawyer did not serve as commission counsel, the utility was not involved, and both bodies consented after disclosure.

Q: What if a related issue later came before the commission?

A: The committee said the lawyer could recuse from commission discussion or determination of that matter.

Q: Did the opinion apply the multiple-client rule?

A: No. It said DR 5-105(A) did not apply because the lawyer did not act as counsel to the commission.

Background and rules framework

The opinion discussed former Code DR 5-105(A), EC 8-8, DR 4-101 (1), EC 9-7, and DR 9-101 (8). The latter rule was described as inapplicable to the facts.

Citations and references

Vermont Code of Professional Responsibility:

• DR 5-105(A), EC 8-8, DR 4-101 (1), EC 9-7, DR 9-101 (8)

Statutes:

• 30 V.S.A. § 212a

See also

• Vermont Ethics Op. 03-06: Board member positional conflict
• Vermont Ethics Op. 89-05: Former government lawyer

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 92-06
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”