Could a public defender's office represent an accused person by blaming former clients for the crime?

Short answer Opinion 92-08 required the office to withdraw absent informed former-client consent when the defense would require using former clients' protected information to accuse them of the crime or related illegal conduct.
Bar
VTBAR
Issued
1992

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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.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A public defender's office represented a homicide defendant. Its investigation identified three former clients as possible perpetrators. The office held confidential information relevant to accusing at least one of them; another former client's drug history might also matter to a diminished-capacity defense.

The committee said former DR 4-101 protected those clients' confidences and secrets. A zealous defense would likely require allegations that former clients committed the homicide or supplied illegal drugs, intruding into protected information. While the committee recognized that informed former-client consent could permit disclosure in some situations, it viewed that consent as unlikely here and required the office to withdraw absent consent.

Currency note

This opinion was issued in 1992, before Vermont's 1999 adoption of the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 the conflict based solely on having represented the other people before?

A: No. The committee focused on protected former-client information that the current defense would likely have to use.

Q: Could informed consent change the result?

A: The opinion recognized informed former-client consent as a possible route in principle, but found it unlikely on these facts and required withdrawal without it.

Background and rules framework

The opinion applied former DR 4-101 to the public defender office's former-client information and discussed the duty of zealous representation under Canon 7. It cited Opinions 88-2 and 88-7 on consent and adverse witness examination.

Citations and references

Former Vermont disciplinary rules:

  • DR 4-101.

Other opinions cited:

  • Vermont Opinions 88-2 and 88-7.

See also

Source

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