May a Vermont lawyer tell an employer client that an employee called about a possible discrimination claim against it?

Plain-English summary

An employee called a lawyer seeking advice about a possible discrimination claim. The lawyer quickly learned the employer was an existing client, stopped further factual disclosure, declined representation, and suggested other lawyers. The employee asked the lawyer not to tell the employer about the call.

The committee held that the inquiry was a secret under former DR 4-101 and could not be disclosed to the employer. It declined to resolve the lawyer's duties in responding to an auditor's letter for the employer. It said impressions the lawyer formed independently, rather than facts intentionally communicated by the caller, were not client confidences or secrets on the stated facts. Thus the call did not itself prohibit representing the employer later, but material secrets learned from the caller would have changed that conclusion.

Currency note

This opinion was issued in 1992 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: Could the lawyer alert the employer to the employee's call?

A: No. The committee treated the employee's requested secrecy about a possible claim as protected under former DR 4-101.

Q: Was later employer representation always prohibited?

A: No. The committee said it was not barred solely by the limited call when no material secrets were supplied by the employee.

Background and rules framework

The opinion used former DR 4-101 and EC 4-1 to protect a person who sought to retain a lawyer even though representation did not follow. It considered DR 5-105(A) in distinguishing the caller from an accepted client.

Citations and references

Rules of Professional Conduct:

• Vermont Code of Professional Responsibility DR 4-101(A) and (B), DR 5-105(A), and EC 4-1

Cases:

• Westinghouse Electric Corporation v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978), cited for preliminary consultation protection

See also

• Vermont Ethics Op. 96-09: Prospective-client inquiry
• Vermont Ethics Op. 96-11: Bankruptcy consultation

Source

• Landing page: Vermont Bar Association adverse-contact opinions
• Original PDF: Opinion 92-13
• Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”