Ezel / Ethics Opinions / VTBAR

Could a Vermont lawyer represent a town in a tax appeal against an existing client from an unrelated case?

Short answer Opinion 92-15 found the adverse litigation representation improper when the current client objected, despite the matters being unrelated. It did not decide the lawyer’s separate lister-to-counsel question.
Bar
VTBAR
Issued
1992
Source
View Original PDF

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.

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 Not binding precedent.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 lawyer served as a municipal lister and agreed to represent the town in property-tax appeals. One taxpayer appealing the assessment was also the lawyer’s client in an unrelated civil case and objected to the lawyer appearing for the town.

The committee applied DR 5-105’s loyalty standard to concurrent litigation clients. It said unrelatedness did not remove the problem of opposing a current client. Under the Code, multiple representation could proceed only in limited circumstances with full disclosure, both clients’ consent, and an obvious ability to represent each adequately. The objecting client’s response showed the relationship had already been adversely affected and consent could not be obtained.

The committee limited its answer to litigation. It did not decide whether the lawyer’s earlier participation as lister separately barred acting as counsel on the appeal.

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 Treat this page as historical context, not current guidance.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 the unrelated civil case make the tax appeal permissible?

A: No. The committee found opposition to a current client in litigation unacceptable on these facts.

Q: Could the lawyer rely on client consent?

A: No. The taxpayer objected, so the consent required by DR 5-105(C) was unavailable.

Q: Did the opinion decide the lister-to-counsel issue?

A: No. The committee said that separate question was unnecessary to reach.

Background and rules framework

The opinion applied former Code DR 5-105 to adverse current clients in litigation, citing ABA Formal Opinion 92-367 and Vermont Opinion 91-4 among its related authorities.

Citations and references

Vermont Code of Professional Responsibility:

  • DR 5-105

See also

Source

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