Could Vermont wrongful-death counsel continue the estate’s appeal and distribution case after ceasing to represent one heir?
Apply this to your situation
This page answers the general question as of 1993. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The lawyer represented a minor decedent's estate and heirs in a wrongful-death case. After a verdict, a defendant appealed and the successor administrator sought distribution of the recovery under 14 V.S.A. § 1492. The lawyer had stopped representing the father in the distribution case; the mother's counsel sought the lawyer's withdrawal from the estate's cases.
The committee allowed the lawyer to continue the estate's appeal. On the facts supplied, the lawyer alone knew the case thoroughly, withdrawal would substantially burden the estate, and any testimony in the distribution case would be cumulative. The opinion applied the hardship exception to the former lawyer-witness rule.
The committee also allowed continued representation of the estate in the distribution matter after the lawyer withdrew from representing the father. It said counsel who prosecuted the wrongful-death claim could not represent a single heir in a contested distribution because information gained for all heirs and their competing shares created confidentiality and conflict concerns.
Currency note
This opinion was issued in 1993 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 Treat this page as historical context, not current guidance.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 possible testimony in the distribution hearing require withdrawal from the appeal?
A: No. The committee relied on the lawyer’s distinctive knowledge, the hardship to the estate, and the stated possibility that testimony would be merely cumulative.
Q: Could the lawyer continue for the estate in distribution?
A: Yes. The opinion allowed estate representation after the lawyer withdrew from representing the father.
Q: Could the lawyer represent one heir in the contested distribution?
A: No. The committee said the wrongful-death lawyer could not represent one heir where heirs sought competing shares of the proceeds.
Background and rules framework
The opinion applied former Code DR 5-101(B) and EC 5-10 to the possibility of counsel testifying. It discussed 14 V.S.A. § 1492 and the confidentiality and competing-interest concerns in distributing wrongful-death proceeds among heirs.
Citations and references
Vermont Code of Professional Responsibility:
- DR 5-101(B), EC 5-10
Statutes:
- 14 V.S.A. § 1492
See also
- Vermont Ethics Op. 14-01: Investigator as advocate and witness
- Vermont Ethics Op. 00-12: Estate and former client
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 93-08
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
What do the rules say today, for your facts?
This opinion is from 1993. Ezel checks the current Vermont Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace