Ezel / Ethics Opinions / VTBAR

Could a Vermont firm represent a town on a bridge permit after a partner gave an opponent advice about the same project?

Short answer Opinion 93-11 required withdrawal because the partner's prior advice protected the opponent's information and was substantially related to the town's later Act 250 matter.
Bar
VTBAR
Issued
1993
Source
View Original PDF

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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.

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 Not binding precedent.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

One partner reviewed an opponent's documents about a town bridge project, gave written legal views, and contacted the Secretary of State's office for that person. Eleven months later, another partner undertook the town's Act 250 proceedings for the same bridge. The first partner did not open a file or bill for the earlier work.

The committee said the lack of formal billing or a file did not remove protection for information given in a request for legal help. At least an implied attorney-client relationship existed. Because the advice and the later Act 250 work concerned the same project, the committee found them substantially related and required the town's lawyer to withdraw under former DR 4-101 and DR 5-105.

Currency note

This opinion was issued in 1993 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: Did not billing or opening a file avoid the conflict?

A: No. The committee treated preliminary legal advice and the information received with it as protected, even without those formal steps.

Q: Why were the two matters substantially related?

A: Both concerned opposition to the same bridge project, including the later permit proceeding in which the town wanted representation.

Background and rules framework

The opinion applied former DR 4-101's confidentiality duty, DR 5-105's differing-interests rule, and the substantial-relationship test for successive representations.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

  • Vermont Opinions 92-13 and 91-16, preliminary consultations and successive representation

See also

Source

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