Ezel / Ethics Opinions / VTBAR

Could a Vermont firm sue a foster agency after a partner received confidential facts when the agency sought counsel for a ward?

Short answer Opinion 94-10 required the firm to withdraw from the related claim absent the agency's consent, despite no formal representation of the agency or ward.
Bar
VTBAR
Issued
1994
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1994. 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 Not binding precedent.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 took a potential claim against a private foster agency after a child had been assaulted by one of its wards. Unknown to that lawyer, a partner had earlier spoken with the agency when it sought representation for the ward and had received information about the same incident, including an admission. No formal representation began.

The committee said a good-faith preliminary request for legal help could create protected confidences under former DR 4-101 even without opening a file. The information concerned the same events as the proposed claim and could harm the agency and ward if used. The agency's role in seeking counsel for its ward did not remove its expectation of confidentiality. Without agency consent, the lawyer and firm had to withdraw.

Currency note

This opinion was issued in 1994 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 the lack of a formal engagement prevent protection of the agency's information?

A: No. The committee applied the duty to preserve information received in a preliminary consultation seeking counsel.

Q: Could the firm continue because the later lawyer learned the admission elsewhere?

A: No. The committee treated the earlier disclosure to the partner as protected and directly related to the proposed claim.

Background and rules framework

The opinion applied former DR 4-101 and EC 4-1 to preliminary consultations and referred to Vermont Opinion 92-13 and In re Themelis on protecting information acquired through an earlier legal connection.

Citations and references

Rules of Professional Conduct:

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

Cases:

  • In re Themelis, 117 Vt. 19 (1951), information acquired through a former connection

Other opinions cited:

  • Vermont Opinions 92-13 and 91-16, prospective-client information and former connections

See also

Source

What do the rules say today, for your facts?

This opinion is from 1994. 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