Must a Vermont lawyer disclose an adverse medical opinion obtained for a Social Security disability claim?
Apply this to your situation
This page answers the general question as of 1995. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer representing a Social Security disability claimant asked about an unfavorable consulting physician's opinion, distinguishing it from an adverse medical fact. The committee said the opinion evidence could be rejected for a reasonable reason, subject to a direct production request from the administrative law judge. It expressly left statutory interpretation and any controlling local application to the relevant authorities.
If there was no good-faith basis to reject the adverse opinion and it was material, knowing concealment could be “similar fault” under the statute. Under former DR 7-102(A)(7) and DR 1-102(A)(4), a lawyer could not assist fraudulent concealment and had to withdraw if the client refused permitted disclosure. The opinion said the lawyer could not reveal protected information without client consent when the concealment was similar fault rather than a crime, because DR 4-101(C)(3)'s crime-prevention exception would not apply.
Currency note
This opinion was issued in 1995 under Vermont's former Code of Professional Responsibility and discusses then-current Social Security provisions. 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: Was every unfavorable medical opinion automatically disclosable?
A: No. The committee said a rejected opinion was not per se material, and addressed reasonable grounds for rejecting it and direct ALJ production requests.
Q: Could the lawyer disclose a client's protected information without consent for noncriminal similar fault?
A: The opinion said DR 4-101(C)(3)'s crime-prevention exception did not support that disclosure when the conduct was similar fault only.
Background and rules framework
The opinion separated unfavorable opinion evidence from adverse factual evidence and assessed statutory materiality alongside the former Code's bans on assisting fraud and its protection of client confidences.
Citations and references
Rules of Professional Conduct:
- Vermont Code of Professional Responsibility DR 7-102(A)(7), DR 1-102(A)(4), and DR 4-101(C)(3)
Statutes:
- Social Security Act, 42 U.S.C. § 1383a(a), fraudulent acts
See also
Source
- Landing page: Vermont Bar Association confidences opinions
- Original PDF: Opinion 95-08
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
What do the rules say today, for your facts?
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