Could a former client's limited permission to speak to an adverse person let a subpoenaed lawyer disclose client confidences later?
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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 had represented a client injured while working for a former client of the lawyer. During the first representation, the client knew and consented when the lawyer discussed a limited investigative issue with the former client. The client later changed counsel and brought a claim against that person, who subpoenaed the original lawyer.
The committee applied former DR 4-101. It said protected communications and investigative work remained confidential after the representation ended. The earlier permission was limited and did not satisfy DR 4-101(C)(1)'s requirement of consent after full disclosure for the proposed testimony. Without that consent or a court order under DR 4-101(C)(2), the lawyer had to decline to testify.
Currency note
This opinion was issued in 1995 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 confidentiality end when the client changed lawyers?
A: No. The committee said DR 4-101's ban on disclosure continued after termination of the representation.
Q: What would allow the subpoenaed lawyer to testify about protected material?
A: The opinion identified client consent after full disclosure or a court order contemplated by DR 4-101(C)(2).
Background and rules framework
The opinion distinguished a client's narrow permission for one investigative conversation from the formal full-disclosure consent required to reveal other confidences or secrets later.
Citations and references
Rules of Professional Conduct:
- Vermont Code of Professional Responsibility DR 4-101(A), (B), (C)(1), and (C)(2)
See also
- Vermont Ethics Op. 91-06: Legal aid client files
- Vermont Ethics Op. 97-05: Email and confidentiality
Source
- Landing page: Vermont Bar Association confidences opinions
- Original PDF: Opinion 95-16
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
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