Could counsel disclose a completed guardianship-account theft learned during joint representation?

Plain-English summary

An attorney had represented parents and their minor child in an injury settlement and remained counsel of record in the child’s probate guardianship. The father later reported that the mother had withdrawn guardianship funds and disappeared. The committee assumed the misappropriation was complete, rather than continuing.

Because the lawyer remained attorney of record for all three, the committee treated the father’s call as his confidence and as a secret of the mother that would likely harm her if disclosed. It found no permission to reveal it to the surety, authorities, or other clients merely to protect the child. Its analysis expressly depended on the crime being complete; it noted a different exception could apply to an intended crime.

Once the conflict appeared, the lawyer could advise the clients only that an irreconcilable conflict required withdrawal and suggest separate counsel. The lawyer could tell the probate court the conflict required withdrawal, but not disclose the privileged facts that created it.

Currency note

This opinion was issued in 1995 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 Treat this page as historical context, not current guidance.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: Could counsel notify the surety or law enforcement?

A: No, on the opinion’s assumption that the mother’s crime was complete and the information was protected.

Q: Could counsel tell the father or child what was learned in confidence?

A: The committee barred disclosure to the other joint clients and required withdrawal from all of them.

Q: What could counsel say to the probate court?

A: That an irreconcilable conflict required withdrawal, and, if pressed, that privileged information created the conflict.

Background and rules framework

The opinion applied former DR 4-101(A) and (B) to a joint representation and explained why its exception under DR 4-101(C)(3) did not apply to a completed crime.

Citations and references

Vermont Code of Professional Responsibility:

• DR 4-101(A)–(B); DR 4-101(C)(3); DR 1-103.

Other opinion cited:

• Vermont Opinion 92-10.

See also

• Vermont Ethics Op. 89-01: Information about a former client’s child
• Vermont Ethics Op. 79-26: Opposing a former town client

Source

• Landing page: VBA withdrawal opinions
• Original PDF: Vermont Advisory Opinion 95-19
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”