Ezel / Ethics Opinions / VTBAR

Could a Vermont firm continue litigation after hiring a lawyer from its opposing counsel’s firm?

Short answer Opinion 97-03 allowed continued representation because the lateral lawyer had not worked for the opposing former-firm client and held no usable confidential information. It called for keeping the lawyer out of the pending litigation and discussions.
Bar
VTBAR
Issued
1997
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1997. 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 Not binding precedent.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 firm representing homeowners against a developer hired an associate from the developer’s law firm. The associate had not worked on the case or for the developer and recalled no confidential discussions about it.

The committee applied DR 4-101 and a substantial-relationship analysis, refusing to presume irrebuttably that every lawyer at the former firm had learned the developer’s secrets. On the facts presented, the associate had no file, notes, recollection, or opinion based on confidential information from the developer, so the hiring firm could continue the homeowners’ case.

The opinion said the firm should keep the associate from participating in or discussing the pending litigation. It described a lawyer’s burden to show an absence of usable confidences where evidence of a prior confidential relationship existed.

Currency note

This opinion was issued in 1997 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 Treat this page as historical context, not current guidance.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: Did the associate’s former employment automatically disqualify the hiring firm?

A: No. The committee examined whether the associate had worked for the developer or actually acquired protected information.

Q: What facts supported continued representation?

A: The associate had no work on the developer matter and no file, notes, or recollection of its confidential information.

Q: Could the associate work on the pending case?

A: The opinion said the firm should keep the associate out of the litigation and related discussions.

Background and rules framework

The opinion applied former Code DR 4-101(A) and (B) and discussed Vermont Opinions 81-4 and 95-13 on former-client information and precautions.

Citations and references

Vermont Code of Professional Responsibility:

  • DR 4-101(A), DR 4-101(B)

See also

Source

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