Could a lawyer defend a person by implicating a former criminal client in a related offense?

Short answer Opinion 97-12 said the lawyer could not represent the second defendant. The proposed defense would unavoidably use information from the former client's representation and put the clients' interests directly against each other.
Bar
VTBAR
Issued
1997

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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 Not binding precedent.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 defended a person accused of misconduct against a minor. It investigated a second person as a possible perpetrator. When the second person was charged with a similar crime against the same victim in a later time period, that person asked the firm's lawyer for representation. The new defense would implicate the original client.

The committee said this was a former-client confidentiality issue under DR 4-101, rather than a concurrent-client issue. The lawyer would unavoidably use information learned while representing the first client to pursue leads and witnesses, and might have to cross-examine the former client in a closely connected matter.

The committee found consent from the former client unreasonable on these facts because the two defendants' interests were directly opposed and an actual, significant conflict was predictable.

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 Treat this page as historical context, not current guidance.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: Why did DR 4-101 matter?

A: The lawyer had received information and conducted witness interviews for the former client that the new defense would unavoidably use.

Q: Was this a concurrent representation problem?

A: No. The lawyer no longer represented the first client; the committee analyzed protection of that former client’s confidences.

Q: Did the committee regard former-client consent as a workable solution?

A: No. On the facts presented, it said a waiver or consent from the first client would not be reasonable.

Background and rules framework

The opinion applied DR 4-101(A) and (B) on client confidences and secrets and cited EC 4-1.

Citations and references

Vermont Code of Professional Responsibility:

  • DR 4-101(A)–(B); EC 4-1.

Other Vermont opinions cited:

  • Opinions 92-8, 84-1, 94-10, 95-13, 95-16, and 95-22.

See also

Source

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