Could a lawyer defend a person by implicating a former criminal client in a related offense?
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.
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 Treat this page as historical context, not current guidance.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
- Vermont Ethics Op. 79-26: Opposing a former town client
- Vermont Ethics Op. 78-03: Former spouses in a divorce
Source
- Landing page: VBA topic page
- Original PDF: Vermont Advisory Opinion 97-12
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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