Could a lawyer who handled a couple’s real estate matters represent the husband against the wife in divorce?
Apply this to your situation
This page answers the general question as of 1998. 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 both spouses in title, mortgage, lease, and rent-collection matters involving their home and commercial property. The husband then asked the lawyer to act against the wife in their divorce.
The committee applied former Code DR 4-101(B)(3) and its earlier Opinion 78-3. It said the divorce necessarily involved disposition of assets acquired or managed during the lawyer’s former representation of both spouses. Acting for the husband would injure the former client wife in those same matters, so the representation was improper.
The committee also pointed to Opinion 80-21, which had rejected a husband’s divorce representation after a lawyer had recently served both spouses in business and personal matters.
Currency note
This opinion was issued in 1998 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 Treat this page as historical context, not current guidance.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 lawyer’s limited real estate work avoid the conflict?
A: No. The committee found the divorce involved the same marital assets for which the lawyer had represented both spouses.
Q: Could the lawyer represent the husband against the wife?
A: No. The opinion concluded that doing so would injure the former client wife in matters in which the lawyer had represented her.
Q: Which former-client principle controlled?
A: The committee cited Opinion 78-3: a new adverse matter is improper if substantially related to the old work or injurious to a former client in that work.
Background and rules framework
The opinion discussed former Code DR 4-101(B)(3) on use of client confidences and the former-client standard stated in Vermont Opinion 78-3. It also cited Opinion 80-21.
Citations and references
Vermont Code of Professional Responsibility:
- DR 4-101(B)(3)
See also
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 98-06
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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