Ezel / Ethics Opinions / VTBAR

Could an assistant Vermont attorney general work on class actions against former clients when class counsel purported to waive the conflict?

Short answer Opinion 99-09 advised against participation because the lawyer had not shown the matters were unrelated and the former clients themselves had not consented; class counsel could not waive for them.
Bar
VTBAR
Issued
1999
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1999. 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 Not binding precedent.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

An assistant attorney general had worked for an organization representing a class adverse to the State and had personally represented some class members on other matters. The lawyer asked about participating for the State in pending and later class actions and whether lawyers for the class could waive a potential conflict.

The committee applied Vermont Rule 1.9(a) and (b). It found the State and former clients materially adverse, and said the request did not establish that the prior and current matters were not substantially related. Consent after consultation had to come from each affected former client; counsel for a class could not give that consent on the class's or its members' behalf. The committee therefore said the lawyer should not participate in either class action.

Currency note

This 1999 opinion applies Vermont Rule 1.9. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999; the opinion gives no precise issue date. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.

Common questions

Q: Could class counsel waive the lawyer's former-client conflict?

A: No. The committee said Rule 1.9 required consent after consultation from the former clients themselves.

Q: Did the committee accept the lawyer's assertion that the matters were unrelated?

A: No. It found the request insufficient to show they were not substantially related and advised the lawyer not to participate.

Background and rules framework

The opinion distinguished the lawyer's own prior representations under Rule 1.9(a) from former-firm representations under Rule 1.9(b). It discussed substantial relationship as a fact-specific inquiry and cited State v. Crepeault on the former-client standard.

Citations and references

Rules of Professional Conduct:

  • Vermont Rules of Professional Conduct 1.9(a) and 1.9(b); Model Rule 1.9(a)

Cases:

  • State v. Crepeault, 167 Vt. 209, 704 A.2d 778 (1997), former-client substantial relationship standard

See also

Source

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