CONFIDENCES OF THE CLIENT

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14-02 A l awyer, who has represented a corporation and its sole shareholder, may subsequently represent the purchaser of the corporate shares and the corporation where the interests are materially adverse, provided that both the former shareholder and the new shareholder give informed consent to such representation, confirmed in writing. In addition, a lawyer may serve as an as escrow agent of the pledged stock held as security in the sale, provided that both parties give i nformed consent.

10-06 Vermont attorneys can utilize Software as a Service in connection with confidential client information, property, and communication, including for storage, processing, transmissions, and calendaring of such materials, as long as they take reasonable precautions to protect the confidentiality of and to ensure access to these materials.

06-07 Lawyer may represent private clients in matters before Lawyer's former governmental agency, provided that Lawyer had not participated personally and substantially in such matters during government service, absent consent of the governmental agency; and provided that in the new representation Lawyer would not use or reveal confidences of Lawyers's former government client.

05-02
(1.) The requesting attorney, who is general counsel to a state agency, should not share any information obtained in the course of representing the agency with an attorney whose firm represents an opposing party in any matter to which the agency is a party.

(2.) The requesting attorney should not personally participate, directly or indirectly in any active matter in which the requesting attorney's spouse is involved as an attorney on behalf of the opposing party.

03-03 A lawyer may engage an outside contractor as a computer consultant to recover a lost data-base file, which contains confidential client information so long as: The lawyer clearly communicates the confidentiality rules to the outside contractor; the contractor fully understands the confidentiality rules and embraces the obligation to maintain the confidentiality of any information obtained in the course of assisting the lawyer; and the lawyer determines that the contractor has instituted adequate safeguards to preserve and protect confidential information.

00-02 When a lawyer is appointed to represent a guardian ad litem for a minor child, the guardian ad litem, and not the minor child, is the client of the lawyer; and therefore, the lawyer may not reveal the confidences of the child without the consent of the guardian ad litem.

99-02
In the context of a plea agreement in a criminal case, a defense attorney should not advise a client to sign a written Waiver of Rights drafted by the prosecution without first fully informing the client of the legal consequences of the Waiver, and that by signing it, the client could also be considered to have waived the right to keep confidential the nature and substance of communications that had taken place between the lawyer and client in deciding whether to enter a plea and could be used against the client in any subsequent dispute over whether the lawyer fully discharged his or her professional duty to the client. Further, the attorney should not sign an Attorney's Certificate as part of a written plea agreement which has the effect of disclosing the nature, substance and extent of confidential attorney-client communications; which will be used as evidence of the knowing and voluntary nature of the plea; and which may have the effect of limiting the client's remedies against the attorney in any subsequent dispute concerning the client's rights involved in the plea agreement.

98-12 A lawyer who represented husband in a divorce action many years before is not necessarily disqualified from representing husband’s new wife in a divorce action against husband.

98-07 (1.) A lawyer retained by an insurance company to represent a policy holder may not provide billings containing confidential information to an outside auditor employed by the insurance company without the client’s informed consent, given after full disclosure as to the type of information which may be found in billing records.  (2.) A lawyer may not comply with insurance company "billing guidelines" without a full explanation of them to the client (insured) and only upon obtaining client’s full and informed consent. Furnishing detailed information required by the guidelines directly to the insurance company with the knowledge that the billings will be forwarded to an outside auditing firm, would similarly require full and informed consent from the insured client.

98-06 A lawyer who has represented both husband and wife in a number of matters may not thereafter represent the husband against the wife in a divorce where issues in the divorce representation will require the lawyer to do anything which would injuriously affect the former client in any matter.

97-03 If a lawyer, while with one firm, acquires no knowledge or information relating to the representation of a particular client of the firm, and that lawyer later joins another firm, the second firm may represent another client in the same or a related matter even though the interests of the two clients conflict.

96-11 An attorney who has secured information from an individual in the context of a free initial office conference, in which legal advice has been sought and given in circumstances reasonably likely to create an expectation of confidentiality, is required to treat such information as if it had been received in the course of representation, even if the conference does not result in the individual engaging the attorney for further services. Any confidences or secrets obtained as a result of the conference continue to be protected thereafter, and the attorney may not disclose such information, even if the attorney determines that the individual has presented information to a tribunal that is contradicted by the information previously given to the attorney.

96-09 Information imparted to a lawyer by a prospective client seeking legal representation is generally protected from further disclosure or use under DR 4-101, even though the lawyer does not ultimately work for the would-be client. However, if the lawyer takes adequate measures to limit the information initially imparted by the prospective client, and no representation relationship is created, the lawyer may continue to represent, or to undertake representation of another client in the same or related matter. When the subject matter of the discussion between the prospective client and the lawyer, or a member of her or his firm, is not critical to the representation of either the existing or new client in the same or related matter, the lawyer need not withdraw from either representation.

95-22 An attorney who was once, but is no longer, actively involved in representation of a public corporation in matters such as public offerings, annual meetings, and takeover defense planning may not, without the consent of the corporation, properly represent the company’s former president/board chairman, who is a significant shareholder in the company, in connection with exercising his rights as a shareholder, including efforts to promote the sale of the company to outside interests.

95-19 Where an attorney learns through a client confidence that one of several jointly represented clients has committed a fiduciary crime against one of the other joint clients, the attorney may not breach the confidence by alerting law enforcement authorities or third parties or by alerting the other clients, but the attorney must immediately withdraw from further representation of any of the clients.

95-16 An attorney may not disclose a client’s confidences or secrets even after the representation has terminated, and a client’s prior grant of limited authority to discuss a case when an adverse party in the course of investigation does not constitute a consent to disclose confidences and secrets with the adverse party after termination of representation.

95-13 A lawyer may represent the wife against her husband in a contested divorce even though the lawyer had previously represented the husband in a criminal matter several years earlier, where there is no substantial relationship between the issues in the divorce and the former representation and the lawyer did not learn or retain any confidences or secrets from the husband that would work to his disadvantage in the divorce.

95-08 When an attorney representing a client in a social security disability benefit hearing obtains medical opinion evidence which is not consistent with his client’s claim, such evidence need not be disclosed, provided that (1) there is reasonable justification for rejecting the opinion and accepting another; and (2) that no direct request for production of such materials has been made by the Administrative Law Judge.

94-10 An attorney must withdraw from representation of a client who has a potential claim against a private foster care agency when the attorney's law partner had already been provided with confidential information by the agency concerning the subject matter of the potential claim

93-11 A lawyer must withdraw from representing a Town on an Act 250 project, where the lawyer's partner had earlier given legal advice to an opponent of the same project.

93-07 An attorney may not disclose to a former client or to a tribunal a confidence or secret gained in the course of a professional relationship with other clients where disclosure would be embarrassing or likely to be detrimental to the other clients.

92-13 An attorney may not disclose to an existing client that a person has contacted the attorney regarding possible representation in a claim against the existing client. The attorney is not precluded from representing his or her existing client in a subsequent dispute with the prospective client if the attorney did not learn any secrets relevant to the lawsuit as a result of the initial contact about representation.

92-11 A lawyer may represent a new client despite the objection of former clients where the latter are not parties in the new action, and where there is no substantial relationship between the subject matter of the former and current representation.

92-10 Absent client consent, an attorney should not report the unethical behavior of another attorney if the first attorney learned of the unethical behavior in a confidential communication, since privileged information is clearly beyond the scope of the mandate of DR 1-103. Absent client consent, an attorney should not report the unethical behavior of another attorney if the first attorney's knowledge of the unethical behavior is a secret, the disclosure of which would be detrimental to the first attorney’s client, since such information is "privileged" within the meaning of DR 1-103.

92-08 Public defender's office may not represent a client on criminal charges where defense of current client may require assertion that former clients actually perpetrated the offense and engaged in illegal conduct, and would violate the confidences and secrets of those former clients.

91-14 Where parties agreed to disclose all financial information, and this information was used in entering into a separation agreement, a lawyer has the duty to disclose to the opposing party the existence of newly found mutual funds which had been earlier omitted by inadvertence

91-09 The practice of (1) asking the defendant whether the defendant has been counseled by his or her attorney regarding the rights being waived by the change of plea, and (2) requiring the defendant to sign a written form stating, among other things, "I believe that my attorney has done all that anyone could do to counsel and assist me" at a change of plea in a criminal matter does not present an issue under the Vermont Code of Professional Conduct

91-06 Information constituting secrets or confidences contained in the client files maintained by a special project of the Vermont Legal Aid project may not be disclosed to federal monitors examining the files of the project.

89-17 Unless consented to by the client, after full disclosure, an attorney may not correct or challenge a prosecutor's factual representations to the court, favorable to the attorney's client, even when the attorney harbors doubt as to the accuracy of the prosecutor's representations, where the attorney's sole source of information regarding the facts stated by the prosecutor constitutes a secret or confidence of the client.

89-08 Rules requiring preservation of confidences and secrets of a client and precluding multiple simultaneous representation and/or representation of conflicting interests do not apply to or prohibit attorneys for a state agency from representing agency against a noncustodial parent in child support enforcement action after having been assigned child support rights by the custodial parent, where agency attorneys never established an attorney-client relationship with either parent.

89-04 An attorney may continue to represent plaintiffs when the attorney's paralegal also works in a Court Diversion program which once processed a brother of the defendant, and the brother's behavior has some relevance to the current suit. 3 V.S.A. §163 precludes the paralegal from sharing information gathered in the diversion process with the attorney without the relative's consent; screening the paralegal from further involvement in the case would remove any question of impropriety, but the Code does not strictly apply to the paralegal's conduct here.

89-01 Secrets of a former client include information from a source other than the client, which were gained in the course of the lawyer-client relationship; where the lawyer has knowledge of a client's secret, the lawyer must not disclose the secret if the client has requested that secret remain inviolate or if disclosure would otherwise be embarrassing or detrimental to client's interests.

88-13 A lawyer, not an Assistant Attorney General, who regularly appears before a quasi-judicial board on behalf of a state agency, may represent the agency in litigation where the board is represented by the Attorney General's office and provided that the lawyer's previous contact with the Attorney General's office was on unrelated matters not involving any secrets or confidences.

88-12 A firm may represent a client in a dispute against former clients where the dispute is not substantially related to any matters as to which the firm represented the former clients and where the firm learned no secrets or confidences of the former clients that could be used to the disadvantage of the former clients or to the advantage of the current client.

88-07 A defense attorney may continue to represent a client when a former client may testify as an adverse witness and the attorney does not share secrets or confidences or have a potential pecuniary interest in future relations with the former client, provided both clients make informed consents to the representation.

88-06 In representing a person accused of murdering a former client, a public defender may present evidence of the former client's reputation for violence if none of that evidence contains confidences or secrets originating with the attorney-client relationship with the former client.

88-02 An attorney must withdraw from representation when a former client with whom an attorney shares confidences and secrets is a trial witness for the opposition, unless the former client makes an informed consent to allow the attorney's use of the confidences and secrets and, if it is "obvious" that the attorney can protect both clients' interests, the former and present clients each make informed consents to allow the attorney's continued employment not-withstanding any conflict of interest.

88-01 A firm may not represent a criminal defendant charged with the first degree murder of a former client without betraying client secrets, in violation of DR 4-101.

87-19 The rule permitting multiple simultaneous representation only when it is obvious that an attorney can adequately represent the interests of more than one client does not permit an Agency of state government to avoid resulting conflicts arising from simultaneous representation by having the Agency subordinate its interests to those of individual clients; other issues are also addressed.

87-17 A defense attorney need not disclose to the prosecution the existence of a bank statement, not relevant to the charges on which he represents the client, that allegedly reflects money illegally obtained by the client.

87-02
As a result of the deletion of Disciplinary Rule 2-103(D)(4)(a) from the Code of Professional Responsibility, a lawyer may participate in a for-profit prepaid legal service plan under the Code of Professional Responsibility, provided the plan complies with the guidelines set forth in this Opinion. The lawyer must exercise independent professional judgment on behalf of the client, maintain all client confidences, avoid conflicts of interest, and practice competently. The lawyer also must insure that the plan does not involve improper advertising solicitation or fee sharing.

86-03 Employees of a legal service organization and the organization may warn potential victims of the threats of a client or an applicant for services.

85-08 A law firm cannot continue to represent a defendant in a civil action after hiring a law student-clerk who has already performed extensive work on the same case while employed by the law firm representing the plaintiff.

85-07 It is not an attorney's duty to protect the confidential communications of a client so extensively that it requires the lawyer to purge the file of notes of those communications.

85-06 An attorney may represent a corporate client in administrative litigation where s/he has formerly represented another corporate client in a commercial transaction, learned no confidences or secrets of the client during the transaction, and there is no substantial relationship between the work undertaken for the former client and the present administrative litigation.

85-05 An attorney who represented a married couple in another matter may not reveal any confidence or secret to one spouse's attorney in a pending divorce action, without consent and full disclosure.

84-08 Under the facts presented, an attorney is not required to withdraw from a boundary dispute even though s/he represented the opposing party, when a property in question was purchased, where the prior representation specifically excluded investigation of "area, boundaries and such matters as would be disclosed by a survey and/or a personal inspection of the premises" and the attorney gained no secrets or confidences during the former representation relating to the subject matter of the boundary dispute

84-05 Law firm contacted but not retained by prospective client and later represents other person in defense of suit

83-06 A lawyer may provide the defense of a criminal case even though in doing so he will attempt to impeach the testimony of a person the lawyer formerly represented in a juvenile case because the past juvenile case and the current criminal case are not substantially related. The lawyer may not, however, disclose or use confidential information obtained from the witness while a client.

83-01 A lawyer who is retained by a client to return money allegedly stolen by the client may not disclose the name of the client or any other information by the client relative to the taking of the money.

82-07 A lawyer who subsequent to settling a personal injury action learns from the client additional information that might have reduced the settlement may not disclose this information to the opposing party to rectify any deception that might have been caused.

81-01 An attorney must maintain his client’s confidences if he finds out from his client that his client made false representations to him which resulted in an agreement disposing of a criminal case. If, however, the attorney receives information from someone other than his client that clearly establishes his client intentionally committed a fraud upon a person or tribunal, the attorney must call upon his client to rectify the same. If his client refuses or is unable to do so, the attorney must himself reveal the fraud to the affected person or tribunal.

80-14 Attorney who has represented wife in divorce proceedings against first and second husbands, thereafter representing first husband in criminal proceeding alleging criminal assault on second husband

 

 

 

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