INDEPENDENT PROFESSIONAL JUDGMENT

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08-03 Lawyer’s proposal to share fees with a nonlawyer (mortgage broker) representing clients seeking reduced mortgage payments is impermissible fee-splitting. Nor may Lawyer form an LLC with the nonlawyer, who would own a minority interest in the LLC and be an employee, because to do so could impair Lawyer’s independent professional judgment. It is likewise recommended that Lawyer engage the services of the nonlawyer as an independent contractor or employee only with close and adequate supervision of the work product of the nonlawyer.

01-06 An attorney may not serve as an arbiter on an arbitration panel when one of the parties in arbitration is an ongoing client of the attorney, even though the attorney is not representing the client with respect to the matter in arbitration.

97-14 Lawyer A must withdraw from any further participation as a member of a municipal zoning board in all proceedings related to a particular conditional use application, where Lawyer B, a member of Lawyer A’s firm, represents clients who have challenged the zoning board’s jurisdiction to reconsider an earlier decision that had been favorable to the interests of Lawyer B’s clients. Similarly, Lawyer B has a non-waivable duty to withdraw from further representing clients in a matter on which Lawyer A had participated in a quasi-judicial capacity.

97-11 An attorney who has received a disciplinary suspension imposed by the Supreme Court is subject to the continuing jurisdiction of the Professional Conduct Board and remains bound by the Code of Professional Responsibility and the Disciplinary Rules. A suspended attorney may be employed as a law clerk, paralegal, investigator or in any capacity as a lay person, by a licensed lawyer or law firm on an hourly or salaried basis, but may not share in legal fees. Such employment should be restricted to activities that are performed for the employing attorney, as opposed to direct services to clients; must be supervised by the employing attorney; and must not be activities that constitute the practice of law; nor should the employment arrangement give the appearance to the public or to clients that the suspended attorney is permitted to practice law.

The Committee on Professional Responsibility issues this Opinion after considerable discussion and debate, which reflected differences among the Committee members on the resolution of the questions presented. Moreover, neither the Disciplinary Rules, nor other rules, orders or decisions of the Vermont Supreme Court offer specific guidance on every issue. Therefore, we emphasize that this Opinion attempts to fill the gaps in the relevant authorities, offers useful guidelines to the members of the Bar and is purely advisory.

97-10 An attorney whose client first agrees to a settlement and later refuses to endorse the settlement check may not accept a substitute check payable to the attorney as trustee on behalf of his client for deposit in his Trust Account and distribution.

97-08 A lawyer must exercise discretion in determining the necessary length of time for the subsequent retention or disposition of a client’s file. The contents of certain files may indicate the need for a longer retention period than do the contents of files of similar age based on their relevance and materiality to situations which may foreseeably arise. Moreover, in disposing of a client’s files, a lawyer should protect the confidentiality of its contents.

If possible, notice may be given the client as to the date of disposition, affording the client the opportunity to take possession of all or part of the material in the file.

96-04 An attorney who contracts with a state office to provide representation for the office may not represent private clients in other cases in which the office is a party unless both parties consent after full disclosure of the possible effect of such representation on the exercise of the attorney's independent professional judgment.

96-02 It is permissible for an assigned attorney to represent a criminal defendant even though the defendant (a) is subject to payment of a fee to a special fund for Public Defenders only upon being found guilty of an offense (DWI cases), and (b) may be required to pay part or all of the costs of representation by assigned counsel by order of court entered either at the time of assignment of counsel or subsequent to the assignment, including cases where the defendant is accused of violating probation for not having paid court-ordered sums to the Public Defender Special Fund.

94-01 An attorney aids in the unauthorized practice of law and violates Rules of Professional Conduct regarding conflict of interest, fee-splitting and the provision of independent legal advice when said attorney participates in a financial planning company's arrangement whereby that organization gathers information necessary to prepare estate planning documents, prepares the documents and sends the documents to attorney for review.

92-15 A lawyer may not represent a client whose interests are adverse to those of another current client. This applies even if the two representations are unrelated. Multiple representation for matters in litigation is allowed only in limited instances where each client consents after full disclosure and there is a clear showing that either clients' respective interests will not be adversely affected by the representation of the other client.

92-02 The lawyer who performs statutory duties as an assistant judge: (1) should not practice law in the court, hearing rooms and chambers where the lawyer sits as judge; (2) should not practice law in a court where the nonjudicial duties and responsibilities make that lawyer a functioning member of the court and affects that lawyer's independent judgment and/or creates an appearance of impropriety. In addition, when that lawyer is disqualified from providing representation to a particular client or in a particular court, all lawyers affiliated with that lawyer are disqualified to the same extent.

92-01 An attorney who is an officer in the trust department of a bank may not represent customers or potential customers of the bank by which he or she is employed in the preparation of wills, trust agreements and other legal instruments pertaining to trusts, estates and related trust department business, whether or not the client pays for these services to the bank or to the individual officer/lawyer, and whether or not the bank is named as a fiduciary.

91-08 An attorney is entitled to represent a private client seeking financing through a lending agency in which the attorney sits on the Board of Directors provided that: (1) the attorney does not participate in any part of the process which determines the client's eligibility for the loan (e.g., the loan review process, voting on approval of the loan, etc.); and, (2) the attorney, at the outset, fully discloses to the private client and to the bank his representation of the client and, after full disclosure to the client of potential conflicts that could arise, both parties consent to his representation.

91-05 Irrespective of whether the Defender General serves a fixed term or at the pleasure of the Governor, the Defender General must exercise independent professional judgment, free of influence or pressure from other persons, officials, or agencies of state government, in the administration of public defender and assigned counsel programs; and must take steps necessary to assure the independence of individual public defenders or assigned counsel to guarantee the integrity of the relationship between those lawyers and their clients.

90-05 A lawyer may go into business with a client, provided their interests in the business do not differ and the client does not expect the lawyer to exercise his professional judgment in the business for the protection of the client.

87-10 DR 5-105 prohibits a law firm from representing two clients in litigation in which one client is a party and the other client's employees will testify, and the potential exists that their testimony will provide the basis for future litigation between the clients.

82-09 Attorney's lien on client's file

80-08 Attorney's employment, in an appellate proceeding, by a former adversary in a case against a former client in a matter arising out of the same transaction

79-27 Attorney representing both employer or its insurance carrier and the employee or his representative in a worker's compensation case

77-21 Lawyer representing a police officer association and criminal defendants in cases investigated by officers of the association

77-15 Attorney representing wife charged with murder of husband acting as administrator of husband's estate

 

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