1997 ADVISORY ETHICS OPINIONS

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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.

97-13
A lawyer may agree with a client to charge an hourly fee which includes some or all disbursements, provided the client remains ultimately liable for actual litigation costs and the fee is "reasonable".

97-12 An attorney may not represent a criminal defendant where one theory of defense involves implicating a person who was previously represented by the same attorney in defense against a charge brought by the same victim.

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.

97-09 Law Firm A may employ a paralegal who formerly was employed by Law Firm B, despite the fact that the two firms are engaged in litigation against each other in a matter in which the paralegal participated for Law Firm B. However, Law Firm A must now screen the paralegal from involvement in the pending litigation and any matter in which the interests of Law Firm B’s client is adverse to any client of Law Firm A. Further, Law Firm A must ensure that no information relating to the representation of the client of Law Firm B is revealed by the paralegal to any person in Law Firm A.

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.

97-07 Funds prepaid by a client for future legal services must be placed in a client’s trust and cannot be co-mingled with the attorney’s business funds. The attorney can access only that portion of the retainer which compensates the attorney for services previously rendered or costs incurred in the course of that client’s representation. An engagement letter and fee agreement signed by the client and law firm addressing these issues is strongly recommended. Disputes over whether the law firm can and should access funds held on deposit over a client’s objections should be referred to the Arbitration of Fees Committee of the Vermont Bar Association or satisfactorily resolved with the client prior to accessing the funds.

97-06 Newly enacted H.70 criminalizes the refusal of a motor vehicle operator to take an evidentiary test for alcohol in specified circumstances. Counsel for such an operator may not advise the client to refuse to take the evidentiary test, but may advise the client of the legal consequences of taking or refusing the evidentiary test and any good faith argument for contesting the validity of the law.

97-05 A lawyer does not violate DR 4-l0l by communicating with a client by e-mail, including the Internet, without encryption.

The use of an Internet web site to communicate with clients and prospective clients requires compliance with DR 2-l03 and DR 2-l04 relating to advertising and solicitation.

97-04 The requesting attorney has asked whether she may utilize the services of a professional collection agency in collecting accounts receivable from her clients.

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.

97-02 Where plaintiff's treating physician and medical expert is also an employee of a corporate medical facility defendant, plaintiff's attorney may communicate directly with the physician regarding the physician's treatment of plaintiff and the physician's expert opinion regarding issues raised in the lawsuit. This is so notwithstanding an instruction by the corporate defendant's attorney that plaintiff's attorney not speak with the treating physician. This rule also applies to plaintiff's second treating physician and medical expert who is an employee and vice president of the corporate medical facility defendant.

97-01 When a trade association employs attorneys to provide legal services to its corporate members, the attorneys so employed may inform non-lawyer employees of the trade association of the details of such services rendered to officials of a corporate member if the governing body of the corporate member waives the ethical requirement of confidentiality.


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