1998 ADVISORY ETHICS OPINIONS

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98-13 A lawyer may not represent a criminal defendant in a criminal case where another client in an unrelated matter is a State's witness, notwithstanding that each client may make an informed consent after a full disclosure of any relevant facts concerning such dual representation, because such dual representation would involve an inherent risk of violation of one or more Disciplinary Rules.

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.

98-11 Fee splitting or sharing is permitted only with consent of the client and where the fee division fairly reflects the work and contribution of each attorney; a firm may not provide an after- the-fact thank-you gift as a gesture of goodwill to the attorney who referred a case to the firm. 98-10 Not Published.

98-09  This Opinion withdraws Opinion 96-10 issued by the Professional Responsibility Committee, which held that where the true owner of IOLTA trust account funds could not be identified, the requisite time period having passed, the prudent alternative was the transfer of the funds to the Vermont Bar Foundation, subject to repayment in the event the client later made claim to the funds.

98-08  A lawyer may not accept a fee from an investment advisor for referring clients to the advisor even with prior disclosure and consent by the client. Clients view recommendations to other professionals as part of their representation by their lawyers and expect their lawyers to act independently of any underlying financial interest in such a referral.

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.

98-05 Compliance with the appropriate Disciplinary Rules is satisfied when a lawyer or a law firm transmits a ledger sheet or similar notification at the end of each calendar month, reflecting receipts for disbursements involving the client’s trust account. Withdrawal from a client’s trust fund of earned fees is allowed unless the fee is disputed by the client. Withdrawal may occur at the time the invoice is sent to the client. Should the client then dispute the transfer, immediate re-deposit of the funds into the trust account is required. Finally, no advance notice need be given the client before a disbursement is made from his or her trust account unless the agreement between the parties requires such advance notice.

98-04 A lawyer may not agree to waive the expenses of court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence unless the client is indigent or a party to a class action, and unless the client remains ultimately liable for such expenses.

98-03 An attorney may not ethically approach pro se defendants in pending criminal matters in District Court and offer either a business card or advertising circular as an offer of representation in the matter pending before the court.

98-02 Not Published.

98-01 A lawyer may represent a spouse in a divorce proceeding and that spouse’s parents in a guardianship proceeding in which they seek guardianship of their grandchild so long as the lawyer can adequately represent the interests of both the spouse and the grandparents and they consent to the representation after full disclosure.



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1978-Present Index to the Advisory Ethics Opinions of the VBA Committee on Professional Responsibility