2009 ADVISORY ETHICS OPINIONS

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09-01 “Metadata” refers to electronically stored information about electronic documents. Metadata often is included in files that are stored electronically. It may be apparent on the face of an electronic document, or may be hidden. Some metadata may be innocuous and unimportant, revealing basic information about dates an electronic file was created and edited. On the other hand, however, sensitive and confidential information, including comments reflecting attorney-client communications and tracked changes revealing work product, may also be contained in metadata embedded in electronic documents. When documents are transmitted and received electronically, tools may be available that enable the recipient to search for hidden metadata.

09-02 The inquiring attorney wishes to offer non-legal services in addition to the attorney's law practice. The non-legal services would be in the nature of financial planning for college costs and might involve the sale of insurance products. In order to carry out this plan within the Rules, the attorney would have to act carefully to insure that the clients of the financial planning business would not be under the impression that they were receiving legal advice. In addition, to maintain separation, separate billing for law-related services and legal services should be practiced.

09-03 It is not unethical for an attorney to appeal probate court reduction of his executor’s fee without first petitioning to appoint a special administrator to represent the estate’s interests.

09-04 Determining whether the current representation of a client presents a conflict of interest involves the application of objective standards and does not depend upon the undefined and very general concept of “appearance of impropriety”.

 

09-05 (1) Where, six years earlier, a law firm prepared proposed estate documents for a husband and wife at the husband’s request; where the husband and his various legal entities have been clients of the firm for thirteen years; where all information utilized for the preparation of the estate documents was provided by the husband/client; and where the firm’s only contact with the wife was to mail copies of the proposed documents to her; and where the husband and wife are now involved in a divorce proceeding, the firm may continue to represent the husband/client and his various legal entities in matters unrelated to the divorce proceeding.

(2) Additionally, the firm is entitled to secure the payment of its fees through a mortgage from the husband's business entities as long as it satisfies the requirements of Rule 1.8 for a written agreement, after the client has been given an opportunity to seek advice of independent counsel.

09-06 In securing the attendance of an out-of-state fact witness for a trial, an attorney does not violate the Vermont Rules of Professional Conduct by reimbursing the witness for wages that would otherwise have been earned by the witness during the relevant time period. The wages may be paid in addition to the statutory attendance fee and travel allowance, so long as the wage replacement payment is not conditioned on the delivery of favorable testimony and the payment is disclosed to the opposing party.

09-07 Lawyer, an elected member of a legislative body of a municipality, may join a law firm in an “of counsel” position, in which another attorney associated with the law firm in an “of counsel” relationship represents several municipal unions, and Lawyer may continue to serve on the municipality’s legislative body so long as Lawyer does not participate in any action, discussions or votes on matters relating to the unions.

09-08 An attorney licensed to practice in Vermont with active status is engaged in the practice of law and governed by the Vermont Rules of Professional Conduct (the “VRPC”) when accompanying disabled beneficiaries of his organization to court for matters where by commission or omission of an attorney’s duties the beneficiary’s rights may be affected, even though the attorney does not hold himself out as an attorney; such attorney must disclose his status and behave accordingly.

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