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In re Gadbois9/21/2001
sibility by representing "Mrs. Rainville in her divorce from Mr. Rainville, even though he had represented Mr. Rainville in his first divorce."
The majority of the Board accepted the panel's findings and conclusions, adding:
The facts show that during the representation of the second wife, respondent endeavored to use his knowledge and prior representation of husband against him. For instance, he told husband's new counsel that respondent's "participation would positively affect the dynamics of the case" and that husband would be more likely to settle if he were working with a "known cast of characters."
In response to respondent's renewed argument that representing a new client against a former client does not violate the Code of Professional Responsibility, the Board stated:
Representation of subsequent, conflicting interests in divorce cases violates the lawyer's duty of loyalty and confidentiality to the original client. It has been prohibited in Vermont for some time. See, e.g., In re Themelis, 117 Vt. 19, 83 A.2d 507 (1951) (lawyer disbarred for representing subsequent conflicting interests in divorce case based on former Canons of Professional Ethics).
The Code of Professional Responsibility, as interpreted by several courts throughout the country, implicitly carried forward that prohibition. See ABA/BNA Lawyers' Manual on Professional Conduct, 51:205-218. The Rules of Professional Conduct, adopted in Vermont this past September 1, made that prohibition explicit. Rule 1.9, Vermont Rules of Professional Conduct.
Based on its findings and conclusions, the Board recommended that we publicly reprimand respondent and require him to reimburse his former client the attorneys' fees he incurred in attempting to disqualify respondent from representing his wife. Four members of the Board dissented from the finding that respondent violated DR 4-101(B)(3), but concurred in the proposed sanction based on the violation of DR 1-102(A)(7).
Respondent appeals, raising a number of procedural issues and arguing that the facts do not support the violation of any disciplinary rule. We begin with consideration of the merits.
The Vermont constitution gives this Court "disciplinary authority concerning all judicial officers and attorneys at law in the State." Vt. Const. ch. II, ยง 30. In assisting the Court with judicial conduct proceedings, the Board collects facts and advises the Court of its findings. See In re Hill, 152 Vt. 548, 555, 568 A.2d 361, 365 (1989). Although the Board's recommendations are shown "deference," their recommendations are not binding on this Court, and we have the final decision concerning discipline. In re Berk, 157 Vt. 524, 528, 602 A.2d 946, 948 (1991); see also In re Harrington, 134 Vt. 549, 552, 367 A.2d 161, 163 (1976).
We stress that this case deals with standards of professional regulation that are no longer in force. By adopting the American Bar Association, Model Rules of Professional Conduct, with appropriate amendments, we have as of the September 1, 1999 specifically stated the ethical rules applicable when a lawyer "side switches," that is, represents a present client against a former client. Rule 1.9(a) provides:
Rule 1.9. Conflict of Interest: Former Client
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
Even before the adoption of the model rules, we have applied its standard to d
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