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In re Gadbois9/21/2001
ons (1).
This disciplinary rule states the classic formulation of the prohibition of accepting a client who has a conflict of interest with a present client. By its terms, it requires the presence of two clients or potential clients. It does not apply where the conflict is with a former client who is no longer a client of the lawyer. See Adoption of Erica, 686 N.E.2d 967, 971 (Mass. 1997) (decided under identical provision of Massachusetts Code of Professional Responsibility).
Numerous commentators have discussed the omission of a former client conflict rule from the Code of Professional Responsibility. See C. Wolfram, Modern Legal Ethics ยง 7.4.2, at 363; C. Wolfram, Former Client Conflicts, 10 Geo. J. Legal Ethics 677, 678 (1997); Morgan, Conflicts of Interests and the Former Client in the Model Rules of Professional Conduct, 1980 A.B.F. Res. J. 993, 995. Indeed, the repair of that omission is one of the reasons why the American Bar Association adopted the Model Rules of Professional Conduct as a replacement for the Code. The absence of a former client conflict rule has not deterred courts from adopting broad prophylactic disqualification rules to prevent the misuse of confidential information and the appearance of impropriety. See generally Comment, Developments in the Law of Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1131-33 (1981). In creating such rules, the courts can protect the administration of justice irrespective of the narrow drafting of the lawyer disciplinary rules. Thus, in fashioning a disqualification rule, it was natural for us to look to the ethical considerations that accompanied the Code of Professional Responsibility, new statements of ethical responsibilities contained in such documents as the Model Rules and The Restatement (Third) of the Law Governing Lawyers (1998) and the appearance of impropriety. See Code of Prof'l Responsibility, Canon 9 (A Lawyer Should Avoid Even the Appearance of Professional Impropriety). The Board engaged in this kind of analysis in this case.
But in determining whether to discipline a lawyer under the Code of Professional Responsibility, we must find the lawyer committed "misconduct," which is defined in DR 1-102(A) as violation of a disciplinary rule or other specified misconduct. See A.O. 9, Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program, Rule 7(A); cf. In re Powell, 533 N.E.2d 831, 836 (Ill. 1989) (Canon 9 statement that a lawyer should avoid even an appearance of impropriety is not a disciplinary rule and cannot be used as independent grounds for discipline); Wolfram, supra, 10 Geo. J. Legal Ethics at 686 n.35. For the reasons stated above, we can not find breach of a disciplinary rule. We must, then, find another source of "misconduct" as specified in the Code. The Board found such source was DR 1-102(A)(7), a catchall provision that defines misconduct as follows:
DR 1-102. Misconduct.
(A) A lawyer shall not:
(7) Engage in any other conduct that adversely reflects on the lawyer's fitness to practice law. Code of Prof'l Responsibility DR 1-102(A)(7).
Although citations to this section appear in a number of Board decisions approved by this Court, usually as an alternative source of a finding of misconduct, see, e.g., In re Wysolmerski, 167 Vt. 562, 562, 702 A.2d 73, 74 (1997) (mem.) (attorney violated DR 1-102(A)(7) when he lied to clients about status of cases, failed to make filings, and failed to forward settlement offers to clients), we have had occasion to consider its scope in only a few contested proceedings. In In re Rosenfeld, 157 Vt. 537, 544, 601 A.2d 972, 976 (1991), we upheld a Board
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