Vermont Rules of Professional Conduct

COMMENTS

Comment - Scope

Reporter's Note

The Model Rules Scope Note has been revised to reflect more accurately the relationship between the rules and substantive law. The rules as adopted by the Supreme Court under its inherent power over the legal profession are intended only as a guide to conduct and a basis for discipline. Nevertheless, the Court in an adversary proceeding could hold that the rules do set forth standards of civil liability. See Estate of Kelley v. Moguls, Inc., 160 Vt. 531, 632 A.2d 360 (1993); cf. In re Vermont Electric Power Producers, 165 Vt. 282, 683 A.2d 716 (1996). Moreover, under general principles of tort law, violation of a rule may be prima facie evidence of malpractice, and the rules are presumably admissible as evidence of the standard of care in a malpractice action. See Bacon v. Lascelles, 165 Vt. 214, 678 A.2d 902 (1996); Smith v. Blow & Cote, 124 Vt. 64, 196 A.2d 489 (1963). Conversely, the courts in procedural or transactional contexts may fashion and apply pragmatic standards for assessing the conduct of lawyers that are designed to effectuate the purposes of the body of law involved. These standards may be less onerous than those of the rules, as in the tests for vicarious disqualification that may be applied on a motion to disqualify, or more onerous, as in the case of obligations to disclose client information that may be imposed by criminal or tort law. See In re Vermont Electric Power Producers, supra; cf. Peck v. Counseling Service, 146 Vt. 61, 499 A.2d 422 (1985).