Order Promulgating Emergency Amendments to Rule 79.2(c) of the Vermont Rules of Civil Procedure and Rule 35(c) of the Vermont Rules of Appellate Procedure

This emergency order was promulgated on September 4, 2019; effective immediately.

V.R.C.P. 79.2 was amended effective September 3, 2019. That amendment added a restriction on use of devices in a courthouse by prohibiting any person from recording or transmitting the image or sound of an individual outside a courtroom without express consent. The prohibition was designed to prevent recording of juveniles, jurors, and participants in confidential proceedings from being recorded in public areas of the courthouse and to prevent the public from using recording as a harassment tool against others attending obligatory court hearings. The emergency amendment allows registered media to visually and orally record and transmit in the courthouse, consistent with the distinction made elsewhere in the rules. The restriction on communication with a sequestered witness is preserved. The media are precluded from recording or transmitting images or sound of parties and witnesses in confidential proceedings in areas immediately adjacent to the courtroom. Nonmedia are still precluded from recording or transmitting without express consent.

V.R.A.P. 35 was amended effective September 3, 2019. That amendment added a restriction on use of devices in a courthouse by prohibiting any person from recording or transmitting the image or sound of an individual outside a courtroom without express consent. The prohibition was designed to prevent individuals from using recording as a harassment tool against others attending obligatory court hearings. The emergency amendment eliminates the restriction on recording and transmitting in the courthouse and allows use in the courthouse that is nondisruptive. Disruptive uses include using a device to harass or intimidate another person. There is no distinction between media and nonmedia in the appellate rule, unlike the rule applicable in the superior court, because, among other reasons, there are no witnesses or jurors at the Supreme Court.

Comments on these emergency amendments should be sent by November 08, 2019, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

Order Abrogating Administrative Order No. 10 and Promulgating the Vermont Code of Judicial Conduct 2019

This order was promulgated on August 6, 2019; effective October 7, 2019.

The Vermont Code of Judicial Conduct 2019 (hereinafter Vermont Code 2019) replaces and significantly changes the Vermont Code of Judicial Conduct promulgated by the Vermont Supreme Court in 1994 as Administrative Order No. 10 and subsequently amended (hereinafter Vermont Code 1994).

Vermont Code 2019 adopts the format and substantive provisions of ABA Code 2007, with necessary or appropriate Vermont variations. The purpose is to assure that Vermont judges will continue to be governed by principles of conduct that are substantially uniform with those applicable in other jurisdictions. While much of the substance of the former Code remains in effect, the revisions also clarify and expand many provisions in light of problems in application or changing conditions.

Order Promulgating Amendments to the Comments to Rule 1.1 of the Vermont Rules of Professional Conduct

This order was promulgated on July 9, 2019; effective September 9, 2019.

These amendments grew out of the work of the Vermont Commission on the Well-Being of the Legal Profession. The Commission was created in response to The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, a report issued by the National Task Force on Lawyer Well-Being. The amendment recognizes that a lawyer’s mental, emotional, and physical well-being may impact a lawyer’s ability to practice law. The amendment is intended to remind lawyers that their behavioral health may impact clients and the administration of justice, and to encourage lawyers to employ preventive strategies and self-care.

Order Promulgating Amendments to Rule 41 of the Vermont Rules of Civil Procedure

This order was promulgated on July 9, 2019; effective September 9, 2019.

Rule 41(a) and (b) are reorganized and amended at the request of the Civil Division Oversight Committee to conform to current practice and to eliminate outdated terminology.

Rule 41(a)(1) as amended continues to allow an action to be dismissed without order of court if a notice of voluntary dismissal is filed at any time before an answer or motion for summary judgment has been filed. The addition of “claim” makes clear that, as now provided in new paragraph (a)(5), one or more claims that have been joined in a single action may be dismissed without dismissal of the entire action.

Other provisions of former paragraph (a)(1) have been separated for clarity and set forth in new paragraphs (a)(2)-(a)(6).

Former Rule 41(b)(1)(i), providing for involuntary dismissal of an action on a trial list that has been pending more than two years, has been deleted. Former subparagraphs (b)(ii) and (iii) have been renumbered as (i) and (ii) with language clarifications. Their time periods have been shortened and made uniform to allow more expeditious elimination of stale actions. Language has been added in (b)(ii) to make clear that the shorter time periods may be extended by the court and that dismissal may be entered against defendants who have not been served, leaving the action pending against those who have been served.

Order Promulgating Rule 23(g) of the Vermont Rules of Civil Procedure

This Order was promulgated on June 13, 2019; effective August 15, 2019.

New Rule 23(g) provides for the disbursement of residual funds that remain after satisfaction of all claims under a class action judgment or settlement. 

Order Promulgating Amendments to Rule 24 of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on June 13, 2019; effective August 15, 2019.

Amended Rule 24 allows a legal intern, who is admitted in another U.S. jurisdiction, to appear in court without the presence of the supervising attorney and to sign documents in connection with the pending matter without the co-signature of the supervising attorney. This amendment essentially gives such legal interns the same authority as that given to nonresident attorneys admitted pro hac vice under Administrative Order No. 41, but without the need to submit a pro hac vice application and fee for each case in which the legal intern wishes to appear. In doing so, the amendment aims to reduce administrative, staffing, and financial obstacles that may otherwise prevent qualified legal interns, especially those working for state agencies, from appearing as legal counsel.

Order Adding Rule 39 to the Vermont Rules of Probate Procedure

This Order was promulgated on June 13, 2019; effective August 15, 2019.

New Rule 39 allows expedited proceedings in cases that potentially may be appealed de novo to the civil division. Under the amendment, if both parties have appeared, the judge may make a determination on the merits without swearing-in the parties if the facts as represented by them on the record are undisputed and no party objects.

Order Promulgating Amendments to Rule 3 of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on May 1, 2019; effective immediately.

The amendment to Rule 3 increases the number of Examiners from nine to eleven by adding two attorney members and increasing the number of Associate Examiners from seven to eight to facilitate grading the additional questions contained in the Uniform Bar Examination. The number of Examiners necessary to comprise a quorum has been increased accordingly.

Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure, and Rule 79.2 of the Vermont Rules of Probate Procedure, and Abrogating Vermont Supreme Court Administrative Directive No. 28

This Order was promulgated on May 1, 2019; effective September 3, 2019.

The rule was developed by a special committee composed of judges, court administrators, members of the Supreme Court’s procedural rules committees, and representatives of the media. The special committee’s draft was previously sent out for public comment, discussed by each of the procedural rules committees, and considered at a public hearing before a final version was recommended to the Supreme Court for promulgation. The Supreme Court made further alterations and sent the proposal out for comment a second time.

The rule governs both possession and use of recording and transmitting devices. It defines terms that are essential to the operation of the rule. Rule 79.2(c) broadly provides that a device may be used nondisruptively anywhere in a courthouse.

Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a courtroom. The rule, supplemented by Administrative Order No. 46, lays out a scheme for registration of media and their representatives entitling them to use devices to record and transmit courtroom proceedings. The rule provides that participants may use devices in the courtroom with some restrictions. The rule allows nonparticipants to possess devices in the courtroom, but to use them only in limited circumstances. Devices must be turned off or in silent mode except during nonevidentiary hearings when the jury or jury pool is not present. The rule contains provisions applicable to jurors.

Rule 79.2(e) sets limits designed both to protect the decorum and the necessary confidentiality of certain proceedings. The rule allows limits on use but contains a presumption in favor of media access. 

Rule 79.2(f) states that the court may waive any of the limitations imposed by the rule on request for good cause and subject to any necessary or appropriate restrictions.

Former rules V.R.Cr.P. 53 and V.R.P.P. 79.2 are abrogated and replaced with a statement making the civil rule applicable to proceedings in the criminal and probate divisions. No change is made to V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3 so V.R.C.P. 79.2 will continue to apply to public proceedings in the family and environmental divisions.

Former Administrative Directive No. 28 is abrogated, which concerns use of electronic devices in a courtroom.

The new rules will not become effective until September 3, 2019 to allow time for educating court staff, members of the bar, members of the media, and the public on the provisions of the new rules. There is a short summary of the rule requirements linked below. The rule requires the Advisory Committees on the Rules of Civil Procedure, Rules of Criminal Procedure, Rules for Family Proceedings, and Rules of Probate Procedure to review the operation of the new rules and report back to the Court by September 7, 2021. The new rules will expire on September 6, 2022 absent further order from the Court.

Order Abrogating and Replacing Rule 35 of the Vermont Rules of Appellate Procedure

This Order was promulgated on May 1, 2019; effective September 3, 2019.

Rule 35 is abrogated and replaced consistent with the simultaneous amendment to V.R.C.P. 79.2. See Reporter’s Notes to V.R.C.P. 79.2.

Rule 35(b) provides definitions for terms used throughout the rule. These definitions are the same as those provided in V.R.C.P. 79.2(b) except that there is an added definition for “Chief Justice” and no definition for “juror.” 

Under Rule 35(c) any person is authorized to possess any device in a courthouse and use it in a nondisruptive manner except outside the courtroom, no person can record or transmit images or sound of an individual without express consent.

Rule 35(d) addresses use inside a courtroom. The rule allows registered media, participants, and nonparticipants to possess and use devices in the courtroom, but the devices cannot be used to communicate orally and may not make distracting sounds.  Media can record and transmit video and audio.  There are limits on the number and position of devices for video recording and transmission.  The use for the Supreme Court is broader than the use allowed in the superior court because there are no witnesses or juries at the Supreme Court.

Rule 35(e) sets limits on recording and transmission. Under (e)(1), there are limits on video and audio recording to ensure confidentiality of communications between members of the Court, between co-counsel, and between attorney and client. The Court is authorized in (e)(2) to prohibit, terminate, limit, or postpone recording or transmitting of a proceeding based on several factors.

Order Promulgating Administrative Order No. 46

This Order was promulgated on May 1, 2019; effective September 3, 2019.

Administrative Order 46 provides the administrative implementation and performance standards for recording and transmitting devices as set forth in V.R.A.P. 35 and V.R.C.P. 79.2 and related rules.  The administrative directive provides the processes for media registration and for creating a policy for each courtroom on media use and placement of equipment.

Order Promulgating Amendments to V.R.C.P. 26(b)(A)(i)

This Order was promulgated on May 1, 2019; effective July 1, 2019.

The amendment to Rule 26(b)(5)(A)(i) adapts the language of F.R.C.P. 26(a)(2)(A) for the provision of the Vermont Rule identifying expert witnesses whose identity must be disclosed in response to an interrogatory. The amended rule applies to “each person” who may be used at trial to present expert testimony under Vermont Rules of Evidence 702, 703, and 705. To remove uncertainty regarding whether this requirement applies to witnesses whose testimony falls within those Evidence Rules but who were not specially retained to develop their opinions, the proposed amendment makes clear that Rule 26(b)(5) applies “whether or not the witness may also testify from personal knowledge as to any fact in issue in the case.”

Order Promulgating Amendments to the Vermont Rules of Civil Procedure, the Vermont Rules for Family Proceedings, and the Vermont Rules of Probate Procedure

This Order was promulgated on May 1, 2019; effective August 5, 2019.

The addition of V.R.C.P. 43.1 provides a uniform procedure and standards for video or audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in civil actions and in the civil division of the superior court.  The rule sets the terms on which video or audio conferencing may be employed, including time lines and factors to be considered.  The intent is to favor the use of video or audio conferencing when it will advance disposition of a proceeding as long as technical standards are satisfied and there is no countervailing circumstance in the particular situation.

The amendment to V.R.C.P. 43(a) reflects the fact that new Rule 43.1 and simultaneous amendments to the family and probate rules, permit testimony to be presented by video or audio conference in appropriate circumstances.

Rule 43.1 also applies so far as applicable in small claims actions by virtue of V.R.S.C.P. 6(a) and 13 and in the Environmental Division to the extent provided in V.R.E.C.P. 3, 4(a), and 5(a)(2). The simultaneous amendment to V.R.F.P. 17 makes the rule applicable in family division proceedings, other than juvenile proceedings under V.R.F.P. 1, subject to specific provisions for certain statutory mental-health and guardianship proceedings.

The amendment to V.R.P.P. 43(b) reflects the addition of new V.R.P.P. 43.1, promulgated simultaneously, which permits testimony to be presented by video or audio conference in appropriate circumstances.  New V.R.P.P. 43.1 basically adopts the procedures of V.R.C.P. 43.1 with minor changes in terminology and timing to better reflect probate practice.

Order Promulgating Administrative Order No. 47

This Order was promulgated on May 1, 2019; effective August 5, 2019.

Administrative Order No. 47 is adopted to implement V.R.P.P. 43.1 and V.R.C.P. 43.1 and related rules that are simultaneously promulgated to provide for video and audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in actions in the civil, environmental, family, and probate divisions of the superior court. See V.R.C.P. 43.1(e), V.R.P.P. 43.1 and Reporter’s Notes to simultaneous adoption of V.R.C.P. 43.1, and simultaneous amendments of V.R.F.P. 17 and V.R.P.P. 43(b). The technical standards are adopted by Administrative Order rather than by Rule to permit more rapid and flexible change as necessary to take advantage of changing technological capabilities.

Sections 1(a)-(c) of the order require that, for video conferencing to be used, both remote participants and those in the courtroom must have visual and aural access to all aspects of the proceedings comparable to that which they would have if the entire proceeding was occurring, and all participants were present, in the courtroom. Sections 1(d)-(f) address the necessary capabilities that the video conference system to be used must have to ensure that those requirements are met. Section (1)(g) is intended to ensure that the use of video conference does not in any way diminish a remote party’s ability to communicate confidentially with counsel and to have timely access to any documentary material that may be necessary for full participation in the proceeding.

Sections 2(a)-(f) of the order are intended to adapt the provisions of Section 1 to the circumstances of audio conference and participation.

Order Abrogating and Replacing the Vermont Rules for Public Access to Court Records and Abrogating the Rules Governing Dissemination of Electronic Case Records

This Order was promulgated on May 1, 2019; effective July 1, 2019.

This order abrogates and replaces the Vermont Rules for Public Access to Court Records and abrogates the Rules Governing Dissemination of Electronic Case Records, which are incorporated into the new public access rules. The rules cover records in both physical and electronic form and their adoption is timed to coincide with the implementation of a new case-management system that will eventually support electronic filing and electronic case files in all dockets and all courts. In many parts, these rules retain the content of the former rules. In other parts, they amend the prior version or adopt entirely new content because of the shift to electronic case records.

Rule 1 contains a scope, purpose, and construction statement, explaining the joint responsibility of providing public access while protecting confidentiality. Rule 2 contains definitions. Rule 3 provides a general policy to grant access and delineates the custodian of records. Rule 4 provides the means of access to physical and electronic case and administrative records. Rule 5 sets out specific rights of access and includes an appendix listing the statutes and court rules providing specific rights of access. Rule 6 sets forth the exceptions to public access for case records, the inspection procedure, denial procedure, grievances, access during appeals, and access to statistical reports. The appendix to Rule 6 lists the statutes and court rules providing restrictions or prohibitions to public access. Rule 7 relates to filing of case records and states the responsibilities of the filer and the Judiciary. Rule 8 is about administrative records. Rule 9 sets out exceptions to the general access policy and contains the method and standards for granting access, sealing, or redacting records. Rules 10-13 are adopted from the Rules Governing Dissemination of Electronic Case Records. They contain provisions on electronic-case-record compilations, electronic-case-record reports, and electronic-data-dissemination contracts.

Order Promulgating Amendment to Rule 18(d) of the Vermont Rules for Family Proceedings

This Order was promulgated on February 4, 2019; effective April 8, 2019.

Rule 18(d)(1) is amended to clarify the process for appointment of a mediator when appointment has been ordered under subdivision (b). Under subparagraph (A), represented parties may choose the mediator. Under subparagraph (B), if the parties do not agree on a choice, or one or more of them is self-represented, the parties and the court may agree on a mediator from the Family Division Mediation Program’s list of mediators. If the parties cannot agree on an individual, the court may appoint a mediator from the list. If no mediator from the list is available, the court may appoint a mediator whose credentials are at least comparable to those for inclusion on the list. Those credentials include domestic-violence training.

Order Amending Rule 902 to the Vermont Rules of Evidence

This Order was promulgated on January 7, 2019; effective March 11, 2019.

The addition of Rule 902(13) reflects the enactment of 12 V.S.A. § 1913, a statute pertaining to the admissibility of evidence contained in blockchain records. Rule 902(13) mirrors the language and conditions set forth in § 1913(b)(1), a section declaring that blockchain records are self-authenticating.

Order Adding Rule 3(e) and Amending Rule 5(f) of the Vermont Rules of Probate Procedure

This Order was promulgated November 5, 2018; effective January 7, 2019.

Rule 3(e) is added to provide a “prisoner’s mailbox” procedure for the filing of a petition in a probate proceeding by an inmate confined in an institution. The amended rule is virtually identical to V.R.A.P. 4(f), adopted effective March 13, 2017, and V.R.C.P. 3(b), adopted effective August 13, 2018.

Rule 5(f) is redesignated as Rule 5(f)(1) and Rule 5(f)(2) is added to provide a “prisoner’s mailbox” procedure for the filing of documents after the petition in a probate proceeding by an inmate confined in an institution. The provision is virtually identical to the simultaneously added V.R.P.P. 3(e) providing the procedure for inmate filing of a petition. It is also substantially identical to V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C), promulgated effective August 13, 2018.

Order Promulgating Amendments to Rule 4(a) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated November 5, 2018; effective January 7, 2019.

Rule 4(a) is revised to add two members to the Character and Fitness Committee, one attorney and one nonattorney. This change is being made to allow for more efficient processing of character and fitness report reviews during high-need times and for more members to be available for three-member panels. Because the overall size of the Board is increased from five to seven, Rule 4(a)(7) is revised to increase the quorum requirement from three to four.

Order Promulgating Amendments to Rule 26(b) of the Vermont Rules of Civil Procedure

This Order was promulgated on October 9, 2018; effective December 10, 2018.

The amendment corrects internal cross references to provisions of Rule 26(b) that were not corrected when the rule was amended by order of July 14, effective September 18, 2017.

Order Promulgating Amendments to Rule 1.1 of the Vermont Rules of Professional Conduct, Comments [6]-[8]

This Order was promulgated October 9, 2018; effective December 10, 2018.

The amendments track the ABA Ethics 20/20 changes to Model Rule 1.1 and its comments. Comments [6] and [7] are added to address the phenomenon of “outsourcing” work by lawyers and clarify how the duty of competence interrelates to such practices. Comment [6] is renumbered as Comment [8] and clarifies that the duty of competence includes having a general understanding of technology and its potential impact on client matters.

Order Promulgating Amendments to Rule 79.1(e) of the Vermont Rules of Civil Procedure, Rule 15(e) of the Vermont Rules for Family Proceedings, Rule 79.1(d) of the Vermont Rules of Probate Procedure, and Rule 45.1(d) of the Vermont Rules of Appellate Procedure

This Order was promulgated September 5, 2018; effective November 5, 2018. The amendments conform the rules with general revisions of Administrative Order No. 41, governing Licensing of Attorneys, effective May 15, 2017. In the revision and restyling of A.O. 41, former § 13, Admission Pro Hac Vice, is now designated as § 16 of A.O. 41.

Emergency Order Promulgating Amendment to Rule 3(k) of the Vermont Rules of Criminal Procedure

This Emergency Order was promulgated September 5, 2018; effective immediately.

Rule 3(k) was amended per 2017, No. 164, § 2 (Adj. Sess.) (effective July 1, 2018). The revision added provision for a prosecuting attorney, or a law enforcement officer, to contact a judicial officer for determination of temporary release following arrest; formerly, the rule had provided that a law enforcement officer was to make that contact. In addition, the enactment added that either the law enforcement officer or prosecuting attorney “shall provide the judicial officer with the information and affidavit or sworn statement required by Rule 4(a) of these rules.” The amended rule has spawned differences in interpretation over the meaning of “information” in the list of items required to be presented to the judicial officer for purposes of determining of temporary release.

The present emergency amendment provides clarification consistent with the purposes and intent of 2017, No. 164 (Adj. Sess.). The present amendment deletes the reference in the legislatively enacted amendment to “the information” (i.e., a charging document). The amendment maintains the mandate of the legislative enactment that an affidavit or sworn statement, consistent with Rule 4(a), be prepared and provided to the judicial officer, to enable an informed determination as to temporary release pending Rule 5 Initial Appearance. In addition, the amendment requires that the affidavit or sworn statement must include reference to the prosecuting attorney’s assessment of the offense(s) for which the defendant will be charged for purposes of determination of temporary release.

Comments on this emergency amendment should be sent by November 5, 2018, to Honorable Thomas Zonay, Chair of the Committee on the Rules of Criminal Procedure, at the following address:

Honorable Thomas A. Zonay, Chair
Advisory Committee on Rules of Criminal Procedure
Vermont Superior Court
Rutland Criminal Family Unit
9 Merchants Row
Rutland, VT 05701
Thomas.Zonay@vermont.gov

The Advisory Committee will review any comments received and advise the Court whether the amendments should be revised or made permanent.

Order Promulgating Amendments to Rule 23(d) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendment to Rule 23(d) is in response to the Supreme Court’s decision in State v. Breed, where the Court outlined the better practice when there may be a delay after the jury has been chosen but before trial. The rule is divided into three paragraphs. Paragraph (d)(1) requires that consent to a delay of commencement of trial must be by a signed writing filed with the court or in open court. Paragraph (d)(2) requires that after a delay of more than 24 hours, the court must provide an appropriate instruction. Paragraph (d)(3) clarifies that parties are entitled to supplemental voir dire on issues arising from the separation but must initiate a request.

Order Promulgating Amendments to Rule 17(a) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018.

The amendment Rule 17(a) expands the categories of persons who are authorized to issue subpoenas in criminal proceedings, either for attendance of witnesses or for production of documentary evidence and objects. This subdivision was amended effective February 20, 2017 to clarify that a subpoena is provided by the clerk, but actually issued by a judicial officer, subject to certain notice of rights on the part of persons subject to subpoena to object thereto, and the procedures for doing so. The amendment provides that subpoenas in criminal cases may now be issued either by a judicial officer, a court clerk, or a member of the Vermont bar. The amendment is intended to facilitate issuance of subpoenas in criminal cases, consistent with a defendant’s Compulsory Process guarantees, subject to the existing provisions of the rule establishing protections for persons and records that are the subject of subpoenas. The amendment is also intended to establish greater conformity with V.R.C.P. 45(a)(3), which has long provided that subpoenas in civil proceedings may be issued by either a judicial officer, a court clerk, or an attorney.

Order Promulgating Amendments to Rule 42 of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendments to Rule 42, governing contempt process, reorganize and substantively amend the rule in three instances. A provision is added for notice to the defendant of the maximum penalty that may be imposed upon conviction. To facilitate appearance of counsel and assignment of counsel to represent the indigent defendant, a requirement is added to provide notice of the right to be represented by counsel and to make application for assignment of counsel. Specific provision is also made for the mode of appointment of a prosecuting attorney.

Order Promulgating Amendments to Rule 44.2(b) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendment to Rule 44.2(b) revises the rule in response to general revisions of Administrative Order No. 41, governing Licensing of Attorneys, effective May 15, 2017. Rule 44.2(b)(2), which formerly governed admission and practice of nonresident attorneys pending completion of law office study, or after such completion pending admission to the bar, is deleted as no longer necessary in view of A.O. 41’s abolition of the requirement of law office study as a condition of admission of attorneys to the Vermont bar.

Order Promulgating Amendments to Rules 3 and 5(e) of the Vermont Rules of Civil Procedure and Rule 25(a)(2)(C) of the Vermont Rules of Appellate Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018.

The amendment redesignates the present Rule 3 as Rule 3(a) and adds Rule 3(b) to provide a “prisoner mailbox” procedure for the filing of a complaint in a civil action by an inmate confined in an institution. The amendment is virtually identical to V.R.A.P. 4(f), adopted effective March 13, 2017.

Simultaneous amendments adding V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C) establish an identical procedure for inmate filing of documents after the complaint that are required to be filed by V.R.C.P. 5 and papers after the notice of appeal required to be filed by V.R.A.P. 25.

Order Promulgating Amendments to Rule 45 of the Vermont Rules of Civil Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendments to Rule 45 were made at the request of the Civil Division Oversight Committee to conform the rule to current practice and to assure uniformity among the clerks’ offices.

The amendment to Rule 45(a)(3) deletes “notary public” from the list of those empowered to issue a subpoena. Notaries do not have express power to issue subpoenas. See 24 V.S.A. § 445.

The amendment to Rule 45(a)(4) simplifies language and provides for prior or simultaneous service on the parties to avoid warning the witness before the parties can act. The amendment to Rule 45(b)(1) adds the requirement that witness fees be tendered with the subpoena to avoid issues of enforcement that might arise in the event of later nonpayment.
       
The amendment to Rule 45(f)(3)(A) clarifies the application of the interstate deposition and discovery provisions of the rule to attorneys not admitted in Vermont and unrepresented litigants.
       
The amendment to Rule 45(f)(3)(B) incorporates the provisions of former Rule 45(f)(6), substituting “motion” for “application” for consistency with the general provisions of the rules and adding the requirement that the practice on such motions is limited to Vermont-admitted attorneys because they are adversary proceedings.

The amendment to Rule 45(f)(3)(C) (formerly (B)) states that when a party submits a foreign subpoena judicial approval is now required before the clerk signs it. This provision and the amendment to paragraph Rule 45(f)(4) spell out that the clerk is to deliver the signed subpoena to the requesting party, who is responsible for service and payment of the witness fee. Former subparagraph (C) is redesignated (D).

Former Rule 45(f)(6) is deleted because it is now incorporated in Rule 45(f)(3)(B).

Order Promulgating Amendments to Rules 7(c), 9(b)(1), 11, 12(a), and 13(b) and (e) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated June 13, 2018; August 13, 2018.

The amendment to Rule 7(c) allows for all institutions of higher education whose accreditor has been approved by the U.S. Department of Education (DOE) to satisfy the law office study (LOS) educational requirement. The amendment to Rule 7(c) also allows an applicant with an undergraduate degree from a foreign jurisdiction to satisfy the education requirement, provided the applicant can establish that such degree is equivalent to a bachelor’s degree from a DOE-approved institution.

The amendments to Rules 9(b)(1), 11, and 13(e) ensure consistency and clarity with regards to the permitted age of UBE and MPRE scores. The amendment to Rule 9(b)(1) clarifies that applicants must be active attorneys to waive the five-year limitation and that Board approval is not necessary for such a waiver. Also, the amendment to Rule 9(b)(1) allows for an extension to the time limitation for good cause.

The amendment to Rule 11 clarifies that the triggering date for the time limit for the age of the MPRE score is the date the applicant achieves a passing UBE score, consistent with the prior Board’s Notes. Also, the amendment to Rule 11 allows for an extension to the time limitation for good cause.

The amendment to Rule 12(a)(1) makes the time period to take the first-year CLE courses for admittees by examination consistent with the corresponding time period for admittees without examination in Rule 15. The amendment to Rule 12(a)(2) clarifies that for good cause the Board can grant an extension to the time limit for satisfying the first-year mentorship requirement.

The amendment to Rule 13(e) imposes a one-year outer limit for the MPRE score, consistent with the outer limit in Rule 11, and allows for an extension to the time limitation for good cause. The amendment to Rule 13(b) specifically permits concurrent applications for admission by transferred UBE score, meaning that an applicant can apply to sit for the UBE in a UBE jurisdiction other than Vermont and at the same time apply for admission by transferred UBE score to the Vermont bar, although the UBE score has not yet been earned.

Order Promulgating Amendment to §§ 1 and 2 of Administrative Order No. 40
(ADVISORY COMMITTEE ON THE RULES OF PUBLIC ACCESS TO COURT RECORDS)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 1 update some language by deleting references to “District Court Judges,” and clarify that the term limit does not apply to the designee of the State Archivist or to the chair of the relevant VBA committee. The language in § 2 regarding compensation for committee members has been updated.

Order Promulgating Amendment to §§ 1 and 2 of Administrative Order No. 29
(ADVISORY COMMITTEE ON RULES FOR FAMILY PROCEEDINGS)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 1 update some language by changing “trial court judges” to “superior judges” and “family court magistrate” to “magistrate,” and clarify that the term limit does not apply to the designees or to the chair of the relevant VBA committee. The language in § 2 regarding compensation for committee members has been updated.

Order Promulgating Amendment to §§ 1 and 2 of Administrative Order No. 24
(ADVISORY COMMITTEE ON RULES OF PROBATE PROCEDURE)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 1 of Administrative Order No. 24 change “Probate Court Judges” to “Probate Judges,” and clarify that the term limit does not apply to the chair of the relevant VBA committee. The language in § 2 regarding compensation for committee members is updated

Order Promulgating Amendment to §§ 1 and 2 of Administrative Order No. 23
(ADVISORY COMMITTEE ON THE RULES OF EVIDENCE)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 1 of Administrative Order No. 23 delete references to “District Court” and clarify that the term limit does not apply to the chair of the relevant VBA committee. The language in § 2 regarding compensation for committee members has been updated.

Order Promulgating Amendment to §§ 2 and 3 of Administrative Order No. 20
(ADVISORY COMMITTEE ON THE RULES OF CRIMINAL PROCEDURE)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 2 of Administrative Order 20 delete references to “District Court Judges” and “district court clerk.” Section 1 is amended to clarify that the term limit does not apply to the designees of the Attorney General and Defender General or to the chair of the relevant VBA committee. Language clarifying that if the Attorney General or Defender General is present at a committee, he or she may vote is deleted because that power is already granted to those individuals. It remains the case that the designee requires prior approval before being able to vote. The language in § 3 regarding compensation for committee members has been updated.

Order Promulgating Amendment to §§ 2, 3, 4 and 6 of Administrative Order No. 17
(ADVISORY COMMITTEE ON THE RULES OF CIVIL PROCEDURE)

This Order was promulgated April 30, 2018; effective immediately. The amendments to §§ 2, 4 and 6 of Administrative Order 17 delete references to “District Court Judges” and “District Court Civil Rules” and clarify that the term limit does not apply to the chair of the relevant VBA committee. The language in § 3 regarding compensation for committee members has been updated.

Order Promulgating Amendment to § 10 of Administrative Order No. 41

This Order was promulgated April 30, 2018; effective July 2, 2018. The amendment to § 10 revises the rule to permit federal judges and magistrates to claim judicial status as well as authorizing the MCLE Board to grant judicial status to a justice, judge, or magistrate from another jurisdiction upon request and showing of good cause.

Order Continuing Addition of Rule 80.11 to the Vermont Rules of Civil Procedure

This Order was promulgated April 30, 2018; effective immediately. Rule 80.11 of the Vermont Rules of Civil Procedure added on June 15, 2016, and amended on July 11, 2016, has been continued, and the sunset date of August 16, 2019 set in the Court’s order of June 15, 2016 is void. The Advisory Committee on the Rules of Civil Procedure has been directed to continue to review the operation of this rule and to advise the Court not later than August 31, 2021, whether the rule should be further revised or made permanent. It the absence of further order, the rule will be void and of no further effect in any civil action commenced after August 31, 2022.

Order Promulgating Amendment to Rule 54(a) of the Vermont Rules of Criminal Procedure

This Order waspromulgated on February 5, 2018, effective April 9, 2018. The amendment to Rule 54(a)(2) comports with statutory amendments. 23 V.S.A. §§ 2201-2207, referred to in the former rule as the “Traffic Act,” were repealed per 2015, No. 47, § 38. The offenses and tickets formerly covered under the repealed statutes were placed under the jurisdiction of the Judicial Bureau and subject to enforcement under 4 V.S.A. Chapter 29, under procedural rules promulgated by the Supreme Court. See 4 V.S.A. § 1106(f). The rules governing Judicial Bureau proceedings are prescribed in V.R.C.P. 80.6. In consequence, references to proceedings under the “Traffic Act” in Rule 54(a)(2) have been deleted.

Order Promulgating Amendments to V.R.Pr.C. 1.7 and 1.8

This Order was promulgated on January 8, 2018, effective March 12, 2018. Rule 1.8(j) is added to prohibit sexual relations between a lawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced. Comment [17] is amended to clarify that the rule applies to all sexual relationships formed after the commencement of the professional client-lawyer relationship, including consensual sexual relationships and sexual relationships in which there is no prejudice to the client’s interests in the matter that is the subject of the professional relationship. Comment [18] is added to provide guidance on sexual relationships that predate the commencement of the client-lawyer relationship.

Comment [12] to Rule 1.7 is deleted due to the simultaneous amendment to Rule 1.8(j), which explicitly precludes a lawyer from having a sexual relationship with a client unless a consensual sexual relationship existed when the client-lawyer relationship began.

Order Promulgating Amendment to Administrative Order No. 29

This Order was promulgated on December 20, 2017, effective immediately. The amendment increases the membership on the Advisory Committee on Rules for Family Proceedings from sixteen members to seventeen members and clarifies the language regarding the Superior Court clerk appointment.

Emergency Promulgation Order Amending V.R.E.C.P. 4(b)

This Emergency Order was promulgated on December 6, 2017, effective January 1, 2018. The amendment to Rule 4(b), as amended September 20, 2017, effective January 1, 2018, is further amended. The time period in Rule 4(b) for the Attorney General to move the court to vacate an order was amended from 10 days to 14 days in keeping with the day-is-a-day amendments to V.R.C.P. 6. The 10-day time period, however, comes directly from a statute. 10 V.S.A. § 8007(c). To avoid any conflict between the rule and the statute, the rule is amended back to the former time period of 10 days. As of January 1, 2018, the 10-day period will be counted using the day-is-a-day counting system.

Promulgation Order for V.R.Cr.P. 5(e)

This Order was promulgated on October 17, 2017, effective December 18, 2017. The amendments to Rule 5 revise the rule to conform to amendments to 13 V.S.A. § 7554c, which relates to pretrial risk assessments and needs screenings. Under the amendments, the results of the pretrial risk assessment and needs screenings are provided directly to defendants and their attorneys, the prosecutors, and the court. The amendment also clarifies that while the court may order a defendant to meet with a pretrial services coordinator and participate in a needs screening, to participate in a clinical assessment by a substance abuse or mental health treatment provide and follow the recommendations of the provider, and to otherwise participate in pretrial services, such orders are deemed to be in addition to conditions of release authorized by law, and do not serve to limit the discretion of the court to impose conditions of release authorized under 13 V.S.A. § 7554.

Promulgation Order for V.R.Cr.P.11.1

This Order was promulgated on October 17, 2017, effective December 18, 2017. The amendments to Rule 11.1 to reflect changes necessitated by enactment of Act 133 of 2015 (Adj. Sess.), which expressly prescribes the consequences resulting from the court’s failure to provide the defendant with notice of collateral consequences. The amendment also clarifies that the rule is of application only to convictions for violation of 18 V.S.A. § 4230(a) and not for all offenses prescribed by § 4230.

Promulgation Order for A.O. 10, Application

This Order was promulgated on October 17, 2017, effective February 1, 2019. The amendment to section B(1) of the “Application of the Code of Judicial Conduct” removes the exemption for financial reporting for continuing part-time judges, which the Terminology section [3] defines as including “judges of probate and assistant judges.” The amendment will now require continuing part-time judges to submit a financial disclosure form to make their sources of income more transparent.  The rule change becomes effective February 1, 2019 to coincide with the beginning of the terms for part-time judges.

Promulgation Order for A.O. 10, Canon 4

This Order was promulgated on October 17, 2017, effective December 18, 2017. The amendment to Canon 4 § H(2) clarifies that in addition to reporting compensation received as a result of extra-judicial activities, a judge is required to report rental income.  The amendment to Canon 4 § I adds a title and subdivision (1), which requires a judge to disclose any investment over $5,000 in an entity appearing as a party before the judge.

Promulgation Order Making V.R.A.P. 11(b)(3) Permanent

This Order was promulgated on October 17, 2017, effective December 18, 2017. The emergency amendment to Rule 11(b)(3) promulgated on March 9, 2015, effective April 10, 2015, has been made permanent. The emergency amendment had been made as part of the Supreme Court’s effort to obtain cost savings in the operations of the clerk’s offices in all courts by saving clerk time.

Promulgation Order for V.R.P.P. 47(d)

This Order was promulgated on October 17, 2017, effective December 18, 2017. The amendment conforms Rule 47(d) to current practice regarding recording of court proceedings, and deletes language that is unnecessary and inappropriate.

Emergency Promulgation Order for V.R.P.P. 52(b) and 60(c)

This emergency Order was promulgated on October 17, 2017, effective January 1, 2018. These emergency amendments make changes to the day-is-a-day order. It further amends Rule 52(b), as amended September 20, 2017, effective January 1, 2018, to provide a 14-day time period consistent with the basic purpose of the day-is-a-day amendments of the civil and probate rules rather than the 28 days adopted initially for consistency with the comparable provisions of the Federal Rules of Civil Procedure. The amendment to Rule 60(c), as amended September 20, 2017, effective January 1, 2018, is further amended to provide a 14-day time period consistent with the basic purpose of the day-is-a-day amendments of the Civil and Probate rules rather than the 28 days adopted initially for consistency with the comparable provisions of the Federal Rules of Civil Procedure. Both changes reflect the significant differences between probate and civil practice. Matters in probate court generally involve important personal concerns that could be adversely affected by the additional extension of the time for appeal resulting from the longer period. Moreover, there is less need in probate practice to be concerned with uniformity with the Federal Rules.

“Day is a Day” Amendments to Appellate, Civil, Criminal, Environmental, Family, Juror, MCLE, Probate, and Small Claims

These Orders were promulgated on September 20, 2017, effective January 1, 2018. The amendments to various rules adopt the “day is a day” rule, a simplified method of computing time periods adopted in 2009 amendments to the federal rules. Under the former rules, a period of 11 days or more was computed differently than a period of 10 days or less. The shorter time periods did not count intervening Saturdays, Sundays, or legal holidays. Under the amended rules, all deadlines are computed the same way no matter the length—all days, including intermediate Saturdays, Sundays, and legal holidays, are counted. If the period ends on a Saturday, Sunday, or legal holiday, the deadline falls on the next business day.

Because periods of 10 days or less would be shortened by the inclusion of intermediate Saturdays, Sundays, and legal holidays, the shorter time periods have been extended. Most time periods are changed to use multiples of 7 so that time periods will end on a week day. In general, the amendments change periods of 3 days to 5 days, 5 days to 7 days, 10 and 15 days to 14 days, 20 days to 21 days, 45 and 50 days to 42 and 49 days. Thirty-day time periods remain unchanged. Several 10-day time periods are enlarged to 28 days for consistency with the federal standard for motion practice.

The amendments to V.R.C.P. 6(e) and V.R.Cr.P. 45(e), providing an additional 3 days for actions required after service, adopt the simplified language of F.R.C.P. 6(d) and F.R.Cr.P. 45(c), as amended in 2005 and 2007, and follow the federal rule in effect until December 2016 by adding the additional 3 days after service by electronic means if permitted or required under V.R.C.P. 5(b)(4).

The amendments retain the language of the former rules making the computation provisions apply to a time period in “any applicable statute.” By Act 11 of 2017, the Legislature amended a number of statutory procedural time periods of 10 days to 14 days and of less than 10 days to be expressly “business days.” For consistency, the amendments add “business days” to time periods in rules that were taken from one of the amended statutes and a definition of “business day” is added.