Promulgation Order Amending Rule 807 of the Vermont Rules of Evidence

This Order was promulgated on November 7, 2022, effective January 9, 2023.

Rule 807 is amended to correct the constitutional deficiencies described by the Vermont Supreme Court in State v. Bergquist, 2019 VT 17, 210 Vt. 102, 211 A.3d 946, regarding when a witness can testify out of sight and hearing of a defendant. Subdivisions (c) and (f) are amended to ensure the Rule comports with the minimum constitutional standard set in Maryland v. Craig, 497 U.S. 836 (1990), as interpreted in Bergquist. To make the showing of necessity needed to justify testimony outside of a defendant’s presence, the State must show that the witness would be traumatized not by the courtroom or other aspects of providing testimony, but by the presence of the defendant (or by defendant’s image when subdivision (e) applies). The State must also show that the witness would suffer a level of emotional trauma that is more than mere nervousness, excitement, or some reluctance to testify.  

Subdivision (a) is amended to correct an unintended effect of an amendment made in 2015. The purpose of that amendment was to make the rule consistent with the Legislature’s efforts to eliminate offensive language from the Vermont Statutes. See 2013, No. 96 (Adj. Sess.) (eff. July 1, 2014), An Act Relating to Respectful Language in the Vermont Statutes Annotated. The amendment adopted the terms used in the statute to describe individuals with mental or intellectual disabilities and referred to the newly enacted statute for the definitions of those terms. However, the term “psychiatric disability” provided by 1 V.S.A. § 147 encompasses a wider arc of impairments than the original term used by the Rule, which was “mental illness,” as still defined in 18 V.S.A. § 7101(14). Thus, the language is amended to again refer to “mental illness” to prevent the expansion of a rule that was originally intended to be applied narrowly, given its impact on the right of confrontation.

 

Order Promulgating Addition of Rules 9.2 and 9.3 to the Vermont Rules of Civil Procedure

This Order was promulgated on September 13, 2022, effective October 1, 2022.

New Rules 9.2 and 9.3 provide special procedures in residential eviction proceedings and certain home foreclosures or replevin actions. The rules stem from requirements in Administrative Order No. 49 ¶¶ 21 and 22 related to eviction and foreclosure proceedings during the COVID-19 pandemic. The two rules contain provisions related to the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act and federal appropriations for Vermont Emergency Rental Assistance (VERAP) and Vermont Homeowner Assistance Program (VHAP) funds.

Rule 9.2 applies to all actions for eviction of a tenant from residential housing based solely or in part on nonpayment of rent. Rule 9.2(b) requires plaintiffs to declare compliance with the notice requirement of the CARES Act. Rule 9.2(c) pertains to VERAP, which will stop accepting new applications after September 30, 2022. Under the rule, when either party presents the court with evidence that the tenant has filed a VERAP application, the court may take appropriate action.

Rule 9.3 requires plaintiffs in covered foreclosure and replevin actions to serve homeowners with notice of the availability of VHAP funds. Under 9.3(c), if homeowner has applied for funds and so requests, there is an automatic stay.

Pursuant to the promulgation order, the Advisory Committee is to review the operation of these rules and to advise the Court when appropriate, but not later than July 1, 2023, whether the rules should be terminated in whole or in part, extended, revised, or made permanent.

 

Emergency Order Promulgating Amendments to Rules 6(19) and 9 of the Vermont Rules of Supreme Court for Disciplinary Control of Judges

This Emergency Order was promulgated on September 13, 2022, effective October 1, 2022.

Rule 6(19)(a) is amended to allow a complaint to be filed with the Chair of the Board by email. The complaint must be submitted as an attachment to the email and must be sent to the email for the Chair that is associated with the Board. Following the COVID-19 pandemic, the Board was authorized to conduct its business by email under Administrative Order 49, ¶ 15(c). This was an efficient and helpful means of communication and therefore has been incorporated into the permanent rules.

Rule 9 is amended to incorporate provisions related email filing and remote participation that were first implemented in response to the COVID-19 pandemic under Administrative Order 49, ¶ 15(c) and (d). Rule 9(1) is amended to provide that a judge’s answer may be filed by the same means as provided under 6(19)(a), which is simultaneously amended to include email. Rule 9(5) and (6) are amended to allow the Board to preside remotely or to allow or require remote participation pursuant to V.R.C.P. 43.1.

Comments on these emergency amendments should be sent by November 14, 2022, to Barbara Blackman, Chair, Judicial Conduct Board at JCB@rsclaw.com .

 

Order Promulgating the Addition of Rule 1.1 to the Vermont Rules for Family Proceedings

This Order was promulgated on September 13, 2022, effective November 14, 2022.

Rule 1.1 implements the provisions of Chapter 52A of Title 33, Youthful Offenders, 2017, No. 72 (Adj. Sess.). Section 7 of Act 72 directs the Vermont Supreme Court to consider the adoption of appropriate rules. For the most part, the provisions of Rule 1.1 track the procedural provisions outlined in statute. The Supreme Court’s Advisory Committee on Family Rules concluded that the consolidation of these provisions into a rule would enhance consistency of practice in youthful offender proceedings.

 

Promulgation Order Amending Rule 9(b) and (g)(1) of the Vermont Rules for Family Proceedings

This Order was promulgated on September 13, 2022, effective November 14, 2022.

The amendments to Rule 9(b) and (g)(1) add email addresses if available to the contact information that a litigant is required to file with the court

 

Promulgation Order Amending Rules 1.2, 1.6, 1.15A, 3.1, 4.4, 5.3, 5.5, 8.3, and 8.4 of the Vermont Rules of Professional Conduct

This Order was promulgated on September 13, 2022, effective November 14, 2022.

Under amended Rule 1.2(c), a lawyer that has not entered a limited appearance but provides assistance in drafting a document must advise the client to comply with any rules of the tribunal regarding participation by a lawyer in support of a self-represented litigant. A new comment clarifies that, while the client controls the objectives of a representation, a lawyer does not violate any professional duty to the client by agreeing, for instance, to extensions of time or by affording professional courtesy to opposing counsel, parties, and witnesses while pursuing a client’s objectives. An additional amendment to a comment clarifies that a lawyer may counsel a client regarding the validity, scope, and meaning of Title 7, chapters 31 thru 39, regarding cannabis regulation, so long as the lawyer abides by the existing requirement of advising the client regarding the potential consequences of the client’s conduct under related federal law and policy.

New paragraph 1.6(c)(3) clarifies that a lawyer does not violate Rule 1.6 by disclosing information relating to the representation of a client by making a confidential inquiry of bar counsel on matters related to that representation. Comment [11] is amended to conform to proposed new paragraph (c). An amendment to 1.6(c)(5) is added to track the ABA Model Rule and to allow lawyers to conduct limited conflict checks prior to and in the process of changing employment. New comments 16 and 17 address paragraph (c)(5).

Paragraph 1.6(d) reflects that the modern practice of law includes possession of information related to the representation of client in many forms, including information that is stored electronically or digitally, and therefore clarifies that V.R.Pr.C. 1.6 applies to the electronic transmission and storage of information relating to a representation, and makes explicit that the duty under Rule 1.6 is broader than avoiding affirmative disclosures of information relating to the representation of a client.

New V.R.Pr.C. 1.15A(b), regarding use of pooled interest-bearing trust accounts, provides additional protection to clients and third persons for whom lawyers hold funds in trust. New paragraphs (c) and (d) clarify that it is not solely a lawyer or law firm’s pooled interest-bearing trust accounts, more commonly referred to as “IOLTA accounts” or “client trust accounts,” that are subject to compliance reviews and audits. New comments [1] to [3] are added to explain the limited appropriate uses of client trust accounts.

The amendment to Rule 3.1 makes clear that a lawyer who is representing a client in a matter that could result in the client being placed on an order of hospitalization does not violate the rule by holding the State to its proof. The change conforms to the ABA Model Rule.

The amendment to Rule 4.4(b), regarding inadvertent receipt of data, replaces “document” with “information” and moves what was stated in comment [2] into the body of the rule, thereby clarifying a lawyer’s duties. Comment [4] is added to clarify that Rule 4.4(b) is limited to a lawyer’s ethical obligation. The rules of procedure might impose additional obligations or duties related to the receipt of documents or electronically stored information that were inadvertently produced.

The new comments [3] and [4] to V.R.Pr.C. 5.3 regarding nonlawyer assistants are taken from the ABA Model Rules of Professional Conduct. The comments address the fact that it has become increasingly common for lawyers to contract for services with persons and entities who are not employed by the lawyer or the lawyer’s firm, including vendors who store information related to the representation of a lawyer’s client. Lawyers must be mindful of the duty to ensure that nonlawyer assistants act in a way that comports with a lawyer’s professional obligations and responsibilities.

The addition of comment [22] to Rule 5.5, which concerns the unauthorized practice of law, addresses practice by lawyers working remotely. The comment indicates that lawyers who are not admitted in Vermont may practice remotely in other jurisdictions while physically present in Vermont if they comply with a list of restrictions, including not holding themselves out as being admitted in Vermont. The amendment is consistent with an ABA opinion on lawyers working remotely and the decisions of several other jurisdictions.

The amendment to comment [4] of Rule 8.3, regarding the reporting of misconduct, clarifies that inquiries of bar counsel are confidential and bar counsel is exempt from the reporting requirement of Rule 8.3 and must keep confidential all information related to inquiries and requests for guidance.

The amendment to Rule 8.4, which defines professional misconduct, conforms the rule with the ABA Model Rule and harmonizes Rule 8.4(b)’s definition of “serious crime” with the definition of “serious crime” that appears in Administrative Order 9, Rule 21(c).

 

Promulgation Order Amending V.R.S.C.P. 6 and V.R.C.P.80.6(n)

This Order was promulgated on September 13, 2022, effective October 1, 2022.

Small Claims Rule 6 is amended to incorporate provisions regarding remote hearings for small claims actions and for judicial bureau proceedings. See V.R.C.P. 80.6(d)(4) (making V.R.S.C.P. 6 applicable to judicial bureau proceedings). In response to health concerns related to the COVID-19 pandemic, the Supreme Court declared an emergency in March 2020 and issued Administrative Order 49 making temporary changes to court rules and operations. Under ¶ 5(a), A.O. 49 authorized remote participation by video or audio in the civil division. Under ¶ 5(c), A.O. 49 authorized the hearing officer in judicial proceedings to preside remotely and ordered other persons to participate by remote audio or video.

Remote hearings were very effective in the judicial bureau and the current amendments allow remote proceedings to continue. Existing 6(a) is divided into four paragraphs. New 6(a)(2)(A) provides that in a nonjury hearing, the court may preside remotely and require other persons to participate remotely by either audio or video. Participants can request an in-person hearing and the court can grant the motion based on its consideration of the relevant factors in V.R.C.P. 43.1. For trial by jury, Rule 6(a)(2)(B) incorporates the procedures in V.R.C.P. 43.1.

Rule 80.6 is amended in several places to correct statutory references and update terminology.

Rule 80.6(a), (i), and (m) are amended to remove reference to “district court” and replace it with “Criminal Division of the Superior Court” to reflect the statutory change made by 2009, No. 154 (Adj. Sess.), §§ 236, 238, codified at 4 V.S.A § 1107(a). Rule 80.6(c)(4) is amended to correct a statutory reference by substituting 24 V.S.A. § 1977(a) for 24 V.S.A. § 1979(c). Rule 80.6(i)(1) is amended to substitute the word “transmit” for “mail” in reference for how the judicial bureau clerk should send the notice of appeal to the Criminal Division to reflect the change to electronic case records. Rule 80.6(k) is deleted and reserved. The rule referred to municipal fine contempt proceedings filed by a municipality pursuant to 24 V.S.A. § 1981(d), which was repealed in 2012. 2011, No. 83 (Adj. Sess.), § 1. Rule 80.6(m) is amended in accord with a statutory change substituting “Chief Superior Judge” for “Administrative Judge.” Rule 80.6(n) is amended to add V.R.C.P. 43.1 to the list of civil rules that do not apply in judicial bureau proceedings. Remote hearings are covered by the provisions of Rule 6 of the Vermont Rules of Small Claims Procedure.

 

Emergency Order Promulgating Amendments to Rules 17(b) and 20(e)(3) of the Rules of Admission to the Bar of the Vermont Supreme Court

This Emergency Order was promulgated on September 13, 2022, effective October 1, 2022.

Rule 17(b) is amended to allow a hearing panel to preside remotely or to allow or require remote participation by others pursuant to Vermont Rule of Civil Procedure 43.1. Following the COVID-19 pandemic, remote hearings were authorized and encouraged under Administrative Order 49, ¶ 15(d). This practice was an effective method for participation and therefore remote participation is incorporated into the rules.

Rule 20(e)(3) is added to incorporate an interim measure taken during the COVID-19 pandemic to permit the oath of admission to be administered remotely in real time. Administrative Order 49, ¶ 15(e) allowed the oath to be administered remotely by video in real time. This procedure has been an efficient way to administer the oath without requiring Applicants to travel to the courthouse.

Comments on these emergency amendments should be sent by November 14, 2022, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel

Andrew.Strauss@vermont.gov

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures

This Order was promulgated on August 9, 2022. Many of the Order’s provisions are deleted, effective September 6, 2022, when permanent rules or policies go into effect.  The Order will otherwise remain in effect until September 30, 2022, to allow permanent rules to go into effect for the few remaining provisions.

The Vermont Supreme Court adopted Administrative Order 49 in March 2020, to amend procedures and adapt processes to protect public health while meeting its critical role in administering justice. Since then, AO 49 has been periodically amended (and considerably shortened) to reflect changing circumstances.  A number of the measures included in AO 49, particularly regarding remote hearings and email filings, have proven beneficial to court users. In conjunction with input from the public and from the legal community, the Court has undertaken a process of adopting policies and promulgating permanent rules, where appropriate, so that the remaining measures in AO 49 could either be phased out or incorporated in permanent rules.

Most of the now-remaining provisions in AO 49 will be deleted, effective September 6, 2022, when permanent rules or policies regarding those measures to be maintained will take effect.  Otherwise, only the provisions regarding remote hearings in the judicial bureau, oral arguments at the Supreme Court, notification requirements in foreclosure and eviction proceedings and Court committees, boards and commissions will remain in effect until September 30, 2022, to allow permanent rules pertaining to those matters to go into effect. Below is an explanation of the status of the AO 49 provisions.

Also, under simultaneously amended Administrative Order 3, the State Court Administrator will have authority to regulate court operations, including health and safety protocols. Administrative Directive TC-1, which will go into effect on September 6, 2022, includes new directives regarding those protocols. The new directives include a change in masking protocols; masks will be recommended but not required in public areas of courthouses. Judges will retain the discretion to require masks in their courtrooms, however, after considering specified health factors.  Administrative Directive TC-1 is described in more detail in Part III below.

The Court Administrator’s Office is very grateful to the bar for its patience, cooperation, and input as the Judiciary has attempted to respond to the pandemic in a way that reasonably balanced safety considerations with our common goals associated with the fair administration of justice.  We would very much appreciate your continued input going forward as the pandemic winds down but the effects on court operations continue.

Paragraph 3, related to jury trials, is deleted effective September 6, 2022. This paragraph currently has four requirements related to jury trials. First, it requires a unit plan to be approved by the Chief Superior Judge and Chief of Trial Court Operations prior to conducting jury trials. Under simultaneously amended Administrative Order 3, the State Court Administrator will have authority to regulate court operations and under simultaneously issued Administrative Directive TC-1, unit plans will remain in effect. Second, ¶ 3(b) currently allows the court to impanel more alternate jurors to accommodate disruptions from COVID-19 infection or exposure. Simultaneously amended Vermont Rule of Criminal Procedure 24(d)(1) will allow the court to impanel as many jurors as reasonably necessary under the circumstances. See the Reporter’s Notes to Criminal Rule 24(d)(1). Third, ¶ 3(c) allows the Chief Superior Judge to transfer a proceeding from its original unit to an alternate unit. This provision will expire without replacement as there are sufficient existing rules and statutes on venue to allow for the necessary flexibility. Finally, ¶ 3(d) allows jurors in remote trials to use devices notwithstanding V.R.C.P. 79.2(d)(5). This allowance was already incorporated into Administrative Order 52 regarding remote civil jury trials.

Most of paragraph 5 regarding remote participation is also deleted effective September 6, 2022. Remote participation in civil, environmental, probate, and most family proceedings will be governed by existing Vermont Rule of Civil Procedure 43.1, subject to any changes that might result from the work of the Special Advisory Committee on Remote Hearings. Remote participation in criminal and delinquency proceedings will be governed by simultaneously amended Administrative Order 38. Paragraph 5(c), which relates to remote proceedings in the judicial bureau, remains in effect to allow for consideration and promulgation of amendments to V.R.S.C.P. 6 and V.R.C.P. 80.6(n), which are currently out for comment.

Paragraph 6, which provides processes related to email filing and service, is deleted effective September 6, 2022, when permanent amendments to Vermont Rule of Civil Procedure 5, Vermont Rule of Appellate Procedure 25, and Vermont Rule of Probate Procedure 5 will go into effect.

Paragraph 7, regarding access to court buildings, is deleted effective September 6, 2022. Simultaneously amended Administrative Order 3 provides the State Court Administrator with authority to regulate court operations, including policies governing entry to and conduct in judiciary buildings related to health and safety.

Paragraph 8, which suspended strict enforcement of the deadlines related to public records requests will expire without replacement on September 6, 2022. Paragraphs 9 and 10 will also expire without replacement.

Paragraph 12, regarding oral argument in the Supreme Court, remains in effect until September 30, 2022, and amended Vermont Rules of Appellate Procedure 9, 33.1, and 34 will go into effect on October 1, 2022.

Paragraph 13, which governed remote mediation, is deleted effective September 6, 2022. Permanent amendments to Vermont Rule for Family Proceedings 18(d)(2) governing mediation went into effect June 20, 2022.

Paragraph 15 governing committees, boards, and commissions established by the Supreme Court remains in effect until permanent amendments can be promulgated.

Paragraph 17, related to notarization and oaths, will expire on September 6, 2022.

Paragraph 20 that required giving priority to juvenile cases and those involving defendants detained pretrial will expire on September 6, 2022. These cases should continue to have priority on the courts’ dockets, but it is not necessary to outline that in an order.

Paragraphs 21 and 22 relate to pleading and notification requirements in foreclosure and eviction proceedings. The Advisory Committee on the Vermont Rules of Civil Procedure has proposed the addition of new Rules 9.2 and 9.3, which are currently out for comment. Once permanent rules are implemented, they can replace the emergency provisions.

The full text of Administrative Order 49 and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

Promulgation Order Amending Rules 9, 33.1., 34 of the Vermont Rules of Appellate Procedure

This Order was promulgated on August 9, 2022, effective October 1, 2022.

 

Rules 33.1, 34, and 9 are amended to update their provisions regarding remote oral argument. Because of the health concerns posed by the COVID-19 pandemic, the Vermont Supreme Court began holding remote oral arguments in April 2020. The arguments were conducted using Webex with Justices, attorneys, and self-represented parties appearing remotely by video or audio. Public access to the remote oral arguments was provided by a live stream. The Court conducted a survey of members of the bar on attorneys’ experiences with remote oral argument. Many respondents reported that remote argument was an efficient use of time and was effective. Some respondents preferred argument in the courtroom and missed the formality of in-person argument. Most respondents indicated they would choose in-person for full-Court arguments and remote for oral argument before a three-Justice panel.  The amendments to the rules reflect this distinction.

Rule 33.1(a)(2) is amended to clarify when a request for oral argument must be made.  The rule previously indicated that a request should be made “reasonably in advance of the date set for consideration.”  Supreme Court practice is for the Supreme Court docket clerk’s office to send a letter to the parties setting a date by which the parties should request argument. This allows the case to be properly scheduled on the calendar.  Rule 33.1(b)(2) is added to provide that oral argument before a three-Justice panel will be conducted remotely absent an order. An in-person oral argument is available under (b)(3) if a party files a motion and demonstrates good cause. The motion must be filed as soon as possible but no later than 7 days prior to the scheduled argument date. An in-person argument is not available when one party is incarcerated and self-represented. Rule 33.1(b)(4) is amended to provide that if there is a technology failure during a remote hearing, the Court may reschedule the argument, consider the case on the briefs, or take other appropriate action.

Rule 34(a) is amended to clarify when a case is ready to be scheduled and when a request for argument must be filed. Under the amendment, a case is ready to be scheduled when the appellee’s brief has been filed or is past due. At that time, the docket clerk’s office will send a letter to the parties setting a date by which to reply if oral argument is requested. The amended rule provides that if no party requests argument that date, the matter will be considered on the briefs unless the Court orders otherwise. Under new Rule 34(c), the default is that oral arguments before the full Court are scheduled for in-person participation. Under (d), the Court may grant a motion for one or more parties to participate remotely for good cause. The motion must be filed as soon as possible but at the latest 7 days before the scheduled argument date. An in-person hearing is not available when one party is incarcerated and self-represented. The revised rule also provides that if there is a technology failure during a remote hearing, the Court may reschedule the argument, consider the case on the briefs, or take other appropriate action. Former 34(c)-(j) are redesignated (e)-(l).

Rule 9, regarding bail appeals, is amended to incorporate provisions on remote oral argument. Rule 9(a)(1) is amended to specify that in appeals from conditions of release, the oral argument will be scheduled for a remote audio or video hearing. Rule 9(b)(1)(D) already provides that in de novo appeals under 13 V.S.A. § 7553a, the hearing may be conducted by remote audio or video. Rule 9(b)(2)(D) is added to provide that oral argument before a three-Justice panel may also be conducted by remote audio or video.

 

 

Promulgation Order Amending Rules 5, 6(a)(4) and 79.1 of the Vermont Rules of Probate Procedure

This Order was promulgated on August 9, 2022, effective September 6, 2022.

The amendments to Rules 5, 6, and 79.1 track new provisions of V.R.C.P. 5, 6, and 79.1 regarding email filing and email service.

 

Emergency Promulgation Order Amending Rule 24(d) of the Vermont Rules of Criminal Procedure

This Order was promulgated on August 9, 2022, effective September 6, 2022.

Rule 24 is amended at the request of the Supreme Court to make permanent certain provisions of Administrative Order 49, ¶ 3(b) that have on an interim basis authorized judges to seat more than four, and as many alternate jurors as reasonably required, to accommodate trial disruptions that might occur due to illness during the period of the Judicial Emergency.  The emergency amendment provides critical clarity and consistency during the full-scale restoration of jury trials in the Criminal Division post-COVID-19.

The present amendments rescind the existing limitations of subdivisions (d) and (f), which restrict the seating of no more than four alternate jurors and permit the court to impanel a reasonable number of alternate jurors.  In determining the number, the court can consider the anticipated length and complexity of the trial, and other factors such as the existing public-health conditions. The amendment, and its authorizations, do not contemplate that all jury panels going forward will be comprised of large numbers of alternate jurors beyond the two to four authorized under the present rule. However, with due regard to case circumstances, the court has discretion to seat additional prospective alternate jurors without specific numeric limitation, to assure that enough jurors remain at the conclusion of trial to enter into deliberations as to the case outcome.

Comments on these emergency amendments should be sent by October 17, 2022, to Hon. John Treadwell, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following address:

Honorable John Treadwell, Chair

Advisory Committee on Rules of Criminal Procedure

John.Treadwell@vermont.gov

 

Promulgation Order Amending Administrative Order No. 38

This Order was promulgated on August 9, 2022, effective September 6, 2022.

Administrative Order 38 is amended to update its provisions regarding the use of remote video and audio technology for criminal and delinquency proceedings. A.O. 38 previously authorized the use of audio and video technology to secure the presence of defendants and certain witnesses that were incarcerated. In response to the COVID-19 pandemic, remote technology was used more broadly to allow the court to preside remotely and for remote participation by parties, witnesses, counsel, and other persons. These proceedings were authorized by Administrative Order 49, ¶ 5(b). As the Judiciary transitions away from emergency measures implemented in response to the pandemic, it continues to use remote technology when appropriate. The amendments authorize a court to preside remotely and to require parties, witnesses, counsel, and other necessary persons to participate remotely when the court is conducting a nonevidentiary proceeding and the defendant’s presence is not required by law. For evidentiary proceedings, the court may preside remotely, and the remote participation of others is authorized only upon agreement of the parties. The rule incorporates the factors in Vermont Rule of Civil Procedure 43.1 for the court to evaluate whether to allow remote witness testimony. In Section II, the technical standards from Administrative Order 47 are incorporated.

The Court is promulgating the amendments without resort to the notice and comment procedures set forth in Administrative Order No. 11 to authorize remote proceedings and participation after the expiration of the authorizing provision in Administrative Order No. 49. The rules are being sent out for comment and the Advisory Committees on the Rules of Criminal Procedure and for Family Proceedings are directed to consider any comments, and report back to the Court on whether to permanently adopt the amendments or make further changes.

Comments on these emergency amendments should be sent by October 17, 2022, to Hon. John Treadwell, Chair of the Advisory Committee on Rules of Criminal Procedure, or to Hon. Michael Kainen, Chair of the Advisory Committee on the Rules for Family Proceedings at the following addresses:

 

Honorable John Treadwell, Chair

Advisory Committee on Rules of Criminal Procedure

John.Treadwell@vermont.gov

 

Hon. Michael Kainen, Chair

Advisory Committee on the Rules for Family Proceedings

Michael.Kainen@vermont.gov

 

Promulgation Order Amending Administrative Order No. 3

This Order was promulgated on August 9, 2022, effective September 6, 2022.

Pursuant to the Vermont Constitution, the Supreme Court has “administrative control of all the courts of the state.” Vt. Const. ch. II, § 30. The Court in turn may delegate administrative duties to the Court Administrator. 4 V.S.A. § 21 (creating office of Court Administrator and providing that Supreme Court shall prescribe duties). The COVID-19 pandemic brought to light the need for the Judiciary to maintain cogent and data-driven operational policies for activities in Judiciary buildings and to quickly respond to urgent and unexpected health and safety issues. Therefore, Administrative Order 3 is amended to specifically authorize the Court Administrator to promulgate policies governing operations in the courts, including those regarding access and entry to Judiciary buildings to protect the health and safety of both court users and court personnel. In doing so, the Court Administrator must balance public-health considerations with the Judiciary’s responsibilities to serve the public and administer justice. Where the Judiciary shares space with other state agencies or common entry with county government offices, the Court Administrator should work to create mutually agreed policies on entry.

 

Promulgation Order Amending A.O. 52

This Order was promulgated on July 11, 2022, effectively.

Administrative Order 52, which established a pilot project for remote civil jury trials, is amended in two ways.  First, the pilot is extended to August 31, 2023, to allow more opportunity for the Judiciary and court users to gain experience with this format.  Second, the order is amended to underscore that prospective and seated jurors may use devices for remote trials notwithstanding the prohibition in V.R.C.P. 79.2(d)(5).

 

Promulgation Order Amending A.O. 23

This Order was promulgated on July 11, 2022, effective September 12, 2022

Administrative Order 23, regarding the Advisory Committee on the Rules of Evidence, is amended to expand the membership of the committee from ten to thirteen. The primary reason for the change is to broaden the membership to ensure a range of experience on the committee, representing the varied practice areas where the evidence rules are used. The amended order requires that the committee include seven attorneys each with a focus and experience in the following practice areas: general civil, criminal prosecution, criminal defense, probate, mental-health, family domestic, and juvenile. The order retains three additional general members that are not tied to a particular practice area.

 

Promulgation Order Adding A.O. 53

This Order was promulgated on July 11, 2022, effective September 12, 2022.

Administrative Order 53 is added to establish a permanent Advisory Committee on the Vermont Rules for Electronic Filing. The Supreme Court established a special advisory committee to develop rules governing procedures for electronic filing in conjunction with the implementation of the Judiciary’s electronic case management system. The resulting rules continue to require modification based on experience and a permanent committee will assist the Court in keeping the rules updated.

 

Promulgation Order Amending A.O. 41 § 4 and Adding § 18

This Order was promulgated on July 11, 2022, effective September 12, 2022.

The amendments to Administrative Order 41 add provisions regarding disclosure of insurance coverage for malpractice. A joint committee made of members from the Professional Responsibility Board and the Vermont Bar Association met several times, studied the approaches of several jurisdictions, and heard from a variety of individuals, including attorneys involved in attorney discipline and malpractice cases, and representatives of title and malpractice insurers. The committee proposed that A.O. 41 be amended to require that the annual licensing statement include a section requiring lawyers to disclose their insurance status. New § 4(a)(8) implements that requirement. New § 18 provides details of the required disclosure, exempting government attorneys, in-house counsel, active attorneys not representing clients, and attorneys not on active status. Section 18(d) provides that the information regarding insurance coverage is publicly available, but delays public availability until after a full license renewal period has passed.

 

Promulgation Order Amending V.R.C.P. 26(e)

This Order was promulgated on July 11, 2022, effective September 12, 2022.

The amendment to Rule 26(e) conforms the Vermont rule to the federal rule in two respects. The first relates to supplementation of expert disclosures and expert depositions. The amended rule requires supplementation of disclosure of information provided about expert witnesses or by expert witnesses when deposed. The second change is a clarification. As originally drafted, the federal and state rules on supplementation referred to supplementing a response that was correct when initially made. The Vermont rule now follows the federal rule by deleting “thereafter acquired” from the first sentence of the rule. This change eliminates any interpretation of the rule that the duty to correct or supplement does not arise if information available to the disclosing party at the time of the initial disclosure rendered the initial disclosure incomplete or inaccurate.

 

Promulgation Order Amending A.O. 9, Rules 7, 8, 20 and 26

This Order was promulgated on July 11, 2022, effective September 12, 2022.

The amendment to Rule 7(B) rescinds the existing limit on the number of terms that an Assistance Panel member may serve. Given the nondisciplinary format and goals of the Bar Assistance Program, the value of experienced members, and the relatively small pool of potential members, there is no reason to limit terms.

The amendment to Rule 7(C) rescinds the requirement that at least one member of an Assistance Panel be a current member of the Board. With only seven volunteer members, this requirement puts an unreasonable expectation on Board members’ time. Board members remain eligible to volunteer to serve as members of assistance panels.

The amendments to Rule 8 clarify the scope of the confidentiality of all information, communications, and records received and generated by the Bar Assistance Program. New paragraph (C) is added to clarify that all information, communications, and records related to matters considered by Assistance Panels are confidential. New paragraph (D) is added to clarify the situations in which otherwise confidential information, communications, or records must be disclosed. Old paragraph (C) is relabeled a paragraph (E) and is amended for clarity and to strengthen the confidentiality of information, communications, and records. Old paragraph (D) is relabeled as paragraph (F) and is amended to clarify the situations in which otherwise confidential information, communications, or records may be disclosed. Paragraph (F) loosely tracks V.R.Pr.C. 1.6(c) and is intended to permit Bar Counsel or the Bar Assistance Program to disclose information in situations in which a lawyer would be permitted to do so in a lawyer-client relationship. Old paragraph (E) is relabeled as paragraph (G) and is amended to reflect that, on occasion, the Professional Responsibility Program might contract with an attorney to serve when Bar Counsel has a conflict of interest or is otherwise unable to serve. Old paragraph (F) is relabeled as paragraph (H) and is amended make clear that the confidentiality provisions of Rules 5, 6, and 7 encompass all who might work or volunteer in or for the Bar Assistance Program.

The amendment to Rule 20 reflects the 2021 amendments that created the role of Screening Counsel.

The amendment to Rule 26(D) clarifies that lawyers who are suspended for 6 months or longer must petition for reinstatement to the active practice of law. By contrast, lawyers who are suspended for less than 6 months may resume practicing upon the expiration of the suspension.

 

Promulgation Order Amending Administrative Order No. 50

This Order was promulgated on July 5, 2022, effective July 5, 2022.

Administrative Order No. 50, originally promulgated in August 2020, created a pilot project to serve defendants more efficiently in cases where the Office of Child Support (OCS) is providing services under federal law. The pilot project began in Windham and Windsor Units, was extended to Caledonia and Orange Units in August 2021, extended to the Orleans Unit in March 2022 and is now extended to the Franklin, Grand Isle, Lamoille, and Essex Units.

 

Promulgation Order Amending Rule 6(b)(14) of the Vermont Rules for Public Access to Court Records

This Order was promulgated on June 6, 2022, effective August 8, 2022.

Rule 6(b)(14) contains a list of exemptions of personally identifying information. Rule 6(b)(14)(v) previously exempted the name “of a child alleged to be a victim” in a criminal case. To alleviate any confusion regarding whether the exemption referred to the alleged victim’s age at the time of the offense or currently, the amendment clarifies that the exemption applies to an alleged victim who was a minor at the time of the offense. The amendment also substitutes the term “minor” for “child” because minor is a legal term already defined by statute. See 1 V.S.A. § 173.

 

 

Promulgation Order Amending Rule 11(c) of the 2020 Vermont Rules for Electronic Filing

This Order was promulgated on May 9, 2022, effective September 6, 2022.

The amendment to Rule 11(c) conforms the rule to simultaneous amendments to V.R.C.P. 5(b)(2)(D), which requires efilers to serve discovery using the electronic filing system, unless the parties agree on an alternative method of service.

 

Promulgation Order Making V.R.C.P. 80.11 Permanent

This Order was promulgated on May 9, 2022, effective July 11, 2022.

Rule 80.11, which provides procedures for expedited actions, was originally adopted by the Supreme Court’s order of June 15, effective August 15, 2016, with a sunset date of August 16, 2019.  The rule is now made permanent.

By order of April 30, 2018, the Court ordered the rule, as amended, to be continued and directed the Advisory Committee on the Rules of Civil Procedure to continue to review its operation and to advise the Court whether it should be further revised or made permanent. The Committee discussed the rule at several recent meetings. A Vermont Bar Association membership survey conducted on behalf of the Committee, indicated that, although the expedited action procedure provided by Rule 80.11 is not used extensively, it is generally viewed as useful and effective, with no significant suggestions for revision. After review and discussion of the survey results, the Committee voted unanimously to recommend to the Court that V.R.C.P. 80.11 as presently constituted be promulgated as a permanent rule effective not later than August 31, 2022.

 

Promulgation Order Amending V.R.C.P. 5, 6(a), 29, 79.1

Missing media item.

This Order was promulgated on May 9, 2022, effective September 6, 2022.

Rule 5 is amended at the request of the Supreme Court to make permanent certain provisions of Administrative Order 49 that permit filing and serving documents by email in certain circumstances.  In several places “paper” is changed to “document,” a word defined in the

Rule 5(a) is carried forward and sets forth the service requirement for all documents subsequent to the summons and complaint or for which the rules may provide another mode of service. New Rule 5(b)(1) defines the five methods of service—using the efiling system, email, delivery, mailing, and leaving with the clerk. New Rule 5(b)(2) sets forth five required or permitted methods of service. Subparagraph (2)(A) makes clear that service between electronic filers must be made through the electronic filing system, or by another method agreed between the parties, as provided in Rule 11(d) of the 2020 Vermont Rules for Electronic Filing.

New Rule 5(b)(2)(B) delineates the methods of service for nonelectronic filers, which includes self-represented parties or other participants that have not elected or are not required to electronically filed. Those individuals may serve or be served by delivery, mailing, or commercial carrier. Email service may be made in three circumstances. First, email service can be used if a self-represented party files a notice of appearance and provides both an email address and consent to be served at the email in accordance with simultaneously amended Rule 79.1(d). Second, the parties may agree to service by email in a signed writing filed with the court. Last, if a non-efiler does not have a valid physical or postal address, service can be made by email even if consent was not provided in the notice of appearance. The rule formerly allowed for service by leaving with the clerk where no address was known.  Leaving with the clerk is now authorized by Rule 5(b)(2)(B)(iii) if no valid physical, postal, or email address is known.  New Rule 5(b)(2)(D) pertains to service of discovery documents that are not filed with the court. Under this provision efilers must serve discovery documents by using the electronic filing system.

Revised Rule 5(e) has minor wording changes and is amended to allow unregistered self-represented parties and other participants to file by delivery, mail, commercial carrier, or email.  There are standards for email filing in new Rule 5(e)(4).  Rule 5(e)(5) specifies the filing date for documents depending on how they are filed.

New Rule 5(i) incorporates several definitions pertaining to filing and service from the 2020 Vermont Rules for Electronic Filing.

Rule 6(a)(4) is amended in conjunction with Rule 5(e)(5)(B) to specify that the last day for filing by email ends at midnight in the court’s time zone.

Rule 29 is amended to conform to concurrent changes in Rule 5 regarding service of discovery materials. Under new Rule 5(b)(2)(D), discovery between electronic filers must be made by using the electronic filing system unless the parties consent to service by another method such as through email or file sharing. Discovery on or by nonelectronic filers is made by mailing or delivery. Again, email or another method can be used if the parties agree.

Rule 79.1 is amended to clarify what is required from a self-represented party. Rule 79.1(d) requires self-represented parties to file and sign a Notice of Appearance for self-represented party, which is available on the judiciary website https://www.vermontjudiciary.org/sites/default/files/documents/100-00265.pdf  The form contains contact information to facilitate both service by other parties and notice by the court. The form also allows self-represented parties to consent to receive service by email. Even where a self-represented party does not consent to email service, the party may be served using an email provided on a pleading if there is no known physical or postal address. This conforms to a contemporaneous amendment to Rule 5(b)(2)(B)(ii).  Rule 79.1(e) and (h)(4) are amended to replace the word “paper” with “document.” Rule 5(i)(1) incorporates the broad definition of “document” from the 2020 Vermont Rules for Electronic Filing for purposes of filing and service. Rule 79.1(i), which required attorneys to provide an eCabinet registration number, is deleted as obsolete.

 

Promulgation Order Amending V.R.A.P. 25

This Order was promulgated on May 9, 2022, effective September 6, 2022.

The amendment to V.R.A.P. 25 is made in conjunction with the amendments to V.R.C.P. 5 regarding email filing and service. V.R.A.P. 25(a)(1) and (2), regarding filing of documents, is deleted. Amended 25(a)(1) instead states that filing must be made as provided in V.R.C.P. 5(e) and the 2020 Vermont Rules for Electronic Filing. Incorporating the filing requirements of V.R.C.P. 5(e) will provide consistency across different dockets and predictability. The service requirements of V.R.C.P. 5 are already incorporated into the appellate rule. 

The amendment also deletes V.R.A.P. 25(a)(2)(B), which previously provided: “A brief or printed case is timely filed if mailed or delivered to the carrier on or before the last day for filing.”  Given the implementation of electronic filing in the Supreme Court and the concurrent implementation of filing by email, the provision is outdated. To the extent the purpose of the exception for briefs is to give parties the maximum time to complete their briefs, simultaneous amendments expand the deadlines for these filings from 30 to 40 days for an appellant’s principal brief, from 21 to 30 days for an appellee’s principal brief, and from 7 days to 14 days for a reply brief.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 5-09-22

This Order was promulgated on May 9, 2022, effective immediately.

Paragraph 2 of Administrative Order 49 is amended to extend its effective date to August 31, 2022. The Judiciary continues to respond to the COVID-19 pandemic by amending provisions of the order as necessary. Paragraphs 5(d) and 7(b), concerning limited-entry courthouses, are amended to authorize the Court Administrator in consultation with the Chief Superior Judge to limit in-person hearings and in-person access to buildings with limited air-flow systems. The affected locations and any associated restrictions on in-person hearings or in-person access will be provided on the Vermont Judiciary website. Paragraph 15(c), concerning internal committees, boards, and commissions is amended to remove the prior prohibition on in-person meetings. Committees are still authorized to meet remotely. Paragraph 16, which concerned venue, is deleted. The Chief Superior Judge and superior judges have sufficient authority under existing statutes and rules to respond to any venue-related issues stemming from the pandemic. Finally, ¶ 24 is deleted effective June 20, 2022. This paragraph amended Vermont Rule of Civil Procedure 68 to extend use of the offer-of-judgment rule to plaintiffs. The Court has since promulgated a permanent amendment to Rule 68, which will become effective June 20, 2022.

The full text of Administrative Order 49 and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

Promulgation Order Amending V.R.Cr.P. 45 (a)(4)(A) and (e)

This Order was promulgated on May 9, 2022, effective September 6, 2022.

The amendments to Rule 45 are part of a larger project to update rules regarding filing and service across all divisions. The amendment to Rule 45(a)(4)(A) clarifies that when email filing is permitted email filings are timely when made at any time prior to midnight on the last day specified for required action. This conforms with a simultaneous amendment to V.R.C.P. 6(a)(4).

The amendment also deletes V.R.Cr.P. 45(e), which previously allowed three additional days for filing after certain kinds of service.  A simultaneous amendment deletes the provision from V.R.C.P. 6(e) and V.R.A.P. 26(c).

 

Order Amending Rule 6(e) of the Vermont Rules of Civil Procedure and Rule 26 and 31(a) of the Vermont Rules of Appellate Procedure

This Order was promulgated on May 9, 2022, effective September 6, 2022.

V.R.C.P. 6(e) and V.R.A.P. 26(c) are simultaneously deleted. As most recently amended in 2018, Rule 6(e) provided:

(e) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2) (mailing), (3) (leaving with the clerk), or (4) (sending by electronic means), 3 days are added after the period would otherwise expire under Rule 6(a).

Deleting these provisions is overdue, given the general simplification of counting time that occurred when the “day is a day” method of counting was adopted in 2018 and the widespread use of service by electronic means, either through OFS or by email.

V.R.A.P. 26(d)(1) is amended to extend the maximum time limits to which filing times for briefs may be extended by stipulation. Under subparagraph (1)(A), the extension for the appellant’s principal brief is increased from 30 to 40 days. The extension for appellee’s principal brief is increased from 21 to 30 days, and that for reply briefs is increased from 14 to 21 days. These time limits are identical to those in the Federal Rules of Appellate Procedure, which were put in place when the federal three-day rule was eliminated for electronic filing. Now that electronic filing has been adopted for appeals to the Vermont Supreme Court, and the three-day rule is being eliminated by simultaneous deletion of V.R.C.P. 6(e) and V.R.A.P. 26(c), the longer time periods are appropriate for Vermont.

Rule 31(a) is amended to extend the serving and filing times for principal and reply briefs. Under paragraph (1), the time for the appellant’s principal brief is increased from 30 to 40 days. The time for appellee’s principal brief is increased by paragraph (2) from 21 to 30 days, and that for reply briefs is increased by paragraph (3) from 14 to 21 days.

 

Order Abrogating Rule 18(d) of the Vermont Rules of Probate Procedure

This Order was promulgated on May 9, 2022, effective July 11, 2022.

Rule 18(d) previously indicated that V.R.F.P. 6 and 6.1 governed the representation of attorneys and guardians ad litem in proceedings under 14 V.S.A. Chapter 111.  Because representation by guardians ad litem and attorneys are now covered by V.R.P.P. 80.9 and 80.10, rather than by V.R.F.P. 6 and 6.1, Rule 18(d) is abrogated.

 

Promulgation Order Adding V.R.Cr.P. 11(a)(4)

This Order was promulgated on April 18, 2022, effective June 20, 2022.

The addition of Rule 11(a)(4) provides an additional procedure whereby a defendant may preserve a post-conviction relief (PCR) challenge to a predicate conviction while pleading guilty or no contest to an enhanced offense, where the State has not consented to preservation of the challenge under the terms of Rule 11(a)(3). The amendment provides that, with the approval of the court, a defendant may preserve a PCR challenge to a predicate conviction when entering a plea of guilty or nolo contendere even in cases where there is no plea agreement, or consent to the preservation otherwise given by the State, by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a PCR petition, specifically identifying the convictions to be challenged, and stating the basis for the challenges.

 

Promulgation Order Amending V.R.S.C.P. 7 and 8

This Order was promulgated on April 18, 2022, effective June 20, 2022.

V.R.S.C.P. 7 is amended to address issues that have been plaguing the small claims docket. The amendments require personal service of judgments before financial disclosure hearings can be held and extend the time period between new financial disclosure hearings. The amendments also include some simple language changes to make the rules clearer. Simultaneously adopted amendments of V.R.S.C.P. 8 modernize and simplify the contempt process for failure to appear at a financial-disclosure hearing.  The amendments clarify the basis for a contempt finding and narrow the remedies available for contempt. They also simplify the process for creditors seeking a contempt order.

 

Promulgation Order Amending V.R.C.P. 68

This Order was promulgated on April 18, 2022, effective June 20, 2022.

Rule 68 is amended to allow plaintiffs to make offers of judgment where the rule previously only allowed such offers by defendants. The change was initially adopted as part of Administrative Order 49 to make the practice more widely available at a time when in-person civil jury trials were largely on hold pursuant to Administrative Order No. 49, ¶ 24. The present amendment makes the change permanent

 

Promulgation Order Amending V.R.C.P. 50(b)

This Order was promulgated on April 18, 2022, effective June 20, 2022.

V.R.C.P. 50(b) is amended in response to the Vermont Supreme Court’s request in Blondin v. Milton Town School District, 2021 VT 2, ¶ 26 n. 10, __ Vt. __, 251 A.3d 959, that the Civil Rules Committee consider whether that rule “should be amended to be consistent with the federal rule and potentially to allow consideration of pure questions of law on appeal absent renewal following judgment.”  The amendment to V.R.C.P. 50(b) limits the requirement to renew a motion for judgment as a matter of law when it is a sufficiency-of-the-evidence claim.

 

 

Promulgation Order Amending Rule 18(d)(2) of the Vermont Rules for Family Proceedings

This Order was promulgated on April 18, 2022, effective June 20, 2022.

The amendment to Rule 18(d)(2) clarifies that mediation can take place either in person or using remote technology.

A.O. 49 was initially issued March 16, 2020, in response to the state of emergency resulting from the pandemic. Paragraph 13 of A.O. 49 authorized remote participation in mediation by video or telephone without a stipulation or court order. Further, in anticipation that at some point A.O. 49 would no longer be necessary, the Supreme Court requested that the Advisory Committee on Rules for Family Proceedings consider whether there should be a permanent change to Rule 18 related to remote participation. After considering responses from attorneys who practice family law to a Vermont Bar Association survey and responses from family mediators, the Committee concluded that both in person and remote participation in mediation should be permissible in family proceedings subject to V.R.F.P. 18 at the discretion of the mediator or by order of the court.

 

Promulgation Order Amending Rules 2(a)(2) and (3), 6(a) and (c)(2)(3), 6.1(a) and (c)(1), and 8(h) of the Vermont Rules for Family Proceedings

This Order was promulgated on April 18, 2022, effective June 20, 2022.

Rule 2(a)(2) is amended to eliminate the reference to V.R.C.P. 78(a), (Motion Days) which was abrogated by order of June 7, effective August 9, 2021. Rule 2(a)(3) is amended to replace the reference to V.R.C.P. 78(b) with a reference to V.R.C.P. 7(b)(4) (Memorandum in Opposition), added by that order and embodying the provisions of former V.R.C.P. 78(b)(1) in revised form.

Provisions of Rules 6 and 6.1 are deleted because the probate rules now contain provisions on the appointment of guardians and attorneys in probate proceedings. See V.R.P.P. 80.9 (Representation by Guardians ad Litem of Minors) and V.R.P.P. 80.10 (Representation by Attorneys and Guardians ad Litem of Adults in Specified Proceedings). In addition, the reference to the title of 18 V.S.A. Chapter 206 is amended to be consistent with legislation enacted in 2014.  2013, No. 96 (Adj. Sess.), § 114.

Rule 6.1(c)(1) is amended to replace the reference to V.R.C.P. 78(b) (Disposition of Written Motions With or Without Hearing), which was abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b)(6) (Evidentiary Hearings) added by that order and embodying its relevant provisions in revised form.

Rule 8(h) is amended to eliminate the reference to V.R.C.P. 78 (Motion Day), which was abrogated by order of June 7, effective August 9, 2021. All relevant provisions of the former V.R.C.P. 78 are now incorporated in V.R.C.P. 7.

 

Promulgation Order Amending A.O. 14

This Order, promulgated on April 18, 2022, effective immediately, replaces Justice Robinson with Justice Waples as the Justice responsible for entertaining motions for Area III.

 

Promulgation Order Amending A.O. 50

This Order was promulgated on March 7, 2022, effective April 1, 2022.

Administrative Order No. 50, originally promulgated in August 2020, created a pilot project to serve defendants more efficiently in cases where the Office of Child Support (OCS) is providing services under federal law. The pilot project began in Windham and Windsor Units, was extended to Caledonia and Orange Units in August 2021, and is now extended to Orleans Unit.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 3-07-22

This Order was promulgated on March 7, 2022, effective immediately.

Paragraph 13 relates to remote participation in court-ordered mediation. The first two sentences of ¶ 13 contained provisions authorizing remote participation for proceedings conducted under V.R.C.P. 16.3(b)(3) and directing the Advisory Committee on the Rules of Civil Procedure to consider a permanent change to the rule.  A permanent rule amendment to V.R.C.P. 16.3(b)(3) was promulgated December 13, 2021, and effective February 14, 2022. Therefore, these sentences are deleted.

The full text of Administrative Order 49 and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 2-07-22

This Order was promulgated on February 7, 2022, effective February 22, 2022.

Paragraph 2 is amended to extend the effective date of the Administrative Order until May 31, 2022. The Court will continue to respond to the changing situation by amending provisions of the order as necessary but anticipates that some portions will continue to be necessary due to the ongoing impacts of the pandemic.

Administrative Order 49 ¶ 22(g) provides a procedure for notifying defendants of the availability of federal funds under the Vermont Homeowner Assistance Program (VHAP) to assist borrowers with overdue mortgages in hopes of reducing foreclosures. The requirements of ¶ 22(g) apply in one-to-four-unit residential property foreclosure and replevin actions.

In essence, ¶ 22(g) requires a plaintiff in a covered action to serve notice on the defendant borrower of the availability of VHAP funds. If a defendant who has applied for VHAP funds so requests, any entry of judgment, notice of sale, sale of the property, or issuance of an order of replevin is automatically stayed for 60 days. The stay does not apply to foreclosure mediation unless ordered by the court. The court may terminate the stay if the plaintiff requests on a showing of one or more specific objections. The stay is terminated automatically after 60 days if no VHAP action has been reported and an extension is not sought. If plaintiff learns that defendant has applied to VHAP, plaintiff must report that fact to the court, which may take appropriate action. The court will terminate a stay upon notification by either party that the VHAP application was denied. The provision expires on September 30, 2025, or on the earlier exhaustion of VHAP funds.

Two new forms are adopted. Appendix E provides a form for plaintiffs to certify compliance with the notice requirement. Appendix F contains the notice to defendants and a sample request to stay that can be filed by a defendant.

Former ¶ 22(g), requiring the Civil Rules Committee to consider appropriate permanent rules changes to be made after A.O. 49 expires, has been redesignated as ¶ 22(h).

The full text of Administrative Order 49 and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

Promulgation Order Amending Rules 8(b)(2), 9(b), 11, 12(a), 13(d), 17, and 18(c) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on February 7, 2022, effective April 11, 2022.

The amendment to Rule 8(b)(2) clarifies what factors the Board of Bar Examiners considers when determining whether to waive the requirement that an applicant who has graduated from a foreign law school also be admitted to the bar in the foreign jurisdiction.

The amendment to Rule 9(b)(1) delineates what factors the Board of Bar Examiners considers when determining whether to waive the requirement that the bar exam be taken within five years of graduating from law school or completing the LOS Program. The amendment to wording in Rule 9(b)(3) regarding the passing UBE score is also corrected to specify that an Applicant must receive a score of 270 or higher.

The amendment to Rule 11 regarding the MPRE passing score is corrected to clarify that an Applicant must receive a score of 80 or higher.

The amendment to Rule 12(a)(2) allows applicants to commence their mentorship prior to admission to the bar. Also, references in the Rule to the “the Board of Continuing Legal Education” are changed to “the Board of Mandatory Continuing Legal Education” to accurately reflect the name of the Board.

The amendment to Rule 13(d) clarifies what factors the Board of Bar Examiners considers when determining whether to waive the requirement that the bar exam must be taken within five years of graduating from law school or completing the LOS Program.

The amendment to Rule 17 amends the opening sentence of the rule to correct the cross reference to Rule 16.

The amendment to Rule 18(c) requires an applicant to file a notice of appeal within 30 days of the date of a decision rather than 30 days of date the decision was mailed. This reflects the practice of notifying applicants (via electronic means) of the panel’s decision on the same day the decision issues.

 

Promulgation Order Amending Rules 5(c) and (d), 6(b) and Abrogating and Replacing Rule 9 of the Vermont Rules for Public Access to Court Records

This Order was promulgated on February 7, 2022, effective April 11, 2022.

The amendments to Rule 5(c) and (d) clarify that the specific right of access to records for lawyers and guardians ad litem applies unless there is a restriction on access, such as for records containing trade secrets or other confidential information that is sealed from particular parties.

New Rule 6(b)(20) adds an exception to public access for motions for ex parte relief until there is a court decision on the motion. New Rule 6(b)(21) adds an exception to public access for records subject to a motion for in camera review subject to the court’s decision. New Rule 6(b)(22) adds an exception to public access for records containing trade secrets or other confidential business information.

Rule 9 which concerns limiting or granting access to court records, is abrogated and replaced. Under the amended version, a hearing on a motion to seal or redact is not required unless there is a request or an objection to sealing or redacting or the court orders a hearing. The rule deletes reference to standing and instead provides a practical description of persons who are entitled to notice and an opportunity for hearing. The rule describes the circumstances in which all parties to a case may stipulate to the sealing or redacting of a document or documents, subject to the court’s finding of good cause. Rule 9(e) contains a provision specifying that a party can seek permission to appeal ruling on a motion to seal or for access through V.R.A.P. 5.1.  Rule 9(f) addresses requests to seal that are made directly to the Supreme Court concerning Supreme Court documents.

 

Promulgation Order Amending Rules12.C, 13.B, 14.C(4) and 26.D of Administrative Order No. 9, Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program

This Order was promulgated on February 7, 2022, effective April 11, 2022.

Several amendments are made to provide correct cross references.  Rule 12.C is amended to correct a cross reference from Rule 15 to Rule 13. Rule 13.B is amended to correct a cross reference from Rule 15.D to Rule 13.D. Rule 14.C is amended to correct a cross reference in 14.C(4) from Rule 15.D(5) to Rule 15 generally. Rule 26.D is amended to correct a cross reference from Rule 15.E to Rule 13.E.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 1-14-22

This Order was promulgated on January 14, 2022, effective immediately.

Paragraph 3(a) is amended to clarify that the trial courts retain discretion to hold jury trials if safety measures are in place. This decision is consistent with current guidance received from the Vermont Judiciary’s infectious disease expert that in-person jury draws and trials are safe so long as the particular courthouse has been approved for in-person jury trials and all participants observe social distancing and wear masks. The amendment provides a list of factors for the trial court to considering in determining whether to hold a jury draw or jury trial, including the potential disruption to proceedings due to COVID-19 infections. Paragraph 3(b) is added to allow the trial court to impanel as many alternate jurors as reasonably required notwithstanding V.R.Cr.P. 24(d)(1), which directs that no more than four jurors be impaneled to sit as alternate jurors.  More alternate jurors may be necessary in case there is any disruption caused by the excusal of seated jurors due to COVID-19 infection, illness, or isolation.

Prior paragraphs 3(b) and (c) are relettered as (c) and (d).

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 1-10-22

This Order was promulgated on January 10, 2022, effective immediately.

The amendment to ¶ 15(f) extends the modification of MCLE requirements for continuing legal education to the 2020-2022 reporting cycle to account for the ongoing limitations on in-person gatherings as a result of the COVID pandemic.

The full text of Administrative Order 49 and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 1-05-22

This Order was promulgated on January 5, 2022, effective immediately.

Paragraph 7 of Administrative Order 49 is amended concerning access to judiciary buildings.  Under the existing language of ¶ 7(a), the Court Administrator has authority to issue directives regulating entry to and conduct in judiciary buildings for judiciary employees, court users, and other court visitors based on the most-recent public-health guidance. Given the emergence of more contagious strains of the COVID-19 virus, this amendment indicates that where the Court Administrator has required use of a mask, there is a preference for N95, KN95, or KF94 masks, which may provide greater protection from infection. The Court Administrator’s directive regarding health screening and safety protocols is available on the Judiciary website:

The full text of Administrative Order 49 and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

Emergency Order Amending Rule 5(d) of the Vermont Rules for Electronic Filing

This Order was promulgated on December 20, 2021; effective immediately.

Under the prior language of Rule 5, all electronic filings were reviewed prior to entry into the Judiciary’s electronic case management system in accordance with the rule’s requirements and Rule 7 of the Vermont Rules for Public Access to Court Records.  Rule 5(d) is amended following entry of the decision and order of the U.S. District Court for the District of Vermont in Courthouse News Service, et. al. v. Patricia Gabel, et. al.,Case No. 2:21-cv-00132 on November 19, 2021. The amendments comport with new procedures for the processing of the initial civil complaint, essentially providing for public access to the same, prior to clerk review and acceptance pursuant to Rule 5(d). The amendments do not alter an electronic filer’s obligations under Rule 5(b), including compliance with Rule 5(b)(5) and (6).

On Friday, December 10, 2021, initial civil complaints began to be processed so they were automatically entered in the Judiciary’s electronic case management system without prior staff review and acceptance. Previously, all electronic filings, including initial complaints and associated documents in such cases, were reviewed by staff before being entered into the electronic case management system. Some initial civil complaints are excepted from the automatic entry, including those in small claims actions, stalking/sexual assault actions, and those within the original jurisdiction of the Supreme Court, or within the jurisdiction of criminal division, family division, environmental division, probate division, or the judicial bureau.

The rule amendment is effective immediately given the need to comply in a timely way with the injunction. The rule amendments will cease to be in effect if the injunction is terminated or modified.

 

Promulgation Order Adding Rule 11(e) to the Vermont Rules of Civil Procedure

This Order was promulgated on December 13, 2021, effective February 14, 2022.

Rule 11(e) is added at the suggestion of the Supreme Court to make permanent an emergency provision permitting use in a civil action of remote means to obtain attestations of parties. The Rule applies whenever these rules otherwise require the filing of a statement made under oath, an affidavit, or a notarized document. It is a narrower version of 28 U.S.C. § 1746, which applies to statutory requirements as well.

 

Order Promulgating Amendments to Rules 43(e) and 54(d)(2)(C) of the Vermont Rules of Civil Procedure

 

This Order was promulgated on December 13, 2021, effective February 14, 2022.

Rules 43(e) and 54(d)(2)(C) are amended to replace the references to V.R.C.P. 78, which was abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b), added by that order and embodying the provisions of V.R.C.P. 78(b)(2) in revised form.

 

 

Order Promulgating Amendments to Rules 3.1, 4, 56, and 84 of the Vermont Rules of Civil Procedure, and Abrogating the Appendix of Forms to those Rules

 

This Order was promulgated on December 13, 2021, effective February 14, 2022.

Rule 3.1(b)(2) is amended to substitute “the applicant’s” for “household” to achieve internal consistency of usage throughout Rule 3.1 and to provide clear and consistent guidance to the Court Administrator in developing forms to implement the rule. The party seeking waiver of fees and payment of costs is denoted “the applicant” everywhere else in the rule. The retention of “household” to describe income to be counted in paragraph (b)(2) when the rule was generally amended in 2020 was inconsistent with the general purpose of the 2020 amendments and created a confusing ambiguity in the application of the rule.

Rule 56 is amended to delineate the timing and the content of motions for summary judgment, oppositions to summary judgment motions, and motions in reply to opposition. Amended Rule 56(b) is amended to provide in one place the filing times for the three principal procedural steps for which amended Rule 56 provides.  Amended Rule 56(c) requires that responses to the movant’s statement of undisputed facts are to be provided in numbered paragraphs corresponding to those of the movant’s statement, and that statements of additional facts—disputed or undisputed—be submitted in a separate statement, with numbered paragraphs. These provisions respond to prior concerns that nonmoving parties were causing confusion by incorporating additional material in their oppositions to the movant’s statement.

Rules 4 and 84 are amended concurrently with the abrogation of the Appendix of Forms.  Rule 84 and the Appendix of Forms were originally adopted with the Vermont Rules of Civil Procedure in 1971 on the model of the 1938 Federal Rules of Civil Procedure. Federal Rule 84 and the federal Appendix of Forms were abrogated in 2015. For at least five years, the Vermont Court Administrator’s office has been publishing new and amended forms on the Judiciary website in a “Forms Library,” which now contains a great number and wide variety of detailed forms.  The present amendment of Rule 84 establishes the Judiciary website as the primary source of forms and reflects the reality that approval is now the Court Administrator’s responsibility.  The amended rule continues to indicate that the forms are sufficient under the rules and provide the standards of simplicity and brevity.

 

Order Promulgating Amendments to Rule 16.3(b)(3) of the Vermont Rules of Civil Procedure

This Order was promulgated on December 13, 2021, effective February 14, 2022.

Rule 16.3(b)(3) is amended, pursuant to the Supreme Court’s directive under Administrative Order 49, ¶ 13, that the Civil Rules Advisory Committee “consider whether a permanent change to the rules relating to participation in remote mediation is advisable.”

Prior to these amendments, Rule 16.3(b)(3) required parties and counsel to attend a mediation unless they “stipulate otherwise or the court, for good cause, excuses participation or authorizes telephone participation. The present amendments retain the basic structure of Rule 16.3(b) that in-person attendance is the default position, with an option for remote mediation if the parties so stipulate or the court, in its discretion, so orders or excuses a party.

 

 

Order Promulgating Amendments to V.R.Cr.P. 7

This Order was promulgated on November 15, 2021; effective January 18, 2022.

The addition of subdivision (d) addresses amendment of an indictment or information prior to trial, including late-stage amendments when a case has been scheduled for final pre-trial conference, jury selection, and trial. The amendment allows the court on its own or in response to defendant’s motion to strike the amended information or indictment if it would cause undue delay or if defendant’s substantial rights would be prejudiced.

 

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 11-15-21

This Order was promulgated on November 15, 2021, effective immediately.

Paragraph 21 regarding pleading requirements in eviction proceedings is amended in several ways.  Under existing ¶ 21(a), a plaintiff in a proceeding to evict a tenant in residential housing must file a certification that the filing complies with the federal CARES Act.  Amended ¶ 21(b) provides that any complaint filed after December 1, 2021, is subject to dismissal if the certification is not provided.  In addition, new ¶ 21(d) provides that any action for eviction of a residential tenant based on nonpayment of rent filed after December 1, 2021, must include a notice concerning the availability of Vermont Emergency Rental Assistance Program (VERAP) funds.  The notice must be in the form provided in Appendix D.  If the notice is not provided and not corrected within 30 days, the court may dismiss the case and the tenant may request to reschedule the rent escrow hearing.  Finally, when there is sufficient evidence that the tenant has applied for VERAP funds, the court has discretion to take appropriate action in fashioning a rent escrow order or a writ of possession.

The full Order and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 11-4-21

This Order was promulgated on November 4, 2021, effective immediately.

The Court has further amended A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

To facilitate planning, allow for continued flexibility in operations, and maintain public health during the ongoing COVID-19 pandemic, the effective date of the Administrative Order is extended to March 1, 2022. The Court will continue to amend provisions of the order as necessary to respond to changing public-health conditions.

The Administrative Order is amended to provide the Board of Bar Examiners with authority to establish health and safety protocols for an in-person bar examination. To protect the health and safety of applicants and staff, the Board may, among other things, require masking and social distancing, and proof of vaccination and a negative COVID-19 test result. Applicants will be provided with these protocols in advance and will be asked to leave or denied entry if they refuse to comply.

The full Order and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 10-14-21

This Order was promulgated on October 14, 2021, effective immediately.

Paragraph ¶ 2 is amended to extend the effective date of AO 49 until January 1, 2022, to allow for continued flexibility in court operations to respond to the course of the COVID-19 pandemic.

Paragraph 22 is amended to add pleading provisions regarding foreclosure proceedings affecting one-to-four-unit residential properties filed between August 31, and December 31, 2021. These provisions are required to satisfy amendments of Regulation X promulgated by the Federal Consumer Financial Protection Bureau (CFPB) requiring foreclosure plaintiffs in these cases to attest to compliance with CFPB requirements prior to filing for foreclosure. The CFPB amendments were designed to assist mortgage borrowers affected by the COVID-19 emergency. The final regulation establishes temporary procedural safeguards to help ensure that borrowers have a meaningful opportunity to be reviewed for loss mitigation before the servicer can make the first notice or filing required for foreclosure on certain mortgages. 12 C.F.R. § 1024.41 (eff. Aug. 31, 2021).

There is a new form, Appendix C, which tracks the language of the amended rule and has boxes to check specifically indicating compliance with, or exemption from, the requirements. Because of the need for uniformity, the required certification must be in the form reflected in Appendix C.

The full Order and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 9-01-21

This Order was promulgated on September 1, 2021, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

Based on the climbing COVID-19 infection rate and projections of public-health experts concerning the course of the pandemic, ¶ 2 is amended to extend the effective date of Administrative Order 49 until November 1, 2021.

Paragraphs 5 and 7 are amended to address the limited number of courthouses that do not have adequate ventilation systems to accommodate unrestricted in-person hearings. To maintain court operations and respond to evolving ventilation standards, the Court Administrator is authorized to identify these as limited-entry courthouses. Hearings in limited-entry courthouses must be scheduled for remote participation unless the Court Administrator has identified courtrooms that can accommodate small in-person proceedings consistent with applicable standards. Courts must prioritize high-priority proceedings, including proceedings involving litigants who do not have access to adequate remote technologies to participate remotely. These spaces remain safe for judiciary employees working in-person due to specific mitigation measures for staff workspaces, including portable air filtration units, distancing of workspaces, tracking of employee vaccination status, and/or mask requirements where appropriate. This amendment does not impact the Court Administrator’s existing authority to impose restrictions on court operations based on challenges relating to staffing and security. Paragraph 7 is amended to establish the restrictions on public entry to limited-entry courthouses.

Paragraph 6 regarding email filing and service is amended in light of the implementation of electronic filing at the Supreme Court on August 17, 2021. Under revised ¶ 6(a), if the 2020 Vermont Rules for Electronic Filing require a method of filing or service, those rules must be followed. When the Efiling rules do not apply, the existing provisions regarding email filing and service are amended to also include the Supreme Court. Former ¶ 6(d) and (e), which previously described the email filing and service requirements for the Supreme Court, are deleted. Because of this deletion, ¶ 6(f) and (g) are relettered (d) and (e).

Paragraph 8, which suspends strict enforcement of the timelines for responding to requests for court records, is amended to explicitly include administrative as well as case records. The ongoing COVID-19 pandemic impacts the Judiciary’s ability to respond to requests for both case and administrative records.

The full Order and other updates regarding COVID-19 and court operations are available at vermontjudiciary.org/covid19.

 

Administrative Order No. 52 – Pilot Project for Remote Civil Jury Trials

This Order was promulgated on August 3, 2021, effective immediately.

Administrative Order 52 establishes a pilot project for remote civil jury trials. In response to the global COVID-19 pandemic, the Vermont Judiciary deployed remote technology to facilitate operations while maintaining public health. To promote access to justice and timely resolution of civil disputes, the Judiciary examined ways that remote video technology could be used on a more permanent basis. A committee comprised of judiciary personnel and members of the bar examined the feasibility of conducting remote civil jury trials. In response to recommendations from that committee, the Supreme Court implemented this pilot project, which establishes a time-limited, voluntary project whereby, with the parties’ agreement, courts may conduct civil jury trials through remote video. The Court also adopted Remote Civil Jury Trial Protocols, which were recommended by the committee and detail the procedures for a remote civil jury trial.  The pilot project established by this administrative order extends until August 12, 2022, unless extended by the Court.

 

Order Promulgating Amendments to Administrative Order No. 50

This Order was promulgated on August 3, 2021, effective immediately.

Administrative Order No. 50, originally promulgated in August 2020, created a pilot project to serve defendants more efficiently in cases where the Office of Child Support (OCS) is providing services under federal law. The pilot project began in Windham and Windsor Units and this amendment expands the pilot to Caledonia and Orange Units.

 

Administrative Order 51- Efiling in the Supreme Court

This Order was promulgated July 13, 2021; effective July 16, 2021.

Pursuant to 2020 V.R.E.F. 1(d), Administrative Order No. 51 authorizes efiling to commence in the Supreme Court on August 17, 2021, consistent with the 2020 Vermont Rules for Electronic Filing, as amended on July 13, 2021.

Information regarding how to efile is available on the judiciary website https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-access/electronic-filing

 

Emergency Order Amending V.R.A.P. 1, 3, 4, 5, 5.1, 6, 9, 10, 11, 12, 13, 14, 21, 24, 25, 26, 27, 28, 30, 30.1, 31, 32, 34, 39, 44, 45, 45.1

This Order was promulgated July 13, 2021; effective August 17, 2021.

The Vermont Judiciary is transferring to a new internal electronic case management system (CMS), entitled Odyssey, and at the same time implementing electronic filing through Odyssey File and Serve (OFS). The CMS and OFS are now being used in the judicial bureau and all the superior courts. Both the CMS and OFS will go live for the Supreme Court in August 2021. Many changes to the appellate rules are required to accommodate electronic filing, electronic case files, and electronic case management. The rule amendments were developed through the work of a subcommittee, which included members of the civil, family, and criminal rules committees, as well as a Vermont Bar Association appointee. The rules were reviewed by the Electronic Filing Rules Committee, the Civil Rules Committee, and the Criminal Rules Committee before being recommended for promulgation.

In recognition of the move to electronic filing and electronic records, the rules omit the use of the word “paper” in favor of “document” throughout and remove the requirements to send paper copies in V.R.A.P. 27, 30, and 31. The rules contain a definition for the Appeal Volume in V.R.A.P. 1, which is a PDF created by the Supreme Court that complies the PDF documents from the electronic case file in the superior court. As the courts transition to the CMS, some trial court cases have paper as well as electronic files. The appeal volume contains only the PDF documents and does not include media files. The rules also update the printed case rule, V.R.A.P. 30, to specify when one is required and when it is optional.

There is a new provision on how to cite to the record in V.R.A.P. 28. The formatting provisions in V.R.A.P. 27 and 32 are updated for optimal viewing of documents in electronic form.  The changes also clarify where to file documents and when the entry fee is due on appeal, especially regarding appeals by permission (V.R.A.P. 5, 5.1, and 6). The amendments seek to provide uniformity by incorporating the requirements for certifying service in the civil and efiling rules in V.R.A.P. 25.

In addition to the changes related to efiling and electronic case management, the amendments include some changes to conform the rules to current practice. The rules related to video-recorded proceedings are deleted because superior court proceedings are all audio-recorded. The proposal clarifies the rule regarding briefs in a cross-appeal in V.R.A.P. 28, and stipulations to extend the time for briefing in V.R.A.P. 26.  The use of outdated language like “in forma pauperis” and “pro bono” is omitted from V.R.A.P. 10.

Some amendments provide uniformity with the Rules for Public Access to Court Records. The changes clarify clerk review at the Supreme Court in V.R.A.P. 25, public access for agency files on appeal in V.R.A.P. 13, and public access to oral arguments in V.R.A.P. 34.

 

Emergency Order Amending 2020 V.R.E.F. 1, 3, 5, 6, 7, and 10

This Order was promulgated July 13, 2021; effective July 15, 2021.

The efiling rules are amended to make them applicable to the Supreme Court, with limited exceptions in recognition of different practice at the Supreme Court.  New Rule 1(d) establishes that efiling will commence in the Supreme Court when the Court issues an administrative order. The order must be made with enough time for the Court Administrator to give at least 30 days’ notice to the Vermont Bar of the Court order and provide instructions on how to efile.  As in the trial courts, efiling will be mandatory pursuant to Rule 3(a) unless an exception applies pursuant to Rule 3(b)-(d). The amended rules provide for some differences in the Supreme Court. For example, self-represented litigants may discontinue efiling under Rule 3 by providing notice to the Supreme Court and the parties in the case, and the required format for motions in Rule 5 is not as extensive. Clerk review of filings under Rules 5 and 6 is applicable in the Supreme Court, but filings can be rejected for a limited list of items.

As indicated below, Administrative Order 51 is promulgated simultaneously with these amendments to authorize efiling in the Supreme Court to begin on August 17, 2021.

 

Emergency Order Amending § 2 of Administrative Order No. 41

This Order was promulgated June 30, 2021; effective immediately.

Section 2 of A.O. 41 is revised to extend the renewal deadline for the 2021-2023 reporting period to accommodate attorneys who may be having technical issues completing the renewal through the recently implemented online attorney portal.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 6-25-21

This Order was promulgated June 25, 2021; effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

This amendment to Administrative Order 49 responds to the high vaccination rate in Vermont, and the corollary low COVID-19 infection rates.  It reflects a significant step in the direction of a return to “normal.”  At the same time, the Court is aware that significant numbers of Vermonters remain unvaccinated, and vulnerable individuals remain at risk.  Because many individuals do not choose to be engaged in judicial proceedings, because court proceedings often require people to remain in close proximity to others for extended periods of time, and because some Judiciary buildings do not have the air-handling capacity to accommodate large groups of people consistent with public health guidance, some continued changes in Judiciary operations are in order.  In addition, some of the changes the Judiciary has adopted during this Judicial Emergency are worth sustaining beyond the course of the COVID-19 pandemic.

The amendment extends this Administrative Order until September 7, 2021, but the extension does not imply that every provision in this iteration of Administrative Order 49 will remain in place until that time.  The Court will continue to amend the Order as necessary to adapt to ever-changing conditions. Extending this Administrative Order will enable the Judiciary to transition in an orderly way to a “new normal,” making permanent, with or without alterations, some of the rules and practices adopted during this Judicial Emergency.  

Paragraph 3(a) is amended to reflect that the extent to which a plan for jury trials must account for social distancing may evolve as infection rates continue to drop.  New ¶ 3(c) is added to allow prospective and seated jurors to use devices when authorized by the court during a remote jury trial.

The amendment deletes expired portions of ¶ 5(d) of the Administrative Order relating to mandatory hearings, which are now obsolete.

New ¶ 5(e) directs the Special Advisory Committee for Remote Hearings to make recommendations to the respective divisional rules committees for permanent rule changes to the rules governing remote participation in court proceedings.  Remote proceedings will continue to be a critical part of court operations beyond this Judicial Emergency, and our rules and processes must evolve to reflect that fact.

New ¶ 6(g) directs the Advisory Committee on the Rules of Civil Procedure to propose a permanent rule change to authorize non-efilers to file documents with the courts by email, and to consider whether a permanent rule amendment relating to electronic service on or by non-filers is advisable.  

The language of former ¶ 7, governing access to court buildings, is replaced effective July 5, 2021.  Given the considerations set forth above, including the ongoing limitations in air handling in some Judiciary spaces, the Court Administrator retains the authority to adopt reasonable restrictions and requirements regarding public access to Judiciary buildings, including requirements relating to screening, masks and social distancing.   

The amendment to ¶ 13 of Administrative Order 49 relating to court-ordered mediation directs the relevant rules committees to consider whether changes to their rules relating to remote participation are warranted in light of the dramatically increased reliance on remote technologies in the Judiciary, but also in the public at large, over the past year.  

Paragraph 14 of Administrative Order 49, which related to work locations, is deleted as no longer necessary.  

Paragraph 15(h) is amended to direct court committees, boards, and commissions to review their respective rules to determine whether any changes are warranted in light of the experiences of the last 15 months.  

Paragraph 18 of the Administrative Order, which related to the July 2020 bar exam, and paragraph 19 of the Administrative Order, which deferred the deadline for payment of the lawyer relicensing fee in 2020, are deleted.  Both provisions are now obsolete.

Paragraphs 21 and 22 of the Administrative Order are amended to direct the Advisory Committee on the Rules of Civil Procedure to consider whether any changes to the civil rules beyond the duration of ¶¶ 21 and 22 of Administrative Order 49 are warranted in light of federal statutes and regulations relating to evictions and foreclosures.

The full Order and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

 

Order Promulgating Amendments to Rules 7 and 56, and abrogating Rule 78 of the Vermont Rules of Civil Procedure

This Order was promulgated June 7, 2021; effective August 9, 2021.

These amendments consolidate and modernize provisions of the civil rules governing motions. Amended Rule 7(b) provides a procedure for responding not only to a motion for summary judgment under V.R.C.P. 56, but to all dispositive motions, including motions to dismiss for untimely service or filing of the complaint under V.R.C.P. 3, for judgment on a claim or on the pleadings under V.R.C.P. 12(b) or (c), for judgment as a matter of law under V.R.C.P. 50(a), for default judgment under V.R.C.P. 55(a), or any other motion that may result in dismissal of all or part of a claim without trial.  The amended rule provides a 30-day response period for all dispositive motions for consistency with the existing response period for motions under V.R.C.P. 56(b) in response to a summary judgment motion. The response period for nondispositive motions, as well for motions under new V.R.C.P. 56(c)(5), responding to a Rule 56(b) response, is 14 days. The amendment clarifies that the court may allow a surreply memorandum if it would assist in clarifying the issues. The amendment also addresses oral argument the award of fees and costs.

V.R.C.P. 56(c)(5) is added to make clear that a reply to a memorandum in opposition to a motion for summary judgment, as provided in the simultaneous amendment to V.R.C.P. 7(b)(4), is available.

 V.R.C.P. 78 is abrogated. Former Rule 78(a) required the Presiding Judge of each superior court to establish “motion days” at regular intervals. The rule is no longer consistent with practice in the superior court as currently constituted. Former paragraphs 78(b)(1) and (2) have been revised and reorganized in new V.R.C.P. 7(b)(5) and (6).

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 5-12-21

This Order was promulgated on May 13, 2021, effective immediately.

The Court has further amended A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

Paragraph 2 is amended to extend the effective date of the Administrative Order until July 5, 2021, based on the projections of public-health experts concerning the course of the pandemic. Although the Court will make amendments to the Administrative Order as conditions change, at least some provisions of the Administrative Order will continue to be necessary due to the ongoing impacts of the COVID-19 pandemic.

Paragraph 5(d) is amended to lift the existing requirement for mandatory remote hearings effective June 14, 2021. By this date, individuals will have had an opportunity to become fully vaccinated. The Court anticipates that some hearings will continue to be held remotely after remote hearings are no longer mandatory and even after the conclusion of the judicial emergency. Amending the order now gives judges, court staff, parties, and their lawyers adequate time to plan for the possibility of in-person court proceedings.

 

Order Abrogating and Replacing Rule 16 of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on May 3, 2021, effective July 5, 2021.

New Rule 16 adopts essential character and fitness eligibility requirements that affirmatively state the abilities needed to become a licensed lawyer. These requirements provide a clear framework to guide applicants and the Character and Fitness Committee in the determination of whether an applicant has the requisite moral character and fitness to practice law in the state.

 

Order Promulgating Amendments to Rule 6(b) of the Vermont Rules for Public Access to Court Records, Rules 4(c) and 10 of the Vermont Rules Governing Qualification, List, Selection and Summoning of All Jurors, Rule 24(a)(2) of the Vermont Rules of Criminal Procedure, and Rule 47(a)(2) of the Vermont Rules of Civil Procedure

This Order was promulgated on April 14, 2021, effective June 14, 2021.

The amendment to Rule 6(b)(19) clarifies the confidentiality of responses by potential jurors to questionnaires completed in determining qualification for service. The addition of this exception to the rules for public access accompanies contemporaneous amendments of a number of other procedural rules, including Rules 4 and 10 of the Rules Governing Qualification, List, Selection and Summoning of All Jurors, which provide for questionnaires to potential jurors to determine qualification and eligibility for service and circumstances of access to content, as well as V.R.C.P. 47(a) and V.R.Cr.P. 24(a), which primarily govern access to juror questionnaire information by parties and their attorneys for purposes of jury selection. The amendments remedy inconsistencies among the existing rules as to the specific juror questionnaire content that is publicly accessible. The amended rules provide that most content of juror responses to questionnaires is accessible to attorneys and parties in the case for which the juror may be chosen to serve. However, except for the name and town of residence of potential jurors, information on the questionnaire is not publicly accessible, absent a judicial determination of good cause for the disclosure. The amendments clarify that there is no bar to disclosure of information contained in a questionnaire in the jury selection process itself, in interrogation of potential jurors, and in the exercise of challenges by attorneys and self-represented parties.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 4-8-21

This Order was promulgated on April 8, 2021, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The April 8 amendment gives courts flexibility during the judicial emergency to move criminal and civil jury trials to venues that can accommodate jury trials consistent with public-health recommendations.  The Chief Superior Judge and Court Administrator have authorized several court buildings in the State for jury trials and the Judiciary anticipates that the number of locations approved for jury trials will continue to grow. However, some court buildings will likely not be cleared for jury trials under existing public-health guidelines due to physical space restrictions that prevent compliance with current social-distancing guidelines, considerations relating to their ventilation systems, or both. As a result, under current pandemic conditions, some counties have no courthouses suitable for jury trials. In other counties, although a courthouse may be approved for jury trials, the demand for criminal and civil jury trials is far greater than can be accommodated in that courthouse. This amendment enables the Chief Superior Judge to ensure that parties in criminal and civil proceedings have access to jury trials in courthouses that can accommodate those proceedings in as timely a way as possible. The Judiciary continues to prioritize jury trials in criminal cases in which the defendant has been detained pretrial, but courts may set civil cases as back-up to scheduled criminal cases where appropriate. Civil litigants are encouraged to agree to six-person civil jury trials in those court buildings that are authorized by the Chief Superior Judge and the Court Administrator for six-person jury trials.

The full Order and other updates regarding the Coronavirus Disease 2019 (COVID-19) and court operations are available at www.vermontjudiciary.org/covid19.

 

Promulgation Order Adding Rule 73 to the Vermont Rules of Probate Procedure

This Order was promulgated on April 5, 2021, effective June 7, 2021.

Rule 73 is added to implement 14 V.S.A § 118, added by Act 195, Acts of 2017 (Adj. Sess.), § 2, providing for referral of a Probate Division matter to the Civil Division, with the consent of the Civil Division.

 

Promulgation Order Adding Rule 11(a)(3) to the Vermont Rules of Criminal Procedure

This Order was promulgated on April 5, 2021, effective June 7, 2021

Rule 11(a)(3) is added to conform to the Court’s direction in In re Benoit, 2020 VT 58, __ Vt. __, __ A.3d __. In Benoit, the Court held that with the State’s agreement and the trial court’s approval, defendants may preserve a post-conviction relief (PCR) challenge to a predicate conviction when pleading guilty to an enhanced charge by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a PCR petition, specifying the convictions to be challenged, and stating the basis for the challenges. Under the proposed language, if a defendant pleads guilty or nolo contendere while preserving the PCR claim, with the consent of the state and the approval of the court, the plea will be analogous to a conditional plea under V.R.Cr.P. 11(a)(2). The present amendment prescribes the procedure by which a defendant may preserve such a challenge for post-conviction review.

 

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 3-8-21

This Order was promulgated on March 8, 2021, effective March 15, 2021.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

Paragraph 2 is amended to extend the effective date of the Administrative Order until May 31, 2021, based on the projections of public-health experts concerning the course of the pandemic.

Paragraph 3(a), which previously suspended jury trials in civil cases until at least January 1, 2021, is deleted. The resumption of civil and criminal jury trials is governed by former ¶ 3(b), requiring court-by-court authorization of the Chief Superior Judge and the Court Administrator based on various specified factors. 

Paragraph 6, regarding filing and service by email, is amended to reflect that the provisions of the 2020 Vermont Rules for Electronic Filing govern service by and to attorneys in all Superior Courts as of March 15, 2021.

Paragraph 23 is amended to authorize the Board of Bar Examiners to administer the July 2021 UBE by remote means.

Added ¶ 24 amends Vermont Rule of Civil Procedure 68 to allow plaintiffs to make offers of judgment as previously provided in the rule only for defendants. The Advisory Committee on the Rules of Civil Procedure proposed the emergency amendment.

The full Order and other updates regarding the Coronavirus Disease 2019 (COVID-19) and court operations are available at [https://www.vermontjudiciary.org/about-vermont-judiciary/covid-19-and-court-operations]

 

Order Promulgating Amendments to § 1 of Administrative Order No.29, Advisory Committee on Rules for Family Proceedings

This Order was promulgated on March 8, 2021; effective immediately.

Administrative Order 29, § 1 is amended to decrease the composition of the committee from seventeen to sixteen members by reducing the number of lawyers in private practice on the committee from four to three. The additional lawyer member was added in December 2017 and the current amendment reestablishes the committee size that existed prior to that amendment.

 

Emergency Order Abrogating 2010 Vermont Rules for Electronic Filing and Amending Administrative Orders 44 and 45

This Order was promulgated on March 8, 2021, effective March 15, 2021.

The 2010 Vermont Rules for Electronic Filing were enacted to coincide with the implement-ation of eCabinet in Vermont in 2010. That electronic filing system is now replaced by Odyssey File and Serve, which is implemented throughout the state and uses the updated 2020 Vermont Rules for Electronic Filing.

Administrative Orders No. 44 and No. 45 are amended to update their provisions consistent with the implementation of the Odyssey electronic case management and electronic filing system throughout Vermont and the abrogation of the 2010 Vermont Rules for Electronic Filing. Amended A.O. 44 requires all attorneys on active and pro bono emeritus status and those admitted pro hac vice to register and maintain and update up to three email addresses in the eCabinet system. Newly admitted attorneys and attorneys who change to active or pro bono emeritus status must also register. As detailed in A.O. 45, the superior courts, the Supreme Court, the Judicial Bureau, and the judicial boards are authorized to use these email addresses to send notices, orders, and other documents to attorneys.

 

Order Promulgating Amendments to V.R.C.P. 80.1(f) and 80.5(e)

This Order was promulgated on March 8, 2021; effective May 12, 2021.

The amendment to Rule 80.1(f) updates a cross-reference to V.R.C.P. 55 setting forth the appropriate procedure to be followed in proceedings by default against a minor or incompetent defendant.

 

Order Promulgating Amendments to Rules 2(a)(2) and 4.0(b)(2)(3)(B) of the Vermont Rules for Family Proceedings

This Order was promulgated on March 8, 2021; effective May 12, 2021.

Rules 2(a)(2) and 4.0(b)(2)(3)(B) are amended for consistency with the amendments to V.R.C.P. 3.1, which eliminated all reference to “in forma pauperis” and replaced it with “waiver of filing fee and service costs.”

 

Emergency Order Amending Rules 2, 4, and 11 of the 2020 Vermont Rules for Electronic Filing

This Order was promulgated on February 22, 2021; effective March 15, 2021.

These amendments are intended to clarify aspects of efiling registration, service, and certification of service.  The amendments are in response to feedback provided by system users and judges and will be effective on March 15, 2021, the date that electronic filing will be implemented in the remaining counties in the state.  

Rule 2 is amended in two ways.  The definition of “service contact” in amended Rule 2(k) provides a more detailed explanation of the types of service contacts that are used in the efiling system, and the source of the “public list,” which is the primary reference for serving another party through Odyssey File and Serve.  Rule 2(l) is added to provide a definition of “submission agreement.”  A submission agreement is how efilers certify compliance with Rule 5(b)(5) and (6) (regarding nonpublic information) and amended Rule 11(g)(3) (regarding service requirements). The submission agreement appears as certification “boxes” that must be checked to proceed with electronic filing.

Rule 4(b)(3) is amended to clarify that an efiler must enter a current service contact email address as a condition of registration, and to further require immediate updating of a changed service contact address.

Rule 11 is amended in several ways to clarify aspects related to service and certification of service.  Rule 11(d) describes the method of service among efilers. Amended paragraph 11(d)(1) clarifies that service of electronic filings between efilers must be made using the electronic filing system by choosing the “File and Serve” function and selecting the party from the Public List.  Amended paragraph 11(d)(2) allows agreements among efilers for alternative methods of service, and further prescribes the conditions of such agreements.  

Rule 11(g) is amended to clarify how to certify service in the efiling system and to detail the circumstances where a separate certificate of service, complying with either V.R.C.P. 5(h) or V.R.P.P. 5(e), is required. Amended paragraph (g)(1) provides that all efilers must certify compliance with service requirements through a submission agreement.  Where all parties are efilers, the submission agreement suffices to certify service.  Amended paragraph (g)(2) addresses the efiler’s obligation to file an additional certificate of service when serving: (A) a party who is not required to efile and has not elected to efile; (B) a party who has failed to provide a service contact; or (C) a party with whom the efiler has an agreement for an alternative method of service under subparagraph (d)(2).

Revised Rule (g)(3) prescribes the content of the required submission agreement certification as to service. The certification details that, for any filing that must be served, the efiler has included a certificate of service complying with paragraph (g)(2), and that any remaining parties have service contacts and have been served through the efiling system File and Serve function.

Comments on these emergency amendments should be sent by April 23, 2021, to Hon. John A. Dooley (Ret.), Chair of the Special Advisory Committee on Rules for Electronic Filing, at the following address:

 

Hon. John A. Dooley (Ret.), Chair

John.Dooley@vermont.gov

 

Order Promulgating Amendments to 8(c) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on February 1, 2021; effective August 2, 2021.

Rule 8 is amended to remove the cure provision in 8(c)(4) that allowed applicants with law degrees from non-common law countries to establish equivalency by completing a qualifying LLM at an ABA-approved law school. This change is based on the Board’s experience that the applications from such applicants consume an excessive amount of administrative and Board time and the bar exam passage rate for these applicants is generally low. Notably, most other states do not have a comparable rule.

 

Emergency Order Extending Effective Date for Amendments to Administrative Order No. 9, Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program

This Emergency Order was promulgated on January 25, 2021; effective immediately.

The effective date for the amendments to Administrative Order No. 9, Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program, promulgated on November 2, 2020, effective February 1, 2021, have been extended until April 1, 2021.

The date to file the report required by the November 2, 2020 order has also be extended until April 2023.
 

 

Order Promulgating Amendments to Rules 2(a), 7(f), 9(c), 12(a), and 15(c) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on January 5, 2021; effective March 8, 2021.

Rule 2(a)(6) and (7) are added to broaden the definition of “actively engage in the practice of law” and specifically allow law professors and qualified arbitrators and mediators to be eligible for admission without examination. New Rule 2(a)(8) contains a catchall provision.

Rule 7(f) is amended to remove the requirement in former 7(f)(2)(A)(v) that Law Office Study registrants submit their six-month reports in duplicate, as this is no longer administratively necessary and places a burden on registrants.

Rule 9(c)(5), which details the eligibility requirements to sit for the UBE prior to graduation, is amended to require that applicants take the academic instruction necessary to prepare for the UBE and are approved by their law school to sit for the UBE prior to graduation. The time in which an early examination applicant must submit proof of graduation is increased to accommodate applicants who sit for the July bar and graduate at the end of the following fall semester.

Rules 12(a)(1) and 15(c) are amended to make the first-year CLE requirement consistent with recent changes to the Rules for Mandatory Continuing Legal Education.  Specifically, the prior distinction between live and self-study in 12(a)(1) is replaced with the distinction between Moderated Programming, Non-Moderated Programming with Interactivity as a Key Component, and other.  Further, the minimum number of hours of programming that is Moderated or Non-Moderated with Interactivity as a Key Component is increased from 6 to 9.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on December 22, 2020, effective immediately.

Paragraph 5(d) of Administrative Order 49, concerning remote hearings, is amended to establish a presumption that, with some exceptions including jury trials and evidentiary hearings in juvenile and criminal matters, hearings in the Superior Court will be scheduled for remote participation by parties, witnesses, and other participants. The order previously dictated that hearings should be scheduled for remote participation “to the maximum extent possible.” Due to the rising incidence of COVID-19 throughout Vermont, the amendment minimizes gatherings of people within courtrooms by providing for remote participation consistent with constitutional and rule limitations. If there is good cause, the court on its own initiative may schedule the hearing for partial or full in-person participation. In addition, the parties may object to participating remotely, or to other parties or witnesses participating remotely based on the factors outlined in V.R.C.P. 43.1, including the available technology in the court, the participants’ access to adequate means for remote participation, and the nature of the hearing.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on December 4, 2020, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

A.O. 49 ¶ 2 is amended to further extend the judicial emergency and effective date of the Administrative Order to March 31, 2021. The extension is necessary based on the need to alter court operations to respond to the ongoing dynamic nature of the pandemic and to provide enough notice to court staff and court users regarding scheduling and operations.

Paragraph 3 is amended to clarify the process for deciding when courts can hold jury trials. As previously indicated in the order, criminal jury trials are not formally suspended, and civil jury trials will not be suspended after January 1. Under the revised language superior courts seeking to hold a jury trial must secure the approval of the Chief Superior Judge and the Court Administrator before summoning jurors and holding a jury trial. The amendment identifies a host of factors to be considered by the Court Administrator and Chief Superior Judge to ensure that the necessary steps are taken to protect trial participants and public health, and that the Judiciary has adequate staffing to support a proposed jury trial.

Paragraph 5, concerning remote participation in hearings is amended to address hearings in the judicial bureau. New ¶ 5(c) gives the judicial bureau express authority to preside remotely and requires all participants to appear by remote means, either by video or audio conference.  In recognition of the ongoing public health and safety concerns caused by the pandemic, in-person hearings are postponed, and all hearings will be conducted by remote means (audio or video, in the discretion of the judicial officer). Prior ¶ 5(c) is renumbered as ¶ 5(d).

Finally, ¶ 7(a)(ii) is amended to clarify that pretrial service coordinators are among the participants authorized to enter the courthouse to participate in a hearing that has not been suspended or ordered to be heard remotely.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on November 24, 2020, effective immediately.

Paragraph 23 is added to expressly authorize the Board of Bar Examiners (BBE) to administer the February 2021 Uniform Bar Examination (UBE) by remote means.  This standard UBE exam will be prepared by the NCBE and scored in the same manner as the UBE is usually scored for in-person administrations.

Paragraph 7(a) concerning access to court buildings is amended to clarify that judicial officers, judiciary employees, contractors, and authorized volunteers are permitted to enter courthouses.

 

Order Promulgating Amendments to Administrative Order No. 9, Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program

This Order was promulgated on November 2, 2020; effective February 1, 2021.

Vermont’s Professional Responsibility Program has long focused on prevention and education as much as on disciplinary prosecution. Assisting attorneys to achieve professional competence is as critical to an effective system of attorney regulation as investigating and prosecuting violations of the Rules of Professional Conduct. Proactive regulation serves to protect the public and instill confidence in the profession while promoting professionalism and civility.

The amendments to A.O. 9 establish a Bar Assistance Program within the purview of the Professional Responsibility Board. The program will continue to provide guidance and educational programs on “traditional” legal ethics and professional responsibility. In addition, the Bar Assistance Program will assist by:

  • developing programs to educate judges, lawyers, legal professionals, law students, and the public on issues related to professional competence, professional responsibility, legal ethics, law practice management, and behavioral health issues that impact the practice of law;
  • developing programs that promote lawyer wellness and educate judges, lawyers, legal professionals, and law students on issues related to the signs, symptoms, causes, and prevention of behavioral health issues that affect professional competence and impact the practice of law; and
  • helping impaired lawyers and judges to begin and continue recovery.

The amendment assigns Bar Counsel with the responsibility for operating the Bar Assistance Program. Although Bar Counsel will continue to respond to ethics inquires, Bar Counsel will not have any role in screening formal disciplinary complaints. The amendment assigns this task to Screening Counsel. The proposed rules contain a confidentiality provision, specifying that information related to the operation of the Bar Assistance Program is confidential except for a limited list of exceptions.

 

Order Promulgating Amendments to Rules 26(c) and 34(b) of the Vermont Rules of Civil Procedure

This Order was promulgated on October 6, 2020; effective December 7, 2020.

The amendment to Rule 26(c)(2), regarding protective orders, adds the phrase, “for the discovery or disclosure,” for uniformity with the language of Federal Rule 26(c)(1)(B). Although, unlike the Federal Rule, disclosure is not mandatory under V.R.C.P. 26, the term is included because a scheduling order could require a disclosure.

The amendment to Rule 34(b) adds language from F.R.C.P. 34(b)(2)(B) permitting the production of copies of requested material, rather than their inspection. The language was added to the Federal Rule in 2015 “to reflect the common practice.” The amendment departs from the Federal Rule by providing that the requesting party may obtain inspection of the originals on a showing of “a reasonable need”—for example, a legibility issue not resolvable in a copy.