The following Proposed Amendments are proposed by the Rules Committees and have not been reviewed by the Supreme Court.

 

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

The proposed amendments to Rule 6 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 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.

The proposed amendment to Rule 80.6(n) adds V.R.C.P. 43.1 to the list of civil rules that do not apply in judicial bureau proceedings.

Comments on these proposed amendments should be sent by August 29, 2022, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

 

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Adding Rules 9.2 and 9.3 to the Vermont Rules of Civil Procedure

Rules 9.2 and 9.3 are simultaneously proposed pursuant to the Supreme Court’s identical directives in Administrative Order No. 49 (A.O. 49), ¶¶ 21(e) and 22(h), that the Civil Rules Committee “review the current state of state and federal law concerning eviction [and foreclosure] proceedings and propose any necessary changes to the Civil Rules to take effect upon expiration of” that administrative order.

A.O. 49 ¶¶ 21 and 22 were originally added on July 23, 2020, to provide special pleading requirements for eviction and foreclosure proceedings and have been amended several times to reflect the changing financial and regulatory climate—most recently on February 7, 2022.

The two rules contain provisions related to federal appropriations for Vermont Emergency Rental Assistance (VERAP) and Vermont Homeowner Assistance Program (VHAP) funds, which are currently scheduled to expire on September 25, 2025. 15 U.S.C. §§ 9058c(g), 9058d(a). It is expected the Court will terminate all or part of Rules 9.2(b) and 9.3 earlier if funds are exhausted before that date and applications are no longer being accepted.

Comments on these proposed amendments should be sent by September 12, 2022, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

 

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Adding Rule 26.2 to the Vermont Rules for Criminal Procedure and Amending A.O. 47

Proposed new Rule 26.2 allows for video conference testimony in criminal proceedings, upon agreement of the parties and approval by the court. In contrast to the provisions of V.R.C.P. 43.1 and V.R.P.P. 43.1, video testimony under the proposed rule may not be provided over defendant’s objection, and absent express waiver, in recognition of the Sixth Amendment and Article 10 rights to confrontation and cross examination accorded to the accused. The proposed rule sets the timing and required content of a notice of intent to provide testimony of a witness via video conference. The proposal requires the court to address the defendant directly in open court and determine that the defendant understands the nature of the rights being waived. The proposed rule sets out the requirements for providing video conference testimony. Finally, the rule provides criteria for the court to consider if a party seeks to withdraw from agreement for testimony of a witness by video teleconference.

The proposed amendment to A.O. 47 § 1 incorporates the technical standards currently applicable in video and audio proceedings under V.R.P.P. 43.1 and V.R.C.P. 43.1 to proceedings under V.R.Cr.P. 26.2.

Comments on this proposed amendment should be sent by August 8, 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

 

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

The proposed amendment to Rule 1.2(c) would require that a client’s consent to a limited scope representation to be confirmed in writing. A proposed 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 proposed 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.

Proposed 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). A proposed amended 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. Proposed new comments 16 and 17 address paragraph (c)(5).

Proposed 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.

Proposed 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. Proposed 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 proposed 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 proposed amendment to Rule 4.4(b), regarding inadvertent receipt of data, replaces “document” with “information” and at the same time moves what was stated in comment [2] into the body of the rule, thereby clarifying a lawyer’s duties. Proposed 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 proposed 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 proposed 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 proposed addition of comment 22 to Rule 5.5, which concerns the unauthorized practice of law, addresses practice by lawyers working remotely. The proposed 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 proposal is consistent with an ABA opinion on lawyers working remotely and the decisions of several other jurisdictions.

The proposed 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 proposed 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).

Comments on these proposed amendments should be sent by July 11, 2022, to Michael Kennedy, Bar Counsel, Professional Responsibility Program, at the following address:

Michael Kennedy, Bar Counsel

Michael.Kennedy@vermont.gov

 

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

Missing media item.

The proposed 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.  

Comments on these proposed amendments should be sent by June 10, 2022, to Hon. Jeffrey Kilgore, Chair of the Advisory Committee on the Rules of Probate Procedure, at the following address:

Hon. Jeffrey Kilgore

Jeffrey.Kilgore@vermont.gov

 

Proposed Order Adding V.R.F.P. 1.1

Proposed 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.

Comments on these proposed amendments should be sent by July 11, 2022, to Hon. Michael Kainen, Chair of the Advisory Committee on the Rules for Family Proceedings, at the following address:

Hon. Michael Kainen, Chair

Michael.kainen@vermont.gov

 

Proposed Order Amending Rules 9(b) and 9(g)(1) of the Vermont Rules for Family Procedure

The proposed 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.

Comments on these proposed amendments should be sent by July 11, 2022, to Hon. Michael Kainen, Chair of the Advisory Committee on the Rules for Family Proceedings, at the following address:

Hon. Michael Kainen, Chair

Michael.kainen@vermont.gov

 

Proposed Order Amending V.R.A.P. 33.1 and 34

The proposed amendments to Rule 33.1 and 34 update 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 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 a good balance between service and cost to the client. Other respondents preferred argument in the courtroom and missed the formality of in-person argument. The majority of respondents indicated they would choose in-person for full-Court arguments and remote for hearings before a three-Justice panel.

Rule 33.1(b)(2) is added to default to remote oral argument before a three-Justice panel. An in-person oral argument is available under (b)(3) if the parties file a stipulation or a party files a motion and demonstrates good cause. Under new proposed Rule 34(c), the default is that oral arguments before the full Court are scheduled for in-person participation. A remote oral argument is available under (d) if the parties file a stipulation or a party files a motion and demonstrates good cause. In either case, the stipulation or motion must be filed by the deadline set for requesting oral argument. This advance notice is necessary so that the case can be properly calendared for in-person or remote hearing. An in-person hearing is not available when one party is incarcerated and self-represented.

Former 34(c)-(j) are redesignated (e)-(l).

Comments on these proposed amendments should be sent by June 20, 2022, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk

emily.wetherell@vermont.gov

 

Proposed Order Amending V.R.C.P.80.6(c)(4)

The proposed amendment to Rule 80.6(c)(4) replaces a statutory reference to 24 V.S.A. § 1977(a) rather than to 24 V.S.A. § 1979(c) because Rule 80.6(c)(4) provides for the issuance of municipal complaints rather than their hearing.  Thus, § 1977(a) is the appropriate statutory reference.

Comments on this proposed amendment should be sent by May 9, 2022, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Amending V.R.C.P. 79.1(e)

The proposed amendment to Rule 79.1(e) makes clear that admission pro hac vice is a matter of course on motion supported by the pro hac vice licensing card issued by the Court Administrator pursuant to A.O. 41, § 16. The card is issued on payment of fee and on the basis of the applicant’s certification that the applicant is not suspended or disbarred in any jurisdiction and is in good standing and admitted to practice in the applicant’s licensing state. The licensing card should be sufficient to let the court where the case is pending know that the applicant is in good standing and not subject to any discipline. The court retains control over the conduct of the out-of-state attorney and of the sponsoring attorney whose signature is on the motion and may revoke the admission for good cause.

Comments on this proposed amendment should be sent by May 9, 2022, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Amending 2020 V.R.E.F. 11(c)

The proposed amendment to Rule 11(c) would conform the rule to proposed 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.

Comments on this proposed amendment should be sent by February 14, 2022, to Hon. John A. Dooley (Ret.), Chair of the Special Advisory Committee on the Rules for Electronic Filing, at the following address:

Honorable John A. Dooley, (Ret.), Chair
Advisory Committee on the Rules for Electronic Filing
John.Dooley@vermont.gov

 

Proposed Order Amending V.R.C.P. 55 and 62

The proposed amendment to Rule 55 resolves for civil actions the problem that there is no requirement that the party who has obtained a default judgment serve a copy of that judgment on the party against whom the judgment was entered. The problem had been addressed in a 2020 series of amendments to the Vermont Rules of Small Claims Procedure. Proposed Rule 55(d) is added to make specific the responsibility of a party who has obtained a default judgment to serve a copy of the judgment on the defaulting party and file proof of such service.

Comments on these proposed amendments should be sent by February 14, 2022, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Amending Rule 66 of the Vermont Rules of Probate Procedure

The proposed amendments to Rule 66 reflect and clarify current practice regarding inventories and accounts.

Proposed Rule 66(b) is new. Rule 66(b)(1) contains a general requirement that an estate inventory must contain a description and value of the decedent’s assets and sets forth specific requirements for the content of inventories in the areas of real property, mobile homes, motor vehicles, firearms, and financial institution accounts. Former Rules 66(b) and (c) are redesignated (c) and (d) without change. New Rule 66(e) provides accounting standards consistent with 14 V.S.A. §§ 1055, 1057. Former Rules 66(d)-(f) are redesignated (f)-(h) without change.  Rule 66(i) is new. It spells out a process that enables a judge to deal with an inadequately prepared or presented inventory or account or other failure to comply with the provisions of Rule 66(a)-(h) by providing for their preparation “by a licensed professional with experience in fiduciary accounting.”

Comments on these proposed amendments should be sent by December 15, 2021, to Hon. Jeffrey Kilgore, Chair of the Advisory Committee on the Rules of Probate Procedure, at the following address:

Hon. Jeffrey Kilgore
Advisory Committee on the Rules of Probate Procedure
Jeffrey.Kilgore@vermont.gov

 

Proposed Amendments to Rules 9.1 and 55(c)(7) of the Vermont Rules of Civil Procedure and Rules 2(a), 3, and 8(c) of the Vermont Rules of Small Claims Procedure

The proposed amendments to V.R.C.P. 9.1 implement the recommendation of the Civil Division Oversight Committee that credit card debt collection actions and other actions brought by a debt-buyer rather than the original creditor be removed from small claims and brought in the civil division. Simultaneous amendments to V.R.C.P. 55(c)(7) and V.R.S.C.P. 2 and 3 are being proposed to accomplish this purpose.

The proposal is made based on the growing complexity of these cases, the inconsistency in how cases are handled by the lawyers serving as Acting Judges in small claims cases, and the difficulty of using lawyers as Acting Judges in these cases with the new case management system.  

The proposed amendment to Rule 8(c) eliminates the possibility of arrest as a result of contempt in small claims proceedings, in keeping with the goal of avoiding the imposition of such severe sanctions for failure to pay debts. See, e.g., https://www.aclu.org/report/pound-flesh-criminalization-private-debt.

Comments on these proposed amendments should be sent by October 19, 2020, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
ark@rsclaw.com

 

Proposed Order Amending Rule 807 of the Vermont Rules of Evidence

This proposed amendment responds to the Vermont Supreme Court’s decision in State v. Bergquist, 2019 VT 17, __ Vt. __, 211 A.3d 946, by correcting Rule 807’s constitutional deficiencies described therein. The proposed amendments to subdivisions (c) and (f) ensure the Rule comports with the minimum constitutional standard set in Maryland v. Craig, 497 U.S. 836 (1990), as interpreted in Bergquist.

In criminal cases, the rule balances an important public policy interest—protecting certain witnesses in defined, vulnerable categories, from the trauma of testifying—against the defendant’s constitutional right to confront accusers. To comport with the Sixth Amendment, as interpreted in Craig, the proposed amendment requires the court to make its findings at least by preponderance of the evidence, without precluding argument for the application of a stricter standard of evidence.  To make the showing of necessity for these proceedings, the proposal requires the State to 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.  

The proposed amendment to subdivision (a) corrects 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, 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.”

Comments on these proposed amendments should be sent by February 10, 2020, to Elizabeth Miller, Esq., Chair of the Advisory Committee on Rules of Evidence, at the following address:

Elizabeth Miller, Esq.
Dunkiel Saunders
91 College Street
Burlington, VT  05401
emiller@dunkielsaunders.com