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

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

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

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

Comments on these proposed amendments should be sent by June 10, 2019, to Allan Keyes, Chair of the Civil Rules Advisory Committee, at the following address:

Allan Keyes, Esq., Chair
Civil Advisory Rules Committee
Ryan Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05702 0310
ark@rsclaw.com

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

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

Comments on this proposed amendment should be sent by April 12, 2019, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel
Office of Attorney Licensing
Costello Courthouse
32 Cherry Street, Suite 213
Burlington, VT  05401
Andrew.Strauss@vermont.gov

Proposed Order Adding Rule 39 of the Vermont Rules of Probate Procedure

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

Comments on these proposed amendments should be sent by March 11, 2019, to the Hon. Jeffrey Kilgore, Chair of Advisory Committee on the Vermont Rules of Probate Procedure, at the following address:

Hon. Jeffrey Kilgore
Washington Probate Division
65 State Street
Montpelier, VT  05602
Jeffrey.Kilgore@vermont.gov

Proposed Order Amending Comment to Rule 1.1 of the Vermont Rules of Professional Conduct

This proposed amendment grew out of the work of the Vermont Commission on the Well-Being of the Legal Profession. This proposed amendment addresses behavioral health issues that adversely affect a lawyer’s fitness to practice. The proposed amendment urges lawyers to be cognizant of the toll that the profession can take on its members if behavioral health issues are ignored. The proposed amendment is intended to remind lawyers that their behavioral health can impact clients and the administration of justice, and to encourage lawyers to employ preventive strategies and self-care.

Comments on these proposed amendments should be sent by March 11, 2019, to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Professional Responsibility Program
32 Cherry Street, Suite 213
Burlington, VT  05401
Michael.Kennedy@vermont.gov

Proposed Order Amending Rule 10 of Administrative Order No. 9

This proposed amendment grew out of the work of the Vermont Commission on the Well-Being of the Legal Profession. The proposed amendment authorizes bar counsel to refer a disciplinary complaint to a lawyers’ assistance program, which is consistent with an approach that emphasizes prevention, self-care, and treatment. It is also consistent with bar counsel’s general authorization to seek to resolve matters via nondisciplinary methods or to refer complaints to nondisciplinary dispute resolution programs.

Comments on these proposed amendments should be sent by March 11, 2019 to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Professional Responsibility Program
32 Cherry Street, Suite 213
Burlington, VT  05401
Michael.Kennedy@vermont.gov

Proposed Order Amending Rules 55 and 80.1 of the Vermont Rules of Civil Procedure

The proposed amendment conforms Rule 55 to reflect the needs of current practice. The proposal deletes the requirement of subdivision (a) for a separate entry of default by the clerk in favor of a provision allowing the party seeking relief to file a motion for default judgment to initiate the process.

The proposed amendment to Rule 55(a) follows the federal rule by deleting “as provided by these rules,” so that an indication of an intent to defend, even if not in compliance with the rules, does not trigger a default.

The proposed amendment deletes the first sentence of Rule 55(b)(1) requiring an application to the court for a default judgment because it is superfluous in light of the provision for a motion added to subdivision (a). The proposed addition of a sentence to paragraph (1) makes clear that the party seeking a default judgment has the burden on the issue of minority and must disclose any information in that party’s possession on the issue of competency.

The proposed amendment to Rule 55(b)(2) eliminates the formal reference to entry of judgment by the clerk. The proposal changes the time for notice in Rule 55(b)(4) from five to seven days. The proposal makes other minor wording changes in Rule 55(b) and (c) for consistency.

The proposed amendment to Rule 80.1(c) provides consistency with the simultaneous proposed amendment of Rule 55(a).

Comments on these proposed amendments should be sent by February 19, 2019, to Allan Keyes, Esq., Chair of Advisory Committee on the Vermont Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05702 0310
ark@rsclaw.com

Proposed Order Amending Rule 41 of the Vermont Rules of Civil Procedure

At the request of the Civil Division Oversight Committee, the proposed amendments to Rule 41(a) and (b) reorganize the rule and conform it to current practice and eliminate outdated terminology.

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

The proposal separates provisions of former paragraph (a)(1) into new paragraphs (a)(2)-(6). Proposed new paragraph (a)(2) carries forward the provision of Rule 41(a)(1)(ii) that a stipulation of dismissal signed by all appearing parties may be filed at any time.  Proposed new paragraph (a)(3) carries forward the first and final sentences of former paragraph (a)(2) concerning dismissal by order of the court with a language clarification.  Proposed new paragraph (a)(4) is the second sentence of former paragraph (a)(2) concerning counterclaims, with a language clarification. Proposed new paragraph (a)(5), permitting dismissal of some or all claims, is carried forward without change from former paragraph (a)(1).  Proposed new paragraph (a)(6) carries forward the final sentence of former paragraph (a)(1) concerning adjudication on the merits.

The proposed amendment deletes former Rule 41(b)(1)(i), providing for involuntary dismissal of an action on a trial list that has been pending more than two years. The proposal renumbers former subparagraphs (b)(ii) and (iii) as (i) and (ii) and shortens their time periods to allow more expeditious elimination of stale actions.  Proposed language has been added in (b)(ii) to make clear that the shorter time periods may be extended by the court and that dismissal may be entered against defendants who have not been served, leaving the action pending against those who have been served.

Comments on these proposed amendments should be sent by February 19, 2019, to Allan Keyes, Esq., Chair of Advisory Committee on the Vermont Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05702 0310
ark@rsclaw.com

Proposed Amendment to Rule 77(e) of the Vermont Rules of Probate Procedure

The proposed amendment conforms Rule 77(e)(1) to the provisions of 14 V.S.A. § 2(c) as amended by Act 195 of 2017 (Adj. Sess.), §1.  The proposed amendment conforms Rule 77(e)(2) to a change in 14 V.S.A. §2 (e) also enacted by Act 195 of 2017 (Adj. Sess.), § 1, which provided that the prohibition of public inspection of the index of wills, like the prohibition of public inspection of wills, applies “during the life of the testator.” The proposed amended rule is intended to make clear that the death of a testator does not open the index to public inspection but authorizes the register to make the limited disclosure of information in it concerning a particular testator permitted by Rule 80.4(b).

Comments on this proposed amendment should be sent by January 7, 2019, to Hon. Jeffrey Kilgore, Chair of Advisory Committee on the Vermont Rules of Probate Procedure, at the following address:

Hon. Jeffrey Kilgore
Washington Probate Division
65 State Street
Montpelier, VT  05602
Jeffrey.Kilgore@vermont.gov

Proposed Addition of V.R.C.P. Rule 23(g)

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

Comments on this proposed amendment should be sent by March 23, 2018, to Allan Keyes, Esq., Chair of the Civil Rules Committee, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan, Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05202-0310
ark@rsclaw.com