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

Proposed Amendment to V.R.Cr.P. 54(a)(2)

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comports with statutory amendments. 23 V.S.A. §§ 2201-2207, referred to in the former rule as the “Traffic Act,” were repealed per 2015, No. 47, § 38. The offenses and tickets formerly covered under the repealed statutes were placed under the jurisdiction of the Judicial Bureau and subject to enforcement under 4 V.S.A. Chapter 29, under procedural rules promulgated by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

In consequence, references to proceedings under the “Traffic Act” in Rule 54(a)(2) are deleted.

Comments on this proposed amendment should be sent by December 18, 2017, to the Hon. Thomas A. Zonay, Chair of the Criminal Rules Committee, at the following address:

Honorable Thomas A. Zonay, Chair
Advisory Committee on Rules of Criminal Procedure
Vermont Superior Court
Caledonia Unit
1126 Main Street, Suite 1
St. Johnsbury, VT 05819
Thomas.zonay@vermont.gov

Proposed Amendments to V.R.C.P. 45

The proposed amendments to Rule 45 were made at the request of the Civil Division Oversight Committee to conform the rule to current practice and to assure uniformity among the clerks’ offices.

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

The proposed amendment to Rule 45(a)(4) simplifies language and provides for prior or simultaneous service on the parties to avoid warning the witness before the parties can act. The proposed amendment to Rule 45(b)(1) adds the requirement that witness fees be tendered with the subpoena to avoid issues of enforcement that might arise in the event of later nonpayment.

The proposed amendment to Rule 45(f)(3)(A) clarifies the application of the interstate deposition and discovery provisions of the rule to lawyers not admitted in Vermont and unrepresented litigants.

The proposed amendment to Rule 45(f)(3)(B) incorporates the provisions of former Rule 45(f)(6), substituting “motion” for “application” for consistency with the general provisions of the Rules and adding the requirement that the practice on such motions is limited to Vermont-admitted lawyers because they are adversary proceedings.

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

The proposed amendment to former Rule 45(f)(6) deletes the rule because it is now incorporated in Rule 45(f)(3)(B).

Comments on this proposed amendment should be sent by December 18, 2017, 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

Proposed Amendment to V.R.Pr.C. 1.7 and 1.8

The proposed amendment deletes Comment 12 to Rule 1.7 due to the simultaneous proposal to add Rule 1.8(j), which explicitly precludes a lawyer from having a sexual relationship with a client unless a consensual sexual relationship existed when the client-lawyer relationship began.

The proposed amendment to Rule 1.8(j) adds a prohibition on sexual relations between a lawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced. The proposed amendment to Comment 17 clarifies that the rule applies to all sexual relationships formed after the commencement of the professional client-lawyer relationship, including consensual sexual relationships and sexual relationships in which there is no prejudice to the client’s interests in the matter that is the subject of the professional relationship. In such instances, a lawyer must withdraw from continued representation. See V.R.Pr.C. 1.16(a)(1). The proposed addition of Comment [18] provides guidance on sexual relationships that pre-date the commencement of the client-lawyer relationship. The proposed amendment renumbers former Comment [18] as Comment [19] and clarifies that the conflict created by Rule 1.8(j) is personal for purposes of imputation. See V.R.Pr.C. 1.10.

The proposed new rule 1.8(j) tracks Rule 1.8(j) of the ABA Model Rules of Professional Conduct. Vermont joins 31 other states in adopting a specific prohibition on client-lawyer sexual relationships. The proposed amendment is a “bright-line” rule that recognizes the serious risk to a client’s interest in receiving candid, competent, and conflict-free legal advice that is presented when the professional relationship turns sexual. Further, the proposed amendment is consistent with the fact that at least 18 of Vermont’s other licensed professions have adopted rules that specifically ban sexual relationships between a licensee and a client, patient, or person with whom the licensee has a professional relationship.

Comments on this proposed amendment should be sent by December 18, 2017, to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Office of Bar Counsel
32 Cherry Street, Suite 213
Burlington, VT 05401
Michael.kennedy@vermont.gov

Proposed Amendment to V.R.C.P. 80.6

Rules 80.6(c)(3) and (e)(1), as previously amended September 20, 2017, effective January 1, 2018, are proposed to be further amended to bring the filing deadlines to 30 days for both parties. The proposed amendments simplify the process and relieve the Judicial Bureau staff of some work in having to explain and justify the different deadlines to litigants.

The proposed amendment to Rule 80.9(b)(3) as previously amended September 20, 2017, effective January 1, 2018, would conform the rule with the simultaneous amendment of Rule 80.6(c)(3).

Comments on this proposed amendment should be sent by November 27, 2017, 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

Proposed Order Abrogating and Replacing V.R.C.P. 79.2

The proposed amendment abrogates and replaces V.R.C.P. 79.2. The current rule focuses primarily on the recording of court proceedings by news media using conventional cameras and audio equipment for broadcasting or publication. The proposed rule reflects extensive advances in technology that place the ability to record and transmit images and sound in the hands of any person in a courthouse or courtroom with a smartphone or other portable electronic device in his or her pocket.

The rule was developed by a special committee composed of judges, court staff, members of all of the Supreme Court procedural rules committees, and representatives of the media.  Virtually identical rules will replace V.R.P.P. 79.2 and V.R.Cr.P. 53.

Comments on this proposed amendments should be sent by September 18, 2017, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Order Abrogating and Replacing V.R.A.P. 35

The proposed amendment abrogates and replaces V.R.A.P. 35 consistent with the simultaneous amendment to V.R.C.P. 79.2. Rule 35 incorporates the policies and language of V.R.C.P. 79.2, except where the Supreme Court structure and proceedings are different from those in the superior court.

Comments on this proposed amendments should be sent by September 18, 2017, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Order Promulgating Administrative Order No. 46

The proposed A.O. 46 provides for the administrative implementation and performance standards for V.R.A.P. 36, V.R.C.P. 79.2, V.R.Cr.P. 53, and V.R.P.P. 79.2 governing the use of electronic devices in the court.

Comments on this proposed amendments should be sent by September 18, 2017, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Amendments to Rule 5 of the Vermont Rules of Criminal Procedure

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

Comments on this proposed amendment should be sent by August 7, 2017, to Hon. Thomas Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following address:

Honorable Thomas A. Zonay, Chair
Advisory Committee on Rules of Criminal Procedure
Vermont Superior Court
Caledonia Unit
1126 Main Street, Suite 1
St. Johnsbury, VT 05819
Thomas.Zonay@vermont.gov

Proposed Amendment to Rule 11.1 of the Vermont Rules of Criminal Procedure

The proposed amendment to Rule 11.1 reflects changes necessitated by enactment of Act 133 of 2015 (Adj. Sess.), which expressly prescribes the consequences resulting from the court’s failure to provide the defendant with notice of collateral consequences. The proposed amendment also clarifies that the Rule is of application only to convictions for violation of
18 V.S.A. § 4230(a) and not for all offenses prescribed by § 4230.

Comments on this proposed amendment should be sent by August 7, 2017, to Hon. Thomas Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following address:

Honorable Thomas A. Zonay, Chair
Advisory Committee on Rules of Criminal Procedure
Vermont Superior Court
Caledonia Unit
1126 Main Street, Suite 1
St. Johnsbury, VT 05819
Thomas.Zonay@vermont.gov

Proposed Amendment to Rule 44.2 of the Vermont Rules of Criminal Procedure

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

Comments on this proposed amendment should be sent by August 7, 2017, to Hon. Thomas Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following address:

Honorable Thomas A. Zonay, Chair
Advisory Committee on Rules of Criminal Procedure
Vermont Superior Court
Caledonia Unit
1126 Main Street, Suite 1
St. Johnsbury, VT 05819
Thomas.Zonay@vermont.gov

Proposed Amendments to Rules 9(d) and (e) and 10(b) of the Vermont Rules for Mandatory Continuing Legal Education

The proposed amendments to Section 9(d) and (e) change its 10- and 15-day time periods to 14 days, consistent with the proposed “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to proposed amendments of V.R.C.P. 6.

The proposed amendment to Section 10(b) changes its 15-day time period to 14 days, consistent with the proposed “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to proposed amendments of V.R.C.P. 6.

Comments on this proposed amendment should be sent by August 7, 2017, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

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

Proposed Day is a Day (Appellate, Civil, Criminal, Environmental, Family, Juror, Probate, and Small Claims)

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

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

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

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

Comments on the proposed rule amendment and or the proposed form changes should be sent by July 10, 2017, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

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

 

Proposed Order Amending Canon 4 § H(2) of Administrative Order No. 10, Vermont Code of Judicial Conduct and Proposed Amended Extra Judicial Income Form

      The proposed amendment to Canon 4 § H(2) clarifies that in addition to reporting compensation received as a result of extra-judicial activities, a judge is required to report income, including that from passive investments.  The revised section states that disclosure is required for rental income and income from accounts and investments individually valued over $5,000 or gifts and debts owed in excess of $500. The revision also requires a judge to disclose the place of employment of the judge’s spouse or cohabiting partner.

      The proposed amended Extra Judicial Income Form incorporates these changes.

      Comments on the proposed rule amendment and or the proposed form changes should be sent by June 23, 2017, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

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

Proposed Order Amending Rule 3 of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

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

Comments on these proposed amendments should be sent by May 19, 2017 to Keith J. Kasper, Esq., Chair of the Board of Bar Examiners, at the following address:

Keith J. Kasper Esq.
McCormick, Fitzpatrick, Kasper & Burchard, P.C.
P.O. Box 638
Burlington, Vermont 05401-0638
kjk@mc-fitz.com

Proposed Order Amending Rule 47(d) of the Vermont Rules of Probate Procedure

The proposed amendment to Rule 47(d) amends the rule to conform to current practice.  The amendment also deletes language that is unnecessary and inappropriate.

Comments on these proposed amendments should be sent by April 10, 2017, to the Hon. Jeffrey Kilgore, Esq., Chair of the Probate Rules Committee, at the following address:

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

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

These proposed amendments to Rule 26(b) clarify its provisions regarding identification and deposition of an expert who may testify and bring them more closely in line with comparable provisions of the Federal Rules of Civil Procedure.  The proposed amendments have added numbering and make the provisions clearer and consistent with the remainder of the rule. 

THE COMMENT PERIOD ENDED ON MARCH 13, 2017.

Proposed Order Amending Administrative Order No. 10

The proposed amendment to section B(1) of the “Application of the Code of Judicial Conduct” removes the exemption for financial reporting for continuing part-time judges, which the Terminology section [3] defines as including “judges of probate and assistant judges.” The proposed amendment would require continuing part-time judges to submit a financial disclosure form to make their sources of income more transparent.

THE COMMENT PERIOD CLOSED ON FEBRUARY 6, 2017.