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comports with statutory amendments. 23 V.S.A. §§ 2201-2207, referred to in the former rule as the “Traffic Act,” were repealed per 2015, No. 47, § 38. The offenses and tickets formerly covered under the repealed statutes were placed under the jurisdiction of the Judicial Bureau and subject to enforcement under 4 V.S.A. Chapter 29, under procedural rules promulgated by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 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 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.