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

Proposed Rules of Admission Abrogating and Replacing Rule 16

Proposed 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. Further, the American Bar Association has recommended that states adopt essential eligibility requirements to promote lawyer well-being by providing clear eligibility guidelines for lawyers with mental or physical impairments.

The definition of character and fitness in proposed new Rule 16(b) includes a provision making it clear that health conditions, including substance-use disorders or mental-health impairments, are relevant only so far as they impact the applicant’s present ability to meet the essential eligibility requirements.

Other than the new provisions noted above, the substance of the rule remains unchanged, although somewhat reorganized to incorporate the new provisions.

Comments on these proposed amendments should be sent by January 4, 2021, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel
Andrew.Strauss@vermont.gov

 

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

Proposed Rule 11(a)(3) is added, consistent with 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 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, specifically identifying the convictions they intend to challenge, 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.

Comments on this proposed amendment should be sent by December 7, 2020, to Hon. Thomas A. 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
Thomas.Zonay@vermont.gov

 

Proposed Order Amending V.R.C.P. 80.5(e)

The proposed amendment to Rule 80.5(e) reflects the fact that 23 V.S.A. § 1203(k), as amended by 2007, No. 153 (Adj. Sess.), § 2, now provides that in DUI cases the fee for video reproduction is $45.00.

Comments on this proposed amendment should be sent by December 7, 2020, 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 Rules 2(a), 7(f), 8(c), 9(c), 12(a), and 15(c) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

The proposed amendments to Rule 2(a) broaden the definition of “actively engage in the practice of law” to specifically allow law professors and qualified arbitrators and mediators to be eligible for admission without examination. A proposed catchall provision has also been added in 2(a)(8).

The proposed amendment to Rule 7(f) removes the requirement in former 7(f)(2)(A)(v) that Law Office Study registrants submit their six-month reports in duplicate.

The proposed amendment to Rule 8 removes 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.

The proposed amendment to Rule 9(c)(5), which details the eligibility requirements to sit for the UBE prior to graduation, requires that applicants take the necessary coursework for the UBE and are approved by their law school to sit for the UBE prior to graduation.

The proposed amendments to Rules 12(a)(1) and 15(c) make the first-year CLE requirements consistent with recent changes to the Rules for Mandatory Continuing Legal Education.

Comments on these proposed amendments should be sent by November 18, 2020, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel
Andrew.Strauss@vermont.gov

 

Proposed 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 Qualifications, 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

The proposed amendment to Rule 6(b)(19) clarifies the confidentiality of responses by potential jurors to questionnaires completed in determining qualification for service. The proposed addition of this exception to the rules for public access accompanies proposed contemporaneous amendments of a number of other procedural rules, including Rules 4 and 10 of the Rules Governing Qualifications, List, Selection and Summoning of All Jurors (which provide for questionnaires to potential jurors in determination of 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 voir dire in jury selection. The proposal also seeks to remedy inconsistencies among the existing rules as to the specific juror questionnaire content that is publicly accessible, and that which is not. In consequence of the proposed contemporaneous amendments, most content of juror responses to questionnaires related to service remains accessible to attorneys and parties in the case for which the juror may be chosen to serve. However, such information is not publicly accessible, absent a judicial determination of good cause for the disclosure. The proposed amendments clarify that as to public access, there is no bar to disclosure of information contained in a questionnaire in the voir dire process itself, in interrogation of potential jurors and in the exercise of challenges by attorneys and self-representing parties.

Comments on these proposed amendments should be sent by November 16, 2020, to Hon. Walter Morris, (Ret.), Reporter for the Advisory Committee on Rules of Criminal Procedure, at the following address:

Honorable Walter Morris (Ret.), Reporter
Advisory Committee on Rules of Criminal Procedure
Walter.Morris@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 Rules 2(a)(2) and 4.0(b)(2)(3)(B) of the Vermont Rules for Family Proceedings

The proposed amendments to Rules 2(a)(2) and 4.0(b)(2)(3)(B) are amended for consistency with the recent amendment of V.R.C.P. 3.1 eliminating all reference to “in forma pauperis” and replacing it with “waiver of filing fee and service costs.”

Comments on these proposed amendments should be sent by September 15, 2020, to Hon. Michael Kainen, Chair of the Advisory Committee on Rules for Family Proceedings, at the following address:

Hon. Michael Kainen, Chair
Windham Civil Division
PO Box 207
Newfane, VT  05345
Michael.Kainen@vermont.gov

 

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