Vt. MCLE Rule 8

(A) Basis for Suspension. An attorney’s license is subject to nondisciplinary, administrative

suspension if:

(1) the attorney was subject to reporting for the prior reporting period and submitted a

relicensing statement but failed to timely file either a certification of completion of the Rule 3

MCLE requirements or an acceptable makeup plan with the makeup plan filing fee;

(2) the attorney timely filed an acceptable makeup plan but failed to timely file a

certification of compliance with the makeup plan; or

(3) the Board determined, based on an audit, that the attorney failed to comply with the

Rules for a prior reporting period.

(B) Suspension Process.

(1) Notice. If the Board determines that an attorney is subject to license suspension under

(A), the Board will promptly notify the attorney of that fact, the basis for the suspension, and

the attorney’s obligations to respond to the notice per (B)(2). The notice will be given in writing

and sent to the attorney by certified or registered mail, return receipt requested. The Board’s

failure to send timely notice does not relieve the attorney of the duty to comply with the Rules.

(2) Response. Within 14 days of when the notice of suspension is sent, or later if the

Board extends the time for good cause, the attorney must respond by filing one of the

following with the Board:

(a) if the basis for the suspension is (A)(1), a form reflecting compliance or an

acceptable makeup plan and makeup plan filing fee;

(b) if the basis for the suspension is (A)(2), a certification of compliance with the

makeup plan;

(c) if the basis for the suspension is (A)(3), an acceptable makeup plan and makeup

plan filing fee; or

(d) a written answer to the Board’s notice of suspension.

(3) Failure to Respond; Admission of Noncompliance; Suspension. If an attorney fails to

timely respond to the Board's notice of suspension, or files an answer that admits

noncompliance, the attorney’s license to practice law in Vermont will be immediately

suspended on a nondisciplinary, administrative basis. The State Court Administrator or

designee will send notice of the suspension to the attorney by email and to the courts of the

State of Vermont.

(4) Hearing. If an attorney files a written answer under (2)(d) and does not admit

noncompliance, the Board will schedule a hearing within 30 days of the filing.

(C) Hearing Process. A hearing convened pursuant to (B)(4) will be conducted as follows:

(1) Panel. The hearing will be before a 3-member panel of the Board. At the

commencement of the hearing, one panel member will be designated as the presiding

member.

(2) Attorney’s Participation. The Board must provide the attorney with written notice of

the hearing. The attorney may appear and present information to substantiate compliance with

the Rules.

(3) Counsel. The attorney is entitled to be represented by counsel at the hearing. The

panel may appoint counsel to present evidence of the attorney’s noncompliance with the

Rules.

(4) Rules of Evidence; Subpoena Power.

(a) The Vermont Rules of Evidence apply, but evidence not admissible thereunder may

be admitted if it is of a type commonly relied upon by reasonably prudent persons in the

conduct of their affairs and not precluded by statute or privilege. All testimony must be under

oath administered by the presiding member of the panel.

(b) The Board may issue subpoenas or compel testimony.

(5) Hearing Closed. Unless the attorney requests otherwise, the hearing will be closed

except to members, agents of the Board, the attorney, and the attorney’s counsel and

witnesses.

(6) Recording of Hearing. The panel will record the hearing. If the panel finds that the

attorney has not complied with the Rules, it must produce a transcript of the hearing at the

Board’s expense.

(7) Expansion of Record. If, after the hearing, the panel seeks to expand the record to

consider additional evidence, it may do so after providing the attorney with notice and an

opportunity to be heard.

(8) Dismissal. At any time before the panel makes a decision pursuant to (D)(1), the Board

may, in its discretion, dismiss the proceeding if the Board finds that the attorney is in

compliance with these rules and that dismissal will serve the policy of these rules.

(D) Panel’s Decision After Hearing.

(1) Decision. After the conclusion of the hearing, or the time necessary to expand the

record, the panel will prepare a written decision setting forth its findings, conclusions, and

recommendations.

(2) Parties Served. The panel must serve its decision on the attorney and attorney’s

counsel and file a copy with the Supreme Court. The decision must inform the attorney of the

right to appeal.

(3) Right to Appeal; Supreme Court’s Review. The attorney has the right to appeal the

decision to the Supreme Court. The attorney’s notice of appeal must be filed within 30 days of

the date the decision is filed with the Supreme Court. Within 30 days of the date the decision is

filed, the Court may also order review of the decision on its own motion. If the attorney does

not file a timely notice of appeal and the Court does not order review on its own motion, the

panel decision will be final.

(4) Supreme Court Review. The Court may take any action consistent with its

constitutional authority. The Vermont Rules of Appellate Procedure apply to an appeal. If the

Court orders review on its own motion, it will specify the issue(s) to be addressed by the

parties. The Court may remand the decision to the Board, with appropriate directions for an

expanded record or additional findings, while retaining jurisdiction of the matter. The matter

will be continued pending the Court’s receipt of the requested expanded record or additional

findings.

(5) Appeal Public Record. The notice of appeal and all subsequent proceedings are public.

(6) Suspension. The attorney’s license will be immediately suspended on a

nondisciplinary, administrative basis as in (B)(3) if:

(a) the panel decision recommends suspension and there is no appeal or review

under (A)(3); or

(b) following appeal or review, the Supreme Court orders suspension.

This rule is drawn from the prior rules § 9(d)-(i), and (k), although

the suspension and hearing processes have been revised

substantially to fully lay out attorneys’ rights and obligations and

to make these processes consistent with the reporting process of

Rule 7(B) and with A.O. 41 and the Rules of Admission.

In the prior rule § 9, when faced with an attorney who does not

challenge the Board’s statement of noncompliance, the Board

could not suspend the attorney but could only make a

recommendation of suspension to the Supreme Court. In contrast,

the new rule parallels the suspension process in A.O. 41 and the

Rules of Admission, in which the authority to make the initial

suspension decision is given to the licensing authorities, in this

case, the Board. Like A.O. 41, the new rule makes it clear that any

suspension under these rules is a nondisciplinary, administrative

suspension.

The new rule follows the prior rule in allowing an attorney who

contests noncompliance to have an evidentiary hearing. The

hearing process in the new rule is based on the hearing process for

character and fitness hearings laid out in the Rules of Admission

and provides that the ultimate arbiter in cases where an attorney

contests noncompliance is the Supreme Court.

The Board notes that any action it may take in response to a

violation of this Rule does not deprive either Disciplinary Counsel

or the Professional Responsibility Board of pursuing such

disciplinary action as may also be warranted.