Vt. Memo to the Bar, Oct. 18, 2017

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

PATRICIA GABEL, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

patricia.gabel@vermont.gov 109 State Street

Montpelier, VT 05609-0701

Telephone (802) 828-3278

FAX: 802 828-3457

www.vermontjudiciary.org

TO: Members of the Vermont Bar

FROM: Patricia Gabel, State Court Administrator

RE: Promulgated, Emergency and Proposed Rule Amendments, and Miscellaneous

Information

DATE: October 18, 2017

For your information, please find the following information:

• Promulgation Order for V.R.Cr.P. 5(e)

• Promulgation Order for V.R.Cr.P.11.1

• Promulgation Order for A.O. 10, Application

• Promulgation Order for A.O. 10, Canon 4

• Promulgation Order Making V.R.A.P. 11(b)(3) Permanent

• Promulgation Order for V.R.P.P. 47(d)

• Emergency Promulgation Order for V.R.P.P. 52(b) and 60(c)

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

• Proposed Amendments to V.R.C.P. 45

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

• Proposed Amendment to V.R.C.P. 80.6

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

a. Promulgation Order for V.R.Cr.P. 5(e)

This Order was promulgated on October 17, 2017, effective December 18, 2017. The

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 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 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 provide 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.

b. Promulgation Order for V.R.Cr.P.11.1

This Order was promulgated on October 17, 2017, effective December 18, 2017. The

amendments to Rule 11.1 to reflect 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 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.

c. Promulgation Order for A.O. 10, Application

This Order was promulgated on October 17, 2017, effective February 1, 2019. The

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 amendment will now

require continuing part-time judges to submit a financial disclosure form to make their sources of

income more transparent. The rule change becomes effective February 1, 2019 to coincide with

the beginning of the terms for part-time judges.

d. Promulgation Order for A.O. 10, Canon 4

This Order was promulgated on October 17, 2017, effective December 18, 2017. The

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 rental income. The amendment to

Canon 4 § I adds a title and subdivision (1), which requires a judge to disclose any investment

over $5,000 in an entity appearing as a party before the judge.

e. Promulgation Order Making V.R.A.P. 11(b)(3) Permanent

This Order was promulgated on October 17, 2017, effective December 18, 2017. The

emergency amendment to Rule 11(b)(3) promulgated on March 9, 2015, effective April 10,

2015, has been made permanent. The emergency amendment had been made as part of the

Supreme Court’s effort to obtain cost savings in the operations of the clerk’s offices in all courts

by saving clerk time.

f. Promulgation Order for V.R.P.P. 47(d)

This Order was promulgated on October 17, 2017, effective December 18, 2017. The

amendment conforms Rule 47(d) to current practice regarding recording of court proceedings,

and deletes language that is unnecessary and inappropriate.

g. Emergency Promulgation Order for V.R.P.P. 52(b) and 60(c)

This emergency Order was promulgated on October 17, 2017, effective January 1, 2018.

These emergency amendments make changes to the day-is-a-day order. It further amends Rule

52(b), as amended September 20, 2017, effective January 1, 2018, to provide a 14-day time

period consistent with the basic purpose of the day-is-a-day amendments of the civil and probate

rules rather than the 28 days adopted initially for consistency with the comparable provisions of

the Federal Rules of Civil Procedure. The amendment to Rule 60(c), as amended September 20,

2017, effective January 1, 2018, is further amended to provide a 14-day time period consistent

with the basic purpose of the day-is-a-day amendments of the Civil and Probate rules rather than

the 28 days adopted initially for consistency with the comparable provisions of the Federal Rules

of Civil Procedure. Both changes reflect the significant differences between probate and civil

practice. Matters in probate court generally involve important personal concerns that could be

adversely affected by the additional extension of the time for appeal resulting from the longer

period. Moreover, there is less need in probate practice to be concerned with uniformity with the

Federal Rules.

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED BY THE

COMMITTEES AND HAVE NOT BEEN REVIEWED BY THE SUPREME COURT.)

a. 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

b. 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

c. 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

d. 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

III. MISCELLANEOUS

a. Court Forms

Court forms are constantly being updated. Please refer to the judiciary website for the most

up-to-date forms. https://www.vermontjudiciary.org/court-forms

b. Obligation under A.O. 41

Attorneys are reminded that an “attorney must report to the State Court Administrator within

thirty days any change of the office mailing or electronic mail address” and that “[n]otice sent to a

reported address is sufficient even if not received by the attorney because of failure to report the

proper address or failure of delivery not caused by the court.” A.O. 41, § 4(c); see A.O. 44, § 1.

Please email those changes to JUD.AttyLicensing@vermont.gov. Your cooperation is very

much appreciated.

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov

to your Safe Senders list.

c. eCabinet Registration

Administrative Order No. 44 requires attorneys in active status to register up to three email

addresses in eCabinet for purposes of receiving notices of hearing and other documents. You

may include staff email addresses in the three email addresses that you specify. eCabinet

registration is required whether you practice in court or not.

If you have already registered in eCabinet, the email address(es) you provided as part of that

process will be used.

If you have not already registered in eCabinet, please go to

https://efiling.eservices.crt.state.vt.us/, click Register Now, and follow the simple prompts.

Attorneys will need their attorney license numbers to register. Helpful information about the

Attorney Email Registration process is also available on the Electronic Filing page of the

judiciary website at https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-

access/electronic-filing. Please contact jud.helpdesk@vermont.gov or call the Helpdesk at 802-

828-4357 with any questions in the meantime.

You are also reminded that you are required to update the email address(es) and other contact

information you have registered as soon as there are any changes, including changes to staff

email addresses you may have included with your registration. To revise the information, please

go to https://efiling.eservices.crt.state.vt.us/, log into eCabinet, click “Account,” choose “My

Profile,” and make the necessary changes to your contact information.

Notification to JUD.AttyLicensing@vermont.gov or in eCabinet of a change to your contact

information does not automatically notify the other. It is your responsibility to notify both. If you

are a member of the Vermont Bar Association, you will also need to separately notify the VBA.