Vt. Memo to the Bar, Jan. 24, 2018

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: Application for Service on Boards and Committees, Promulgated and Proposed Rule

Amendments, and Miscellaneous Information

DATE: January 24, 2018

For your information, please find the following information:

• Application for Service on Boards and Committees

• Order Promulgating Amendments to V.R.Pr.C. 1.7 and 1.8

• Order Promulgating Amendment to Administrative Order No. 29

• Proposed Addition of V.R.C.P. Rule 23(g)

• Proposed Amendments to V.R.C.P. 16.2 and 26

• Proposed Amendments to Vermont Rules of Civil Procedure, the Vermont Rules for Family Proceedings, and

the Vermont Rules of Probate Procedure

• Proposed Administrative Order No. 47

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. APPLICATION FOR SERVICE ON BOARDS AND COMMITTEES

If you would like to be considered for upcoming vacancies on a specific Vermont Supreme

Court committee or board, please complete the Application for Service on Boards and Committees.

Even if you completed this application in the past, please complete and return the form to be

considered for any upcoming vacancies.

II. PROMULGATED RULE AMENDMENT

a. Order Promulgating Amendments to V.R.Pr.C. 1.7 and 1.8

This Order was promulgated on January 8, 2018, effective March 12, 2018.

Rule 1.8(j) is added to prohibit sexual relations between a lawyer and client unless a consensual

sexual relationship existed when the client-lawyer relationship commenced. Comment [17] is

amended to clarify 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. Comment [18] is added to provide guidance on sexual relationships

that predate the commencement of the client-lawyer relationship.

Comment [12] to Rule 1.7 is deleted due to the simultaneous amendment to 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.

b. Order Promulgating Amendment to Administrative Order No. 29

This Order was promulgated on December 20, 2017, effective immediately.

The amendment increases the membership on the Advisory Committee on Rules for Family

Proceedings from sixteen members to seventeen members and clarifies the language regarding

the Superior Court clerk appointment.

III. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED BY THE

COMMITTEES OR BOARDS AND HAVE NOT BEEN REVIEWED BY THE SUPREME

COURT.)

a. Proposed Addition of V.R.C.P. Rule 23(g)

The proposed addition of Rule 23(g) provides for the disbursement of residual funds that

remain after satisfaction of all claims under a class action judgment or settlement.

Comments on this proposed amendment should be sent by March 23, 2018, 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

b. Proposed Amendments to V.R.C.P. 16.2 and 26

The proposed amendment to Rule 16.2 adds a reference to the use of a scheduling order

provided in the proposed simultaneous amendment of V.R.C.P. 26(b)(5)(A)(i)-(v) and conforms

the designation of the provisions of the rule to the format of other rules.

The proposed amendments to V.R.C.P. 26(b)(4) and (5) clarify their provisions and bring

them more closely in line with comparable provisions of the Federal Rules of Civil Procedure

and the realities of current Vermont practice. The proposed amendments to V.R.C.P. 26(b)(5)(A)

provide for automatic pretrial disclosure of all witnesses who will be offered as experts and the

nature of their expected testimony. The proposed amendment to V.R.C.P. 26(b)(5)(A)(i) adapts

language from the federal rule requiring automatic disclosure of all opinion witnesses qualified

and testifying as experts under V.R.E. 702, 703, and 705 who may be used at trial. This

disclosure requirement does not extend to lay opinion witnesses testifying under V.R.E. 701. The

proposed amendment to V.R.C.P. 26(b)(5)(A)(ii) departs significantly from both prior Vermont

practice and F.R.C.P. 26(a)(2) by giving the same treatment to witnesses retained or employed

solely to provide expert testimony and to fact witnesses with expert qualifications. The amended

rule provides a simplified report requirement for all categories of experts. The proposed

amendment to Rule 26(b)(5)(A)(iii) provides that the disclosures under subparagraphs (A)(i) and

(ii) must ordinarily be made by stipulation or a scheduling order under Rule 16.2. Otherwise, the

disclosures must be made by the earlier of the trial date or the date by which the case is to be

ready for trial, except that evidence attacking another party’s evidence must be made within 30

days of that party’s disclosure. The proposed amendments to Rules 26(b)(5)(A)(iv) and (v) adapt

the provisions of former Rules 26(b)(5)(A)(i) and (iii) to the disclosure requirements of amended

Rule 26(b)(5)(A). Minor conforming amendments have been made in Rules 26(b)(5)(B), (C),

and (E). No amendments have been made to Rule 26(b)(5)(D).

The proposed amendment to V.R.C.P. 26(e) adapts provisions of F.R.C.P. 26(e) as most

recently amended in 2007, and makes it consistent with the simultaneous amendments to

V.R.C.P. 26(b)(5). The new proposed V.R.C.P. 26(e)(1) follows the federal rule in spelling out a

general duty to supplement both a disclosure made under V.R.C.P. 26(b)(5) and a response to

other forms of discovery. The new proposed V.R.C.P. 26(e)(2) departs from the federal rule by

including party-deponents within the duty to supplement.

Comments on this proposed amendment should be sent by March 23, 2018, 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 Amendments to Vermont Rules of Civil Procedure, the Vermont Rules for

Family Proceedings, and the Vermont Rules of Probate Procedure

The proposed amendment to V.R.C.P. 43(a) reflects the fact that new Rule 43.1 and

proposed simultaneous amendments to the family and probate rules, permit testimony to

be presented by video or audio conference in appropriate circumstances. The proposed

amendment provides expressly that proceedings under Rule 43.1 are an exception to the

existing requirement that “testimony… shall be taken orally in open court” unless

otherwise provided by specific rules. That provision has been held to prohibit testimony

by telephone or other means except by agreement of the parties.

The proposed addition of V.R.C.P. 43.1 provides a uniform procedure and standards

for video or audio conference participation of parties and other necessary persons, as well

as testimony of witnesses, in civil actions and in the civil division of the superior court.

The proposed amendment to V.R.F.P. 17 deletes the present text of the rule and the adds

new subdivisions (a)-(d) providing that V.R.C.P. 43.1 applies in family division proceedings

other than juvenile proceedings under V.R.F.P. 1, subject to specific provisions for certain

statutory mental health and guardianship proceedings.

The proposed amendment to V.R.P.P. 43(b) reflects the fact that new V.R.C.P. 43.1,

promulgated simultaneously, is applicable in the probate division and permits testimony to be

presented by video or audio conference in appropriate circumstances. The proposed amendment

provides expressly that proceedings under V.R.C.P. 43.1 are an exception to the existing

requirement that “testimony. . . shall be taken orally in open court” unless otherwise provided

by specific rules.

Comments on these proposed amendments should be sent by March 23, 2018, 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

d. Proposed Administrative Order No. 47

Proposed Administrative Order No. 47 implements V.R.C.P. 43.1 and related rules that are

simultaneously promulgated to provide for video and audio conference participation of parties

and other necessary persons, as well as testimony of witnesses, in actions in the civil,

environmental, family, and probate divisions of the superior court. See V.R.C.P. 43.1(e),

Reporter’s Notes to simultaneous adoption of V.R.C.P. 43.1, and simultaneous amendments of

V.R.F.P. 17 and V.R.P.P. 43(b). The technical standards are adopted by administrative order

rather than by rule to permit more rapid and flexible change as necessary to take advantage of

changing technological capabilities.

Comments on this proposed amendment should be sent by March 23, 2018, 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

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.