Vt. Memo to the Bar, June 14, 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: Promulgated and Proposed Rule Amendments and Miscellaneous Information

DATE: June 14, 2018

For your information, please find the following information:

• Order Promulgating Amendments to Rules 7(c), 9(b)(1), 11, 12(a), and 13(b) and (e) of the Vermont Rules of

Admission to the Bar of the Vermont Supreme Court

• Order Promulgating Amendments to Rule 17(a) of the Vermont Rules of Criminal Procedure

• Order Promulgating Amendments to Rule 23(d) of the Vermont Rules of Criminal Procedure

• Order Promulgating Amendments to Rule 42 of the Vermont Rules of Criminal Procedure

• Order Promulgating Amendments to Rule 44.2(b) of the Vermont Rules of Criminal Procedure

• Order Promulgating Amendments to Rule 45 of the Vermont Rules of Civil Procedure

• Order Promulgating Amendments to Rules 3 and 5(e) of the Vermont Rules of Civil Procedure and Rule

25(a)(2)(C) of the Vermont Rules of Appellate Procedure

• Proposed Order Promulgating Conforming Amendments to V.R.C.P. 79.1(e), V.R.F.P. 15(e), V.R.P.P. 79.1(d),

and V.R.A.P. 45.1(e)

• Proposed Order Promulgating Amendments to Rule 4(a) of the Vermont Rules of Admission to the Bar of the

Vermont Supreme Court

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

a. Order Promulgating Amendments to Rules 7(c), 9(b)(1), 11, 12(a), and 13(b) and (e) of the

Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated June 13, 2018; August 13, 2018.

The amendment to Rule 7(c) allows for all institutions of higher education whose accreditor has

been approved by the U.S. Department of Education (DOE) to satisfy the law office study (LOS)

educational requirement. The amendment to Rule 7(c) also allows an applicant with an

undergraduate degree from a foreign jurisdiction to satisfy the education requirement, provided the

applicant can establish that such degree is equivalent to a bachelor’s degree from a DOE-approved

institution.

The amendments to Rules 9(b)(1), 11, and 13(e) ensure consistency and clarity with regards

to the permitted age of UBE and MPRE scores. The amendment to Rule 9(b)(1) clarifies that

applicants must be active attorneys to waive the five-year limitation and that Board approval is

not necessary for such a waiver. Also, the amendment to Rule 9(b)(1) allows for an extension to

the time limitation for good cause.

The amendment to Rule 11 clarifies that the triggering date for the time limit for the age of

the MPRE score is the date the applicant achieves a passing UBE score, consistent with the

prior Board’s Notes. Also, the amendment to Rule 11 allows for an extension to the time

limitation for good cause.

The amendment to Rule 12(a)(1) makes the time period to take the first-year CLE courses for

admittees by examination consistent with the corresponding time period for admittees without

examination in Rule 15. The amendment to Rule 12(a)(2) clarifies that for good cause the Board

can grant an extension to the time limit for satisfying the first-year mentorship requirement.

The amendment to Rule 13(e) imposes a one-year outer limit for the MPRE score, consistent

with the outer limit in Rule 11, and allows for an extension to the time limitation for good cause.

The amendment to Rule 13(b) specifically permits concurrent applications for admission by

transferred UBE score, meaning that an applicant can apply to sit for the UBE in a UBE

jurisdiction other than Vermont and at the same time apply for admission by transferred UBE

score to the Vermont bar, although the UBE score has not yet been earned.

b. Order Promulgating Amendments to Rule 17(a) of the Vermont Rules of Criminal

Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018.

The amendment Rule 17(a) expands the categories of persons who are authorized to issue

subpoenas in criminal proceedings, either for attendance of witnesses or for production of

documentary evidence and objects. This subdivision was amended effective February 20, 2017 to

clarify that a subpoena is provided by the clerk, but actually issued by a judicial officer, subject

to certain notice of rights on the part of persons subject to subpoena to object thereto, and the

procedures for doing so. The amendment provides that subpoenas in criminal cases may now be

issued either by a judicial officer, a court clerk, or a member of the Vermont bar. The

amendment is intended to facilitate issuance of subpoenas in criminal cases, consistent with a

defendant’s Compulsory Process guarantees, subject to the existing provisions of the rule

establishing protections for persons and records that are the subject of subpoenas. The

amendment is also intended to establish greater conformity with V.R.C.P. 45(a)(3), which has

long provided that subpoenas in civil proceedings may be issued by either a judicial officer, a

court clerk, or an attorney.

c. Order Promulgating Amendments to Rule 23(d) of the Vermont Rules of Criminal

Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendment

to Rule 23(d) is in response to the Supreme Court’s decision in State v. Breed, where the Court

outlined the better practice when there may be a delay after the jury has been chosen but before

trial. The rule is divided into three paragraphs. Paragraph (d)(1) requires that consent to a delay

of commencement of trial must be by a signed writing filed with the court or in open court.

Paragraph (d)(2) requires that after a delay of more than 24 hours, the court must provide an

appropriate instruction. Paragraph (d)(3) clarifies that parties are entitled to supplemental voir

dire on issues arising from the separation but must initiate a request.

d. Order Promulgating Amendments to Rule 42 of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendments

to Rule 42, governing contempt process, reorganize and substantively amend the rule in three

instances. A provision is added for notice to the defendant of the maximum penalty that may be

imposed upon conviction. To facilitate appearance of counsel and assignment of counsel to

represent the indigent defendant, a requirement is added to provide notice of the right to be

represented by counsel and to make application for assignment of counsel. Specific provision is

also made for the mode of appointment of a prosecuting attorney.

e. Order Promulgating Amendments to Rule 44.2(b) of the Vermont Rules of Criminal

Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendment

to Rule 44.2(b) 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.

f. Order Promulgating Amendments to Rule 45 of the Vermont Rules of Civil Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The 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 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 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 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 amendment to Rule 45(f)(3)(A) clarifies the application of the interstate deposition and

discovery provisions of the rule to attorneys not admitted in Vermont and unrepresented litigants.

The 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

attorneys because they are adversary proceedings.

The 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).

Former Rule 45(f)(6) is deleted because it is now incorporated in Rule 45(f)(3)(B).

g. Order Promulgating Amendments to Rules 3 and 5(e) of the Vermont Rules of Civil

Procedure and Rule 25(a)(2)(C) of the Vermont Rules of Appellate Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018.

The amendment redesignates the present Rule 3 as Rule 3(a) and adds Rule 3(b) to provide a

“prisoner mailbox” procedure for the filing of a complaint in a civil action by an inmate confined

in an institution. The amendment is virtually identical to V.R.A.P. 4(f), adopted effective March

13, 2017.

Simultaneous amendments adding V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C) establish an

identical procedure for inmate filing of documents after the complaint that are required to be

filed by V.R.C.P. 5 and papers after the notice of appeal required to be filed by V.R.A.P. 25.

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND HAVE NOT

BEEN REVIEWED BY THE SUPREME COURT.)

a. Proposed Order Promulgating Conforming Amendments to V.R.C.P. 79.1(e), V.R.F.P.

15(e), V.R.P.P. 79.1(d), and V.R.A.P. 45.1(e)

The proposed amendments conform the rules with general revisions of Administrative Order

No. 41, governing Licensing of Attorneys, effective May 15, 2017. In the revision and restyling

of A.O. 41, former § 13, Admission Pro Hac Vice, is now designated as § 16 of A.O. 41.

Comments on this proposed amendment should be sent by August 13, 2018, to Emily

Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk

Vermont Supreme Court

109 State Street

Montpelier, VT 05609-0801

emily.wetherell@vermont.gov

b. Proposed Order Promulgating Amendments to Rule 4(a) of the Vermont Rules of

Admission to the Bar of the Vermont Supreme Court

The proposed amendments to Rule 4(a) add two members to the Character and Fitness

Committee. This change is being proposed to allow for more efficient processing of character

and fitness report reviews during high-need times and for more members to be available for

three-member panels.

Comments on this proposed amendment should be sent by August 13, 2018, to Andrew

Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel

Office of Attorney Licensing

Costello Courthouse

32 Cherry Street, Suite 213

Burlington, VT 05401

Andrew.Strauss@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.