Vt. Memo to the Bar, Feb. 11, 2020

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, Esq., State Court Administrator

RE: Emergency Promulgated, Promulgated, Proposed Rules, List of Approved Financial

Institutions and Miscellaneous Information

DATE: February 11, 2020

For your information, please find the following information:

• Order Promulgating Emergency Amendment to the Application Section of the Vermont Code of Judicial Conduct

• Order Promulgating Amendments to Rule 6(15) and (26) of the Rules of the Supreme Court for Disciplinary

Control of Judges

• Order Promulgating Amendments to Rule 40(e)(4) of the Vermont Rules of Civil Procedure, Rule 27.1(b)(4) of

the Vermont Rules of Appellate Procedure, Rule 50(d)(4) of the Vermont Rules of Criminal Procedure, and Rule

40(d)(4) of the Vermont Rules of Probate Procedure

• Order Promulgating Amendment to Rule 62(a)(3)(A) of the Vermont Rules of Civil Procedure

• Order Promulgating Amendments to Rules 3, 7, 9, and 10 of the Vermont Rules of Small Claims Procedure

• Order Abrogating and Replacing the Vermont Rules for Mandatory Continuing Legal Education

• Order Promulgating Addition of Rule 6.2 to the Vermont Rules for Family Proceedings

• Proposed Order Amending Administrative Order No. 9, Permanent Rules Governing Establishment and

Operation of the Professional Responsibility Program

• Proposed Order Amending Rules 26, 34, and 78 of the Vermont Rules of Civil Procedure

• Proposed Order Amending Rule 4.3(b) of the Vermont Rules for Family Proceedings

• Proposed Administrative Order No. 48—Declaration of Judicial Emergency

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

a. Order Promulgating Emergency Amendment to the Application Section of the Vermont Code

of Judicial Conduct

This Order was promulgated on January 23, 2020; effective immediately.

The Application section is amended to exempt periodic part-time judges from Rule 3.15, which

requires judges to submit a public annual income report. Because periodic part-time judges serve

only sporadically, an annual report is both unnecessary and overly onerous. The emergency

amendment took effect immediately so that periodic part-time judges would not be required to

submit an income report for the 2019 calendar year.

Comments on this emergency amendment should be sent by April 13, 2020, to Emily Wetherell,

Deputy Clerk of 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. Order Promulgating Amendments to Rule 6(15) and (26) of the Rules of the Supreme Court

for Disciplinary Control of Judges

This Order was promulgated on February 10, 2020; effective April 13, 2020.

The amendments to Rule 6(15) and (26) update the cross references to the Code of Judicial

Conduct 2019, which became effective October 7, 2019.

c. Order Promulgating Amendments to Rule 40(e)(4) of the Vermont Rules of Civil Procedure,

Rule 27.1(b)(4) of the Vermont Rules of Appellate Procedure, Rule 50(d)(4) of the Vermont

Rules of Criminal Procedure, and Rule 40(d)(4) of the Vermont Rules of Probate Procedure

This Order was promulgated on February 10, 2020; effective April 13, 2020.

The amendments update the cross references to the Code of Judicial Conduct 2019, which became

effective October 7, 2019.

d. Order Promulgating Amendment to Rule 62(a)(3)(A) of the Vermont Rules of Civil Procedure

This Order was promulgated on February 10, 2020; effective April 13, 2020.

The amendment to Rule 62(a)(3)(A) deletes a comma after the word “chattel” in the second line

to eliminate an ambiguity regarding the timing of when an order for possession could be issued.

The change is meant to clarify that the 14-day limit applies to issuance of an order of possession as

well as to commencement of enforcement proceedings.

e. Order Promulgating Amendments to Rules 3, 7, 9, and 10 of the Vermont Rules of Small

Claims Procedure

This Order was promulgated on February 10, 2020; effective April 13, 2020.

Amended Rule 3, along with simultaneous amendments to Rules 7, 9, and 10 now requires that

the plaintiff serve the defendant with a small claims default judgment.

Under the existing rules, the court has no good address for the defendant and therefore only sends

a copy of the judgment to the plaintiff. However, Rule 7(a) provides for payment within 30 days of

“entry of judgment,” meaning the date that the judgment is docketed. If no such payment is made,

plaintiff may move for financial disclosure, and there is no requirement in Rule 7(a) that the

plaintiff prove that the defendant has received or seen the judgment. The plaintiff is only required to

file a certificate of service showing that the motion was sent to the defendant by regular mail. The

plaintiff may also seek trustee process or a writ of execution, or may file a judgment lien, before the

defendant knows of the judgment. V.R.S.C.P. 9. It is not until the next enforcement step (a motion

for contempt for not complying with whatever order comes out of the financial disclosure hearing)

that the plaintiff is required to have the sheriff personally serve the defendant. Even then, the

judgment itself is not served, only the judicial summons to come to the hearing. V.R.S.C.P. 8(b)(2).

Rule 10(a) presents a similar problem with appeals.

Accordingly, amended Rule 3(f) requires service by sheriff or other authorized person and the

filing of the return of service in every case before enforcement proceedings are taken. Amended

Rule 3(g) conforms to the amendment of Rule 3(f).

Amended Rule 7(a)(1)(A) and (c) conforms to the simultaneous amendment of Rule 3(f).

Amended Rule 9(a), (b)(1), and (c) incorporates the appropriate 30-day period provided in Rule

10(a)(1) as simultaneously amended. If the defendant has appeared, enforcement proceedings may

be undertaken within 30 days from the entry of judgment. If the judgment is a default judgment, the

date is 30 days from the date of service on the defendant. The latter provision is intended to

conform to the simultaneous amendment of Rule 3(f).

Amended Rule 10(a)(1) conforms appellate practice to the simultaneous amendment of Rule 3(f)

requiring service of a default judgment on the defendant before enforcement proceedings are

commenced.

f. Order Abrogating and Replacing the Vermont Rules for Mandatory Continuing Legal

Education

This Order was promulgated on February 10, 2020; effective July 1, 2020.

The 2020 amendments to the Rules for Mandatory Continuing Legal Education are

comprehensive and implement much of the ABA’s February 2017 Model Rule for Minimum

Continuing Legal Education.

Some of the changes include the following:

• Increasing the total number of credit hours per reporting period from 20 to 24.

• Replacing the prior distinction between live and self-study programming with three types of

programming and definitions of each.

• Requiring attorneys to complete one credit hour of attorney wellness and one of diversity

and inclusion programming in a reporting period.

• Adding a carryover provision so that attorneys can use excess credit from the second year of

the reporting period in the next reporting period.

• Providing the MCLE Board with the authority to audit attorneys.

g. Order Promulgating Addition of Rule 6.2 to the Vermont Rules for Family Proceedings

This Order was promulgated on February 10, 2020; effective April 13, 2020.

The addition of Rule 6.2 provides a single procedure for mental-health proceedings under 18

V.S.A. Chapters 179 and 181 (Involuntary Treatment); 18 V.S.A. § 8840 (Commitment to the

Commissioner for Custody, Care, and Habilitation); and 18 V.S.A. Chapter 215 (Guardianship

Services for People with Developmental Disabilities). The rule delineates which civil rules apply in

these proceedings, indicates the proper venue for these proceedings, addresses appointment of

counsel, and includes provisions on scheduling, discovery, and consolidation. The rule allows

electronic service and filing, either under existing means or pursuant to the 2020 Electronic Filing

Rules.

II. PROPOSED RULE AMENDMENTS

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

BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Amending Administrative Order No. 9, Permanent Rules Governing

Establishment and Operation of the Professional Responsibility Program

The proposed amendments to A.O. 9 establish a Bar Assistance Program within the purview of

the Professional Responsibility Board. The program will continue to provide guidance and

educational programs on “traditional” legal ethics and professional responsibility. In addition, the

bar assistance program will assist by:

• developing programs to educate judges, lawyers, legal professionals, law students, and the

public on issues related to professional competence, professional responsibility, legal ethics,

law practice management, and behavioral health issues that impact the practice of law;

• developing programs that promote lawyer wellness and educate judges, lawyers, legal

professionals, and law students on issues related to the signs, symptoms, causes, and

prevention of behavioral health issues that affect professional competence and impact the

practice of law; and

• helping impaired lawyers and judges to begin and continue recovery.

The proposal assigns Bar Counsel with the responsibility for operating the Bar Assistance

Program. Although Bar Counsel will continue to respond to ethics inquires, Bar Counsel will not

have any role in screening formal disciplinary complaints. The proposal assigns this task to newly

created Screening Counsel. The proposed rules contain a confidentiality provision, specifying that

information related to the operation of the Bar Assistance Program is confidential.

Comments on these proposed amendments should be sent by April 13, 2020, to Michael

Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel

Professional Responsibility Program

32 Cherry Street, Suite 213

Burlington, VT 05401

Michael.Kennedy@vermont.gov

b. Proposed Order Amending Rules 26, 34, and 78 of the Vermont Rules of Civil Procedure

The proposed amendment to Rule 26(c)(2), regarding protective orders, adds the phrase, “for the

discovery or disclosure,” for uniformity with the language of Federal Rule 26(c)(1)(B). Although,

unlike the Federal Rule, disclosure is not mandatory under V.R.C.P. 26, the term is included

because a scheduling order could require a disclosure.

The proposed amendment to Rule 34(b) adds language from F.R.C.P. 34(b)(2)(B) permitting the

production of copies of requested material, rather than their inspection. The language was added to

the Federal Rule in 2015 “to reflect the common practice.” See Federal Advisory Committee’s

Notes to 2015 Amendment.

The proposed amendment to Rule 78(b)(1) adds language taken from Rule 7(a)(3) of the Rules of

the United States District Court for the District of Vermont regarding the time for filing a memo in

opposition to a motion. The proposal changes the time to respond to a dispositive motion—for

summary judgment or dismissal—from 14 days to 30 days. The proposed 30-day response period

for all dispositive motions would provide consistency with the existing response period for motions

for summary judgment under V.R.C.P. 56(b), as well as with the District Court Local Rule.

Comments on these proposed amendments should be sent by April 13, 2020, to Allan Keyes,

Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Civil Rules Committee

Ryan Smith & Carbine, Ltd.

P.O. Box 310

Rutland, VT 05702 0310

ark@rsclaw.com

c. Proposed Order Amending Rule 4.3(b) of the Vermont Rules for Family Proceedings

The proposed amendment to Rule 4.3(b) deletes former paragraph (1) providing for a motion by a

nonparty for relief from a parentage judgment. The proposal also deletes references to that motion

in the caption and first sentence of subdivision (b), renumbers the amended first sentence as

paragraph (1), and deletes the now superfluous caption of paragraph (2).

Former Rule 4.3(b)(1) was added by amendment in 2017 as a narrow response to the concern

raised by the Supreme Court in Columbia v. Lawton, 2013 VT 2, 193 Vt. 165, 71 A.3d 1218, that

existing law, 15 V.S.A, § 302(a), prohibited such a nonparty action in the absence of a

constitutional claim. See Reporter’s Notes to 2017 Amendment. Subsequently, the Legislature

enacted the Vermont Parentage Act, 15C V.S.A. §§ 101-809, and repealed the prior statute involved

in Columbia. 2017, No 162 (Adj. Sess.), §§ 1, 2. The Act was effective July 1, 2018, § 6, and, per

§ 5, in certain proceedings before that date. The Vermont Parentage Act is a comprehensive

measure, setting forth procedural provisions and means of establishing parentage, and providing

requirements of standing and time limits for proceedings by nonparties challenging adjudications,

acknowledgements, and presumptions of parentage. Essentially, the Act renders obsolete former

Rule 4.3(b)(1).

Comments on these proposed amendments should be sent by April 13, 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

d. Proposed Administrative Order No. 48—Declaration of Judicial Emergency

Consistent with the Court’s administrative responsibilities under the Vermont Constitution,

proposed Administrative Order 48 effectuates the Court’s ongoing emergency planning. When there

is an emergency, the judiciary may be required to implement measures to ensure that litigants, staff,

and judiciary personnel can access and participate in judicial proceedings. This may include

modifying or suspending existing rules regarding time deadlines or the use of video, audio, or other

technologies.

Comments on this proposed order should be sent by April 13, 2020, to Emily Wetherell, Deputy

Clerk of 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

III. LIST OF APPROVED FINANCIAL INSTITUTIONS

a. List of Approved Financial Institutions

Rule 1.15B(a)(1) of the Vermont Rules of Professional Conduct requires lawyers to maintain their

trust accounts only in financial institutions approved by the Professional Responsibility Board.

Financial institutions which have not been so approved may obtain information as to how to

become certified by contacting the Office of Disciplinary Counsel (802) 859-3000. For a complete

list of Approved Financial Institutions, please click on the following link and select “Attorney Trust

Accounts”:

https://www.vermontjudiciary.org/about-vermont-judiciary/boards-and-commitees/professional-responsibility

IV. 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.

Please use the link below to report any form question, concern or issue

http://www.vermontjudiciary.org/website-feedback-form or you can access our Website Feedback

program at the bottom of each web page.

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.