Vt. Memo to the Bar, July 14, 2022

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

THERESE CORSONES, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

Therese.Corsones@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: Teri Corsones, State Court Administrator

RE: Important News, Promulgated and Proposed Rules, Odyssey File and Serve and Public

Portal Information, Filing of Exhibits & Other Miscellaneous Info

DATE: July 14, 2022

For your information, please find:

• Admission and Licensing Applications

• Promulgation Order Amending Administrative Order No. 50

• Promulgation Order Amending A.O. 9, Rules 7, 8, 20, and 26

• Promulgation Order Amending A.O. 23

• Promulgation Order Amending A.O. 41 § 4 and Adding § 18

• Promulgation Order Amending A.O. 52

• Promulgation Order Adding A.O. 53

• Promulgation Order Amending V.R.C.P. 26(e)

• Proposed Order Adding Rules 9.2 and 9.3 to the Vermont Rules of Civil Procedure

• Proposed Order Amending V.R.S.C.P. 6 and V.R.C.P. 80.6(n)

• Odyssey File and Serve and Public Portal Information

• Filing of Exhibits

• Miscellaneous

I. IMPORTANT NEWS

Admission and Licensing Applications

The Office of Attorney Licensing is now accepting most admission and licensing applications,

including pro hac vice applications, only through Vermont’s eFiling system. Some of the necessary

updated application forms (including an updated pro hac vice application) can be found on the

Attorney Licensing section of the Judiciary’s website. Updated applications for admission are made

available by the NCBE. Instructions on how to file these applications can be found in the Attorney

Licensing eFiling Guide.

II. PROMULGATED RULE AMENDMENTS

a. Promulgation Order Amending Administrative Order No. 50

This Order was promulgated on July 5, 2022, effective July 5, 2022.

Administrative Order No. 50, originally promulgated in August 2020, created a pilot project to serve

defendants more efficiently in cases where the Office of Child Support (OCS) is providing services

under federal law. The pilot project began in Windham and Windsor Units, was extended to Caledonia

and Orange Units in August 2021, extended to the Orleans Unit in March 2022, and is now extended to

the Franklin, Grand Isle, Lamoille, and Essex Units.

b. Promulgation Order Amending A.O. 9, Rules 7, 8, 20, and 26

The amendment to Rule 7(B) rescinds the existing limit on the number of terms that an Assistance

Panel member may serve. Given the nondisciplinary format and goals of the Bar Assistance Program,

the value of experienced members, and the relatively small pool of potential members, there is no reason

to limit terms.

The amendment to Rule 7(C) rescinds the requirement that at least one member of an Assistance Panel

be a current member of the Board. With only seven volunteer members, this requirement puts an

unreasonable expectation on Board members’ time. Board members remain eligible to volunteer to serve

as members of assistance panels.

The amendments to Rule 8 clarify the scope of the confidentiality of all information, communications,

and records received and generated by the Bar Assistance Program. New paragraph (C) is added to

clarify that all information, communications, and records related to matters considered by Assistance

Panels are confidential. New paragraph (D) is added to clarify the situations in which otherwise

confidential information, communications, or records must be disclosed. Old paragraph (C) is relabeled

a paragraph (E) and is amended for clarity and to strengthen the confidentiality of information,

communications, and records. Old paragraph (D) is relabeled as paragraph (F) and is amended to clarify

the situations in which otherwise confidential information, communications, or records may be

disclosed. Paragraph (F) loosely tracks V.R.Pr.C. 1.6(c) and is intended to permit Bar Counsel or the Bar

Assistance Program to disclose information in situations in which a lawyer would be permitted to do so

in a lawyer-client relationship. Old paragraph (E) is relabeled as paragraph (G) and is amended to reflect

that, on occasion, the Professional Responsibility Program might contract with an attorney to serve when

Bar Counsel has a conflict of interest or is otherwise unable to serve. Old paragraph (F) is relabeled as

paragraph (H) and is amended make clear that the confidentiality provisions of Rules 5, 6, and 7

encompass all who might work or volunteer in or for the Bar Assistance Program.

The amendment to Rule 20 reflects the 2021 amendments that created the role of Screening Counsel.

The amendment to Rule 26(D) clarifies that lawyers who are suspended for 6 months or longer must

petition for reinstatement to the active practice of law. By contrast, lawyers who are suspended for less

than 6 months may resume practicing upon the expiration of the suspension.

c. Promulgation Order Amending A.O. 23

Administrative Order 23, regarding the Advisory Committee on the Rules of Evidence, is amended to

expand the membership of the committee from ten to thirteen. The primary reason for the change is to

broaden the membership to ensure a range of experience on the committee, representing the varied

practice areas where the evidence rules are used. The amended order requires that the committee include

seven attorneys each with a focus and experience in the following practice areas: general civil, criminal

prosecution, criminal defense, probate, mental-health, family domestic, and juvenile. The order retains

three additional general members that are not tied to a particular practice area.

d. Promulgation Order Amending A.O. 41 § 4 and Adding § 18

The amendments to Administrative Order 41 add provisions regarding disclosure of insurance

coverage for malpractice. A joint committee made of members from the Professional Responsibility

Board and the Vermont Bar Association met several times, studied the approaches of several

jurisdictions, and heard from a variety of individuals, including attorneys involved in attorney discipline

and malpractice cases, and representatives of title and malpractice insurers. The committee proposed

that A.O. 41 be amended to require that the annual licensing statement include a section requiring

lawyers to disclose their insurance status. New § 4(a)(8) implements that requirement. New § 18

provides details of the required disclosure, exempting government attorneys, in-house counsel, active

attorneys not representing clients, and attorneys not on active status. Section 18(d) provides that the

information regarding insurance coverage is publicly available, but delays public availability until after a

full license renewal period has passed.

e. Promulgation Order Amending A.O. 52

This Order was promulgated on July 11, 2022, effectively.

Administrative Order 52, which established a pilot project for remote civil jury trials, is amended in

two ways. First, the pilot is extended to August 31, 2023, to allow more opportunity for the Judiciary

and court users to gain experience with this format. Second, the order is amended to underscore that

prospective and seated jurors may use devices for remote trials notwithstanding the prohibition in

V.R.C.P. 79.2(d)(5).

f. Promulgation Order Adding A.O. 53

Administrative Order 53 is added to establish a permanent Advisory Committee on the Vermont Rules

for Electronic Filing. The Supreme Court established a special advisory committee to develop rules

governing procedures for electronic filing in conjunction with the implementation of the Judiciary’s

electronic case management system. The resulting rules continue to require modification based on

experience and a permanent committee will assist the Court in keeping the rules updated.

g. Promulgation Order Amending V.R.C.P. 26(e)

The amendment to Rule 26(e) conforms the Vermont rule to the federal rule in two respects. The first

relates to supplementation of expert disclosures and expert depositions. The amended rule requires

supplementation of disclosure of information provided about expert witnesses or by expert witnesses

when deposed. The second change is a clarification. As originally drafted, the federal and state rules on

supplementation referred to supplementing a response that was correct when initially made. The

Vermont rule now follows the federal rule by deleting “thereafter acquired” from the first sentence of

the rule. This change eliminates any interpretation of the rule that the duty to correct or supplement does

not arise if information available to the disclosing party at the time of the initial disclosure rendered the

initial disclosure incomplete or inaccurate.

III. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND HAVE

NOT BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Adding Rules 9.2 and 9.3 to the Vermont Rules of Civil Procedure

Rules 9.2 and 9.3 are simultaneously proposed pursuant to the Supreme Court’s identical directives

in Administrative Order No. 49 (A.O. 49), ¶¶ 21(e) and 22(h), that the Civil Rules Committee

“review the current state of state and federal law concerning eviction [and foreclosure] proceedings

and propose any necessary changes to the Civil Rules to take effect upon expiration of” that

administrative order.

A.O. 49 ¶¶ 21 and 22 were originally added on July 23, 2020, to provide special pleading

requirements for eviction and foreclosure proceedings and have been amended several times to

reflect the changing financial and regulatory climate—most recently on February 7, 2022.

The two rules contain provisions related to federal appropriations for Vermont Emergency Rental

Assistance (VERAP) and Vermont Homeowner Assistance Program (VHAP) funds, which are

currently scheduled to expire on September 25, 2025. 15 U.S.C. §§ 9058c(g), 9058d(a). It is

expected the Court will terminate all or part of Rules 9.2(b) and 9.3 earlier if funds are exhausted

before that date and applications are no longer being accepted.

Comments on these proposed amendments should be sent by August 29, 2022, to Allan Keyes,

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

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

b. Proposed Order Amending V.R.S.C.P. 6 and V.R.C.P. 80.6(n)

The proposed amendments to Rule 6 incorporate provisions regarding remote hearings for small

claims actions and for judicial bureau proceedings. See V.R.C.P. 80.6(d)(4) (making V.R.S.C.P. 6

applicable to judicial bureau proceedings). In response to health concerns COVID-19 pandemic, the

Supreme Court declared an emergency in March 2020 and issued Administrative Order 49 making

temporary changes to court rules and operations. Under ¶ 5(a), A.O. 49 authorized remote

participation by video or audio in the civil division. Under ¶ 5(c), A.O. 49 authorized the hearing

officer in judicial proceedings to preside remotely and ordered other persons to participate by

remote audio or video.

Remote hearings were very effective in the judicial bureau and the current amendments allow

remote proceedings to continue. Existing 6(a) is divided into four paragraphs. New 6(a)(2)(A)

provides that in a nonjury hearing, the court may preside remotely and require other persons to

participate remotely by either audio or video. Participants can request an in-person hearing and the

court can grant the motion based on its consideration of the relevant factors in V.R.C.P. 43.1. For

trial by jury, Rule 6(a)(2)(B) incorporates the procedures in V.R.C.P. 43.1.

The proposed amendment to Rule 80.6(n) adds V.R.C.P. 43.1 to the list of civil rules that do not

apply in judicial bureau proceedings.

Comments on these proposed amendments should be sent by August 29, 2022, to Allan Keyes,

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

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

IV. ODYSSEY FILE & SERVE AND PUBLIC PORTAL INFORMATION

All Superior Courts, including the Environmental Division, the Judicial Bureau, and the Supreme

Court are using Odyssey and accepting electronic filings through Odyssey File & Serve. Please use

the following links to access Odyssey electronic filing and portal systems and for more information.

Reminders for OFS Users:

1) PDFs must be “flattened” prior to efiling through Odyssey File & Serve

With the increased use in electronic signature tools, it is important for OFS filers to

remember that all PDFs must be flattened prior to filing in OFS. In order to eFile a form-

fillable PDF or a PDF that has been electronically signed, you must first save them as a flat

file. Otherwise, the filing will fail and you will need to refile.

Follow the steps below to "flatten" a completed PDF:

1. Open the completed PDF.

2. Right click on document and select Print. NOTE: if document opens in Adobe, Select

File and select Print.

3. Select the PDF printer. (The Adobe PDF printer is installed automatically with Adobe

Acrobat. Numerous free PDF printer

drivers are available for download from the Internet.)

4. Select OK.

5. Specify location to save the printed, "flattened" version of the form.

6. Select Save

2) Attorneys must select the party they represent as the “person responsible for fees” in the Fee

section of the filing process. Additionally, when the attorney represents more than one party,

attorneys should continue to select the same party as the “person responsible for fees”;

otherwise, the attorney will incur an additional efiling use fee.

Odyssey File & Serve. Odyssey File & Serve (OFS) is the platform through which you

electronically file with the courts. To access OFS, please visit https://vermont.tylerhost.net/ofsweb

You can access user guides through the “User Guides” link in the “Self Help” window. You can also

access docket-specific user guides and a new Frequently Asked Questions on the judiciary’s website

at www.vermontjudiciary.org/efiling

For technical support regarding Odyssey File & Serve, please contact Tyler Technologies at 800-

297-5377 or efiling.support@tylertech.com

If you have procedural questions about OFS, please email the judiciary at

JUD.EFileSupport@vermont.gov

Odyssey Public Portal. The Odyssey Public Portal allows you to view your case files. To access the

portal, please visit https://publicportal.courts.vt.gov/Portal/ Before you can view your case files, you

must first register in the portal and then request elevated access. The Public Portal User Guide

contains instructions on how to register and request elevated access. You can read the user guide on

our website at https://www.vermontjudiciary.org/about-vermont-judiciary/public-portal

For technical support regarding the Public Portal, please contact the Vermont Judiciary’s HelpDesk

at Jud.helpdesk@vermont.gov When emailing, please write “Public Portal” in the subject line.

V. FILING OF EXHIBITS

Per the 2020 Vermont Rules for Electronic Filing, all electronically filed documents (including

exhibit lists and exhibits) must be submitted in PDF format. It is recommended that the exhibit list

be filed in Odyssey File & Serve (OFS) as a “Lead Document” and that any PDF exhibits be filed as

attachments to that exhibit list.

Multimedia files that cannot be converted to PDF format should be submitted by nonelectronic

means on a DVD or USB flash drive (aka thumb drive) and can be mailed or delivered to the court.

It is recommended that filers indicate this on the exhibit list being filed in OFS. Please note that

while the courts are equipped to view common multimedia formats (such as .mp3, .mp4, .mpeg,

.mov, .wmv files), the filer will have to provide compatible player software if an exhibit is in a

proprietary multimedia format.

Finally, please remember that regardless of how an exhibit is filed, it is the filer’s responsibility

during a hearing to present the exhibits. During remote hearings, this means the filer must either

assure that all witnesses have been provided with the marked exhibits in advance and have them

available to view; or be able to share his or her screen to allow all participants to view the exhibit. If

the exhibit is a video or audio file, the litigant must be prepared to play it during the hearing.

VI. 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). To update changes in your

contact information, please access your attorney account with the Attorney Portal

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

JUD.CAOMemotoBar@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.

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. This website works best with Explorer.

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.

Updating information in the Attorney Portal or in eCabinet does not automatically notify the

other. It is your responsibility to update both. If you are a member of the Vermont Bar Association,

you will also need to separately notify the VBA.

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

JUD.CAOMemotoBar@vermont.gov to your Safe Senders list.