Vermont

VErMONT UPDATE

On June 17, 2009 the Vermont Supreme Court adopted, without changes, ABA Model Rules 5.5 and 8.5, which govern the multijurisdictional practice of law (MJP) and facilitate the cross-border practices of lawyers admitted in one US jurisdiction, but not in the state that’s adopting this practice authorization. Vermont’s MJP rules are effective September 1, 2009.
 
Rule 5.5(d) as adopted allows a lawyer admitted in one (or more) US jurisdictions, and not disbarred or suspended from practice in any jurisdiction, to “provide legal services” to the lawyer’s employers as in-houes counsel operating on a permanent basis in the state; the provisions of 5.5(c) allow lawyers from all practice environments, including both inside and outside counsel, to make temporary incursions into the adopting state to engage in client business (taking a deposition, participating in a negotiation, meeting with teams, etc.), where previously such incursions may have been viewed as unauthorized practice. 

Vermont Rules, effective 9/1/09

 

 

Rule 5.5 MJP/UPL Current

A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the
legal profession in that jurisdiction; or
(b) assist a person who is not a member of the bar in the performance of activity
that constitutes the unauthorized practice of law.

Rule 5.5 and Comments

Rule 5.5 MJP/UPL Proposed

The committee has submitted to the Supreme Court proposed revisions, which requested that the proposed revisions be circulated for further comment. After review of comments, the proposal will be sent to the Court for consideration.

In House Counsel Rule

Vermont does not have an exception for in house counsel acting without bar admission. However, the proposed revision for Rule 5.5, if adopted by the Supreme Court will address in house counsel practice.

Pro Hac Vice

Vermont has several pro hac vice admission rules. They were all recently admended to reflect Administrative Order No. 41 which requires a licensing statement and fee. They are:

(1) Civil Procedure Rule 79.1(e). Attorneys Not Admitted to Practice in Vermont.
Any member in good standing of the bar of any other state or of the District of Columbia may, in the discretion of the court on motion by a member of the bar of this state who is actively associated with that attorney in a particular action, be permitted to practice in that action. The motion shall designate which attorney will serve as lead counsel. The court may at any time for good cause revoke such permission. An attorney so permitted to practice in a particular action shall at all times be associated in such action with a member of the bar of this state, upon whom all process, notices and other papers shall be served and who shall sign all papers filed with the court and whose attendance may be required by the court.

This section was amended effective June 30, 2006, to authorize the trial court to admit an attorney pro hac vice after the attorney has filed the licensing statement and paid the fee requirement by simultaneous amendments to A.O. 41;

(2) Criminal Procedure Rule 44.2(b). Appearance and Withdrawal of Attorneys.
(b) Attorneys not Admitted in Vermont. Any member in good standing of the bar of any other state or of the District of Columbia may in the discretion of the court, on motion by a member of the bar of this state who is actively associated with him in a particular action, be permitted to practice in that action. The motion shall designate which attorney will serve as lead counsel. The court may at any time for good cause revoke such permission. An attorney so permitted to practice in a particular action shall at all times have associated with him or her in such action a member of the bar of this state, upon whom all process, notices and other papers shall be served and who shall sign all papers filed with the court and whose attendance may be required by the court.

This section was amended effective June 30, 2006, to authorize the trial court to admit an attorney pro hac vice after the attorney has filed the licensing statement and paid the fee requirement by simultaneous amendments to A.O. 41;

(3) Family Court Procedure Rule 15(e). Appearance and Withdrawal of Attorneys.
(e) Attorneys Not Admitted to Practice in Vermont. Any member in good standing of the bar of any other state or the District of Columbia may, in the discretion of the court on motion by a member of the bar of this state who is actively associated with the attorney in a particular action, be permitted to practice in that action. The motion shall designate which attorney will serve as lead counsel. The court may at any time for good cause revoke such permission. An attorney so permitted to practice in a particular action shall at all times be associated in such action with a member of the bar of this state, upon whom all process, notices and other papers shall be served and who shall sign all papers filed with the court and whose attendance may be required by the court.

This section was amended effective June 30, 2006, to authorize the trial court to admit an attorney pro hac vice after the attorney has filed the licensing statement and paid the fee requirement by simultaneous amendments to A.O. 41;

(4) Probate Court Procedure Rule 79.1(d). Appearance and Withdrawal of Attorneys.
(d) Attorneys not admitted to practice in Vermont. An attorney not admitted to practice in Vermont shall not be permitted to appear or be heard unless the attorney is associated with a Vermont-admitted attorney who has entered an appearance in the case.

This section was amended effective June 30, 2006, to authorize the trial court to admit an attorney pro hac vice after the attorney has filed the licensing statement and paid the fee requirement by simultaneous amendments to A.O. 41; and

(5) Appellate Court Rules Rule 45.1(e). Appearance and Withdrawal of Attorneys.
(e) Attorneys Not Admitted in Vermont. An attorney not admitted to practice before the Supreme Court of Vermont shall not be permitted to appear or be heard unless he or she is associated with an attorney so admitted in Vermont who has entered an appearance in the case.

Admission on Motion

Admission Requirements for Out-of-State Lawyers
Rule 7 of the Vermont Supreme Court Rules of Admission to the Bar provides as follows:
§ 7. Requirements for admission — Applicants admitted to the practice of law in another jurisdiction of the United States
(a) Each applicant who has been admitted to the practice of law in another jurisdiction
of the United States may be admitted upon motion and without examination in this state provided that at the time of application the applicant has been actively engaged in the practice of law for five of the preceding ten years in one or more jurisdictions of the United States, is currently licensed to practice in at least one such jurisdiction, and is not under suspension or revocation in any jurisdiction for disciplinary reasons. Any part of the five-year admission requirement is waived to the extent that any jurisdiction in which the applicant is currently licensed and in which the applicant has actively engaged in the practice of law for not less than six months requires fewer than five years admission as a condition of admission upon motion and without examination for attorneys licensed in this state, provided, however, that at the time of application the applicant has been actively engaged in the practice of law for not less than three of the preceding ten years in one or more jurisdictions of the United States, is currently licensed to practice in at least one such jurisdiction and is not under suspension or revocation in any jurisdiction.

(b) Each applicant who at the time of application has been admitted and has engaged in the practice of law for less than five of the preceding ten years in one or more jurisdictions of the United States, is currently licensed to practice in at least one such jurisdiction, and is not under suspension or revocation in any jurisdiction may be admitted after examination as described in § 6(a)-(e).

(c) Each applicant under § 7(a) and (b) at the time of admission must meet the requirements specified in § 6(f) and (kg).

(d) Each applicant under § 7(a) and (b) at the time of admission shall have completed three months of study in the office and under the supervision of an judge or attorney practicing in this state. The study requirement must be completed within three years of the filing of the petition for admission. The judge or supervising attorney for the office study described in this subsection shall have been admitted to practice before this Court not less than three years prior 5 to the commencement of that study.

(e) Notwithstanding any other provisions of these rules relating to the admission of applicants licensed to practice law in other jurisdictions of the United States, the following special requirements shall apply exclusively to applicants licensed to practice law in New Hampshire or Maine.
(1) Lawyers who are active members of the New Hampshire or Maine state bar, have been actively engaged in the practice of law in New Hampshire or Maine for no less than three years immediately preceding their application for admission under this rule, are currently members in good standing in all jurisdictions where admitted, and are not under suspension or revocation nor currently subject to any disciplinary matter in any jurisdiction may be admitted to the practice of law in this state upon motion and without examination.
(2) Each applicant under this section must at the time of admission satisfy the requirements of § 11 relating to moral character and fitness. §§ 9(a) & (b) relating to application procedures and fees, and § 6(f) relating to minimum age, citizenship, and college education.
(3) In lieu of the requirements of § 7(d) (three months of study in the office and
under the supervision of an judge or attorney practicing in this state), an applicant under this section may complete and certify prior to admission that he or she has attended at least fifteen hours of continuing legal education on Vermont practice and procedure within one year immediately preceding the date upon which the motion is filed in courses approved by the Board of Continuing Legal Education and certified by the Board of Bar Examiners as satisfying the requirements of this section.
(4) An applicant who has failed the Vermont bar examination within five years of the date of filing an application for admission under this section shall not be eligible for admission on motion.
(5) This section shall become effective upon the effective date of an equivalent rule
in New Hampshire or Maine, and shall remain in effect only so long as the equivalent New
Hampshire or Maine rule remains effective.

(f) For the purposes of this rule, “practice of law” shall include the following activities:
(1) Representation of one or more clients in the private practice of law;
(2) Service as a lawyer with a local, state, or federal agency, including military
service;
(3) Service as a judge in a federal, state, or local court of record;
(4) Service as a judicial law clerk; or
(5) Service as in-house corporate counsel, meaning practice as an employed attorney for a corporation, partnership, trust, individual, or other entity, provided such practice was subsequent to being admitted to the practice of law in the jurisdiction in which the practice occurred and involved the primary duties of furnishing legal counsel, drafting legal documents and pleadings, interpreting and giving advice regarding the law, or preparing, trying or presenting cases before courts, executive departments, administrative bureaus, or agencies.

For the purposes of this rule, the “practice of law” shall not include work that, as undertaken, constituted the unauthorized practice of law in the jurisdiction in which it was performed or in the jurisdiction in which the clients receiving the unauthorized services were located.

(g) For purposes of these rules, an applicant shall be deemed to have been “actively engaged in the practice of law” for any seven-day period during which he or she engaged in qualified work for at least 25 hours.

Some recent Vermont cases on reciprocity admission of out of state lawyers are:
In re Conner, 2006 Vt. 131; 917 A.2d 442 (2006);
Parks v. Board of Bar Examiners, 178 Vt. 599; 878 A.2d 297 (2005).

Contact

Vermont Bar Association
PO Box 100
Montpelier, VT 05601-0100
Phone (802) 223-2020
Fax (802) 223-1573

The Board of Bar Examiners
2418 Airport Road
Suite 2
Barre, VT 05641
Phone (802) 828-3281
Fax (802) 828-1695

Martha I. Hicks-Robinson, Program Administrator
(802) 828-3281
(802) 828-3457

ETHICS 2000 & MJP CONTACT
L. Kinvin Wroth
Vermont Law School
P.O. Box 96
South Royalton, VT 05068
Phone (802) 763-8303
Email: kwroth@vermontlaw.edu