2011-2012 Annual Report
of Section Activity
ALTERNATIVE DISPUTE RESOLUTION SECTION
The ADR Section presented two CLE's this past year. In October of 2011, the Section collaborated with the Family Law Section and Collaborative Law Section in presenting a full day program entitled Managing the Divorce Case from a Multidisciplinary Perspective. This was the first Section sponsored event that we have held in Rutland. In the Spring of 2012, we again collaborated, this time with the Tail of the Tiger Program to sponsor a CLE entitled Dispute Resolution from the Inside Out.
This year the Section has also maintained a listserve that hosts both announcements as well as discussion. One goal for the upcoming year is to make the listserve function more as a resource for practitioners. Another goal for the year is to collaborate more with other Sections and organizations to present thought leaders in the field to our membership.
ARBITRATION OF FEE COMPLAINTS SECTION
This year I received six requests from clients for fee arbitration (none from attorneys). One complaint was resolved by a panel, which awarded a refund to the client (which had already been paid).
One case is pending, where the attorney has agreed to participate. Another case will be heard in late October per the attorney’s request. In one case the attorney never responded to the request to arbitrate. In the last two cases, I have not heard back from the two attorneys yet.
The cases range from hundreds of dollars to tens of thousands.
At least two of the cases started out as ethics complaints to Michael Kennedy, but he and I determined that they were really fee disputes. However, I think there is a line over which an excessive fee becomes a matter of ethics. However, no one at Professional Responsibility has taken that view as yet.
Catherine Clark, Chair
The Holiday CLE in December was a big hit. There were over 50 registrants who came to hear about the year of cases in review, Anna Nicole Smith, and other tantalizing topics. The tradition of bankruptcy charades continued. Our regional US Trustee, Tracy Hope Davis, was in attendance as well Judge Brown, the bankruptcy judge.
The Court also held its own CLE this past June to discuss proposed changes to the local rules. Committees worked hard to put together some proposed changes that are now being considered. A special task force committee also convened to create a bankruptcy foreclosure mediation process to work in conjunction with the state foreclosure rules. The Court has, by rule, created a very specific bankruptcy foreclosure mediation process that is now in full swing.
Brown bags lunches with Judge Brown and staff are held regularly (alternating between Rutland and Burlington) and are available telephonically as well. All are encouraged to attend.
COLLABORATIVE LAW SECTION
The Central Vermont Collaborative Law Practice Group held a three-hour
introductory training on the Interdisciplinary Team on October 3, 2011. Co-sponsor was Networks, Inc. Adele D’Ari, Ed.D., and Lisa Herrick, Ph.D., of the Metro D.C. area presented to a group of almost 30 mental health professionals and lawyers. The Section held a two-day Collaborative Law Interdisciplinary Training on April 20 and 21, 2012, co-sponsored by Networks, Inc., with presenters from the Boston area – Rachel Goldman, Esq., Sanford Portnoy, Ph.D., and Doris Tennant, Esq. More than 40 lawyers, mental health professionals and financial planners attended. Lawyers in Chittenden and Washington Counties have been using interdisciplinary teams and are reporting great satisfaction and success with the process.
There are currently four practice groups in Vermont -- in Central Vermont, Chittenden County, Rutland/Bennington/Manchester and the Upper Valley. There are also several attorneys in the Northeast Kingdom interested in starting a practice group. The practice groups in Central Vermont and Chittenden County are interdisciplinary. The practice groups allow professionals to share information about collaborative practice, refine collaborative skills, peer review cases, network, engage in public education, etc.
The Section has a web page on the VBA website. The Central Vermont and
Chittenden County practice groups have their own web sites.
The Section invites all lawyers to become members. However, there are training requirements for those wishing to be listed as a participating lawyer in the Section’s web page and brochure, including attending basic collaborative training (1 - 2 days) and obtaining 6 hours of credit every 2 years in collaborative law or related skill areas.
In the Spring of 2012, the Section began working on leadership succession.
Amy Klingler has agreed to serve as co-chairperson with Phyllis Rubenstein. The Section intends to present a two-hour introductory training on the Interdisciplinary Team in the Manchester area in the Fall of 2012 for lawyers, mental health professionals and financial planners.
Phyllis Rubenstein, Co-Chairperson
CRIMINAL LAW SECTION
Recently the Criminal Law Section assisted the VBA and the Vermont Supreme Court in the presentation of a basic skills course on Vermont Criminal Practice & Procedure. This course is designed for out-of-state lawyers seeking to satisfy admission requirements in Vermont. Section Chair Dan Maguire along with attorneys Mark Keller and Mary Kay Lanthier presented to a room of lawyers from New York, Pennsylvania, New Hampshire, Massachusetts and Connecticut.
As the new year approaches the Criminal Law Section plans to actively engage its list-serve by soliciting its members as to what changes, additions or deletions to the Vermont Rules of Criminal Procedure would best benefit the effective administration of justice. Section Chair Dan Maguire will forward proposals to the Supreme Court's Criminal Rules Advisory Committee for consideration and adoption. The Criminal Law Section will also be sponsoring additional programs and seminars throughout the year.
Comments are welcome and can be directed to Dan Maguire at Dan@maguirelawvt.com.
DISABILITY LAW SECTION
In the 2011-2012 year, the Disability Law Section met several times to discuss issues of concern to section members. We met as a group with the head of the Attorney General’s Office, Civil Rights Division, to get an update on disability-related employment discrimination cases under the recently-amended Americans with Disabilities Act, and to provide input for a Vermont meeting between the AG’s office and the federal Equal Employment Opportunities Commission. We also met to discuss a range of other issues, including regulations around special needs trusts, and to provide input to the Association for its meeting with Vermont’s congressional delegation regarding the Association’s legislative and funding priorities.
ELDER LAW SECTION
The Section sponsored the 3rd Annual Elder Law Summit in the fall of 2011. In the winter, the section looked at legislative proposals around proposals around protecting seniors from improvident transfers and other consumer protections for seniors. Ultimately, the proposals were not pursued. The Section is sponsoring the 4th Elder Law Summit to be held on Friday, October 5, 2012, 9:00 a.m.-4:30 p.m. at Yates Common Room, Vermont Law School, South Royalton, VT.
EMPLOYMENT LAW SECTION
Our VBA Employment Law Section has continued to focus our efforts on focused web-based educational programs along with outreach to Vermont employers, HR professionals and business groups. In February, we sponsored and facilitated a 90-minute webinar dealing with employer record-keeping and preservation, and in July, we sponsored the annual Department of Labor update with presentations from Vermont Department of Labor officials. Both programs were well-attended and well-received.
Once again, we are co-sponsoring the Robert Fuchs Labor Law Conference at Suffolk Law School, which will be on October 18, 2012.
Our ListServ facility continues to provide a forum for employment lawyers to communicate with each other about legal issues and upcoming events. VBA members who would like to participate in the Employment Law Section or simply to be kept informed of our activities may contact the VBA to be added to our mailing list.
Stephen D. Ellis, Chair
The past year may be best remembered as the year of S. 28. S. 28 and its house counterpart allowed us to discuss both the district commission and the Environmental Court process. While S.28 focused mainly on the issue of “on-the-record review” of district commission decisions, its various iterations in both houses touched on several other issues we face as lawyers. While early drafts focused on whether a citizens’ board should replace the environmental court, the final drafts almost exclusively centered on the question of whether an on-the-record review of Act 250 decisions was the appropriate appellate process. The bill failed in large part because there was a lack of support by the legal community.
As Chair of the Environmental Section I have been working with both the Environmental Court’s staff and state agencies to create new CLE’s on several possible issues in the near future, including: i.) the Environmental Court process; ii.) what we learned from Irene; iii.) energy and the environment: the section 248 process; iv.) ANR permits: how to take the mystery out of state permitting; and iv.) how Vermont environmental laws have changed over the past couple of years.
FAMILY LAW SECTION
The Family Law Section has had an active year. The section has created two working groups: one to consider responses to the Vermont Supreme Court’s Billings decision, concerning evidence of financial expectations in divorce, and one to explore establishing guidelines for spousal support. It has also been active in the passage of new legislation concerning child
support this legislative term. As Chair of the section, Penny Benelli sat on the Act 32 Child Support Working Group, established by the legislature in 2010, to review and recommend procedures to improve the collection of child support in Vermont. Penny also testified on the bill before the Senate Judiciary Committee. The section, as usual, has also been involved in
presenting CLE. In August, it responded on short notice to the change in requirements for out-of-state attorneys to waive into practice here by covering the family law portion of their 15-hour mandatory CLE at a two-day seminar in Burlington. The Section will also be presenting the
ever-popular Family Law in Review CLE at the fall VBA meeting, and additional CLEs are in the works. In January, the section was asked by the Vermont Supreme Court to provide briefs in the matter of Columbia v. Lawton, an important case concerning parental rights before the Court,
but as to which both parties appeared pro se. Katherine Kennedy and James Valente stepped up to the plate, and each provided a brief. James also reargued the case before the Court at its special session at Vermont Law School in March. The decision is pending. Finally, the Family
Law Section listserv is alive and well and regularly proves itself to be a valuable resource to us all.
INSURANCE LAW SECTION
At the September, 2011 Vermont Bar Association Annual Meeting, the Section presented its annual year-in-review program discussing recent developments in Vermont insurance law. The program involved a panel discussion of two significant cases decided in the previous year, Northern Security Insurance Company, Inc. v. Stanhope, 2010 VT 92, and Northern Security Insurance Co. v. Pratt, No. 838-11-10 WNVC, 2011 Vt. Super. LEXIS 36 (Vt. Super. Ct. May 19,2011). The panel consisted of, Vanessa Kittell, Jeffrey Marlin, who argued the Stanhope case, and Leo Bisson, who argued the Pratt case. Sam Hoar then joined the panel where he led a very lively discussion of the practical implications of the Pratt case. The Section Chair received tremendously appreciative feedback on the excellent presentations by Ms. Kittell, Mr. Marlin, Mr. Bisson and Mr. Hoar.
At this year’s meeting, we will return to a more traditional year-in-review format, where Sam Hoar will be joined by Paul Perkins, the Section Chair, to discuss the five Vermont Supreme Court cases which were decided in the last year:
1.Bradford Oil Co. v. Stonington Insurance Co., 2011 VT 108, available at http://info.libraries.vermont.gov/supct/current/op2010-361.html
2.Co-operative Insurance Cos. v. Bennett, 2012 VT 22, available at http://info.libraies.vermont.gov/supct/current/op2011-158.html
3.Doe v. Vt. Office of Health Access, 2012 VT 15, available at http://info.libraries.vermont.gov/supct/current/op2011-045A.html
4.McGoff v. Acadia Insurance Co., 2011 VT 102, available at http://info.libraries.vermont.gov/supct/current/eo2010-264.html
5.ProSelect Insurance Co. v. Levy, 2011 VT 109, available at http://info.libraries.vermont.gov/supct/current/eo2010-438.html
The Section continues to work on creation of a repository of insurance coverage-related decisions for members, and to recruit new members to join the Section, including those who represent insurers and insureds in coverage matters.
Please feel free to contact Paul Perkins at PJPerkins@PlanteHanley.Com or (802) 295-3151, ext. 103 about suggestions for upcoming training programs and activities and any other Section-related matter important to you.
INTELLECTUAL PROPERTY LAW SECTION
At the VBA Mid-Year meeting on March 23, 2012, the IP Section presented a full-day seminar entitled: Intellectual Property: What You Need to Know About Patents, Trademarks, Trade Secrets and Copyright in 2011 and Beyond”.
The seminar covered the protection, enforcement, and future of the “four flavors” of intellectual property, and focused on answering the following questions:
Patents: What is patentable? Where is patent reform taking us? What are the trends in the patent marketplace?
Trademarks: How are federal trademark registrations obtained? How do you protect clients’ international trademark rights? How do you resolve trademark disputes without involving courts?
Trade Secrets: What does trade secret law protect? How far does the “inevitable disclosure” doctrine go? Should you consider alternatives to trade secret protection?
Copyright: What are the critical issues in copyright licensing? What is copyright infringement and what is “fair use”? What are the key differences between U.S. and international copyright law?
The presenters on patents were Mark Chadurjian, Stuart Meyer and Tom Valente.
The presenters on trademarks were Peter Kunin, Gordon Troy and Kevin Henry.
The presenters on trade secrets were Matthew Byrne, Walter Judge and Jane McKnight.
The presenters on copyright were Kathryn Kent, Andrew Manitsky and Patricia Nelson.
JUVENILE LAW SECTION
The Juvenile Law Section has continued to struggle this year with many people signed up as committee members, but few active participants. If the Section is to make a difference in the community of lawyers practicing in this field, members need to take a more active role.
During this year, we presented a seminar at the Mid-Year Meeting entitled “Effective Holistic Parenting in Dependency Matters.” We brought Nancy Colon Vivoda, a peer navigator from the Detroit Parent Representation Project to Vermont to participate in the panel. The program was well-received.
We also worked on H. 751, which became Act 159, extending the jurisdiction of the juvenile court to 18½ in non-violent misdemeanors, with the hope that more prosecutors will file such cases in juvenile court . Although it didn’t end up being as comprehensive as the original legislation, it is another baby step forward.
We monitored that status of some other legislation, such as the bill which would have extended inquests to juvenile cases and a bill introduced by Alice Nitka extending the age for mandatory school attendance from 16 to 18.
We worked informally with Cindy Walcott and others about repeated reports of youth being transported in shackles in violation of statutory and DCF policy. This has been an ongoing problem, particularly with transports to/from 204 Depot Street and to mental health placements. No resolution has been reached and additional work is needed in this area.
The Juvenile Law Section has continued to use the listserve to circulate articles and other information of interest to juvenile law practitioners.
Pamela A. Marsh, Esq.
This past year saw Municipal Attorneys rapidly learning all things flood related. Tropical Storm “Irene” decimated towns all over the State and the municipalities were forced to learn about FEMA regulations, zoning regulations concerning rebuilding of homes and businesses in flood stricken areas, emergency orders by Selectboards, emergency plans for getting supplies and food to residents, and governmental rule under a state of emergency. For many, this has been a year of learning new regulations, new processes, and new approaches to land use planning in Vermont, especially along our waterways. The response has been quite dramatic. The Towns have made great strides in one year and the respective boards in these towns are already looking to the future concerning how to prevent such wide-spread destruction from future storms.
The Property Assessed Clean Energy program has also been a topic of many municipalities over the past year. Many towns voted to create such special assessment districts. Municipal attorneys are grappling with the process associated with these “loans” which enjoy the priority of taxes. Municipal attorneys will be needing to explore the legal consequences for the towns which implement this program.
Robert M. Fisher
PRACTICE & PROCEDURE SECTION
The Practice and Procedure committee assisted the VBA with two seminars this past year. First Jim Knapp and I presented a seminar on Discovery of Electronic information in small to medium cases. We presented at the mid-year meeting in Burlington. We discussed the basics of what electronically stored information is and where it can be found. We discussed the changes to the civil rules to account for discovery of electronically stored information and also the ethical and practical issues related to discovery and use of ESI.
The Committee also presented a program on an overview of the Vermont Civil court system. The Supreme Court has eliminated the clerkship requirement for out-of-state lawyers with 5 years or more of practice experience who are seeking to be licensed in Vermont. In its place, the Court has put a 15-hour CLE requirement. The VBA designed a 15-hour (two-day) program that has been approved by the Board of Bar Examiners and the MCLE Board as meeting the requirements of the new rule.
One part of that two-day program was a one-hour overview of civil litigation in Vermont, described as addressing “court structure, scheduling orders, motion practice, discovery practice (including e-discovery), mediation, appeals, and e-filing.” David Cassier and Teri Corsones were gracious enough to present on this issue. The seminar took place on Thursday, August 23rd at the Windjammer Conference Center in South Burlington.
Lastly Jim Knapp and I are scheduled to present part two of our multipart seminar on Electronic Discover on September 21, 2012 at the annual meeting.
Gregory A. Weimer, Esq.
PROBATE AND TRUST LAW SECTION
The Probate and Trust Section of the Bar has several legislative agendas going on for submission to the Legislature for the upcoming session.
A subcommittee is working on a comprehensive review of and revisions to the law governing administration of decedents’ probate estates. The subcommittee began its work in the summer of 2010 and has proceeded continuously since then. It is nearing completion. Our target is the 2013 legislative session. Unfortunately our product will not be available for the annual meeting.
The Probate Rules Committee meets four or five times a year to update the Rules to make sure they conform with changes in the statutes as well as submit new rules which will aid the administration of matters before the Probate Court. The Probate Rules Committee has also reviewed and commented on changes to the Probate Forms in order to insure the Rules and Forms are not in conflict.
A State QTIP Option/Portability Study Committee has been formed to review the administration of state estate taxes in other states and whether Vermont’s system can be improved. All the New England States with a state estate tax have a State QTIP Option. Many other states have one as well. The committee believes a State QTIP Option would be beneficial to Vermont and is drafting proposed legislation. The adoption of the portability rule at the federal level would also be advantageous at the state level. The portability rule allows a surviving spouse to use his or her last deceased spouse’s unused estate tax exemption amount. This rule evens estate tax application for those who have done planning and those who have not.
Another subcommittee has been formed to explore a statutory tenants by the entirety trust. Tenants by the entirety has some creditor protection advantages but could require probate administration upon the second to die. Wrapping tenants by the entirety property in a trust achieves the best of two worlds: creditor protection and probate avoidance. Delaware has recently adopted such a statute. Committee members have expressed an interest in having Vermont adopt such a law.
A joint subcommittee is forming to address the Vermont Supreme Court’s holding in Billings v. Billings in which the court held that a potential inheritance can be considered in the division of property between spouses in a divorce. Historically, potential inheritances were too speculative to consider. Testators and settlors of trust are reluctant to be drawn into the discovery process of divorce litigation where their assets may become known to others. This subcommittee is joining members of the Family Law section to address the issues raised by this holding.
Mark A. Langan & Robert S. Pratt
PROPERTY LAW/IPR-REALTORS SECTION
The Property Law/IPR-Realtors Section remained active throughout the year. The Annual Real Estate Law Day, sponsored by the Vermont Bar Association and Vermont Association of Realtors, was held on November 15, 2011 and was well attended, as usual. This year’s Real Estate Law Day is scheduled for November 8, 2012. Real property law updates were presented by Section members at the Vermont Bar Association Meetings.
This year proved very productive at the Vermont Legislature. After Hurricane Irene, Senator Campbell asked Bob Paolini and Chris D’Elia to co-chair the Post-Irene Task Force to examine the effect the devastating storm had on real property ownership. Many member of the section participated throughout the fall and in an unusual move, the Senate met as a Committee of the Whole on Tuesday January 17, 2012 to hear the final report of the Task Force. Several bill affecting real estate were enacted this year, including Act 85 (Licensed Lender modifications), Act 91 (Extension of sunset date for Stormwater permits), Act 102 (Foreclosure rewrite); Act123 (Private Road Maintenance Agreements); Act 126 (State highway condemnation); Act 143 (availability of tax prebate information); and Act 144 (powers of Attorney).
The Title Standards Sub-Committee continued to meet on a regular basis. New and revised standards have been adopted by the committee and public comment has been solicited prior to these new and revised standards being present to the Board of Bar Managers at the September, 2012 Annual Meeting for formal adoption.
Finally, the List Serve has been very active. If you would like to follow the dialog but are not currently enrolled, please contact Laura Welcome at the Vermont Bar Association Offices for information on how to subscribe. It is a great way to stay informed of developing issues.
TAX LAW & ACCOUNTANTS SECTION
The 2011-2012 activities of the Tax Section of the VBA were primarily limited to our ongoing efforts to change the process by which disputes between the Vermont Department of Taxes and taxpayers are resolved. In the months leading up to the 2012 Legislative session we refined our proposal to establish an independent hearing officer for the adjudication of tax disputes that was based on the Model State Administrative Tax Tribunal Act (the “Model Act”). The Model act was drafted by a special task force comprised of members of the Committee on State and Local Taxation, Section of Taxation of the American Bar Association. The product of our labor was a draft bill which was submitted to the House Committee on Ways and Means and ultimately sponsored by Vice Chair, Carol Branagan. Although we were unsuccessful in getting the bill, H.606, passed into law; we were successful in attracting attention to and support of the proposal and plan to be back in the legislature in the upcoming session lobbying for its passage.
Roger Prescott & Allen Webster
WORKER'S COMPENSATION SECTION
This year, in conjunction with the VT DOL WC adjuster's conference in October, the VBA WC section had a well attended CLE credited meeting with the VT Department of Labor to discuss updated legal issues and share areas of concern for both. We have also been engaged with the VTDOL as they evaluate the state of Vocational Rehabilitation within the VT WC arena. We have been part of the Blue Ribbon Commission evaluating the issue and members participated in the public hearing held last week on this issue.
Keith Kasper & Joseph Galanes