Vermont Bar Association
Board of Managers Meeting
January 13, 2012
Le Centre Sheraton, Montreal, Quebec

Present: Will S. Baker, Amber L. Barber, James F. Carroll, David C. Carter, Therese Corsones, Timothy Doherty, Sandra Everitt, David R. Fenster, Austin R. Gray, Daniel P. Richardson, Edward J. Tyler, Matthew Valerio

Staff: Bob Paolini, Kevin Ryan, Mary Ashcroft

  1. Call to Order: President Jim Carroll called the meeting to order at 10:10 a.m. Austin Gray was introduced. He will take the seat of Ross Feldmann until the next Young Lawyers Division elections in March.
  2. Acceptance of Consent Agenda
  1. Minutes – The minutes from the December 16, 2011, meeting were adopted pending a change under the “Consent Agenda” regarding the date of the meeting, and the insertion of the words “between the Chittenden County Bar Association and” in the first sentence of the President Elect’s Report, after the words “ongoing discussions” and before the phrase “the Chittenden Family Division.”
  2. Treasurer’s Report – Matt Valerio presented the Treasurer’s Report. He noted that we are a little down in membership compared to this time last year and we need to make a final push to urge people to renew their memberships. Otherwise, he noted, we are in decent shape.After minimal discussion, the Report was accepted.
  3. Board Committee Reports
  4. Operations – Amber Barber reported that the Committee met just prior to the Board meeting. They are developing a list of additional resources for the disaster manual. They are also asking individuals to help outline what they have seen, what entitlements are out there, what grants are available, what are the relevant time frames, and so forth. In addition, they are discussing how the VBA would react to certain sorts of events. They are considering the possibility of developing trainings for employers. They are also looking at ways to keep the resource pool of lawyers that was developed in response to Tropical Storm Irene up-to-date. The Committee hopes to expand the manual to cover other sorts of disasters and to include a list of resources and places to turn for various sorts of help. Jim Carroll asked that the manual address the VBA’s mobilization in response to a statewide disaster. Bob Paolini indicated that the VBA is looking at other bars around the country to see if we can adapt their operations plans. Lisa Maxfield has been able to obtain copies of disaster manuals from other states and has distributed them to the Committee.
  5. Membership – David Fenster indicated that the Membership Committee has not met. No further discussions have occurred regarding item # 6 on the agenda for the January 16 meeting.
  6. Program and Planning – Dan Richardson reported that the Committee has not met since the December Board meeting.
  7. Pro Bono – Teri Corsones spoke about the pro bono award, for which nominations close February 1. The Committee will make recommendations to the Board at the February meeting. She also indicated that the Committee would like to put together another pro bono conference in October with the theme of “Vermont Strong.” Mary Ashcroft noted that she is completing grant reports for the VBF and will be applying for grants shortly. She stated that in Windham County they have now trained five panels and the low bono project is up and running. The grant for a Windsor-Orange project has been received and they are setting up CLE programs for late February and mid-March. The Bennington project is doing well, as is the Rutland project (which now has placed 350 cases). Washington County has expressed interest in its own project and may apply in the new round of VBF competitive grants. Mary will not be seeking new funds for the Windham and Windsor-Orange projects. A revenue enhancement committee of the VBF is looking at monies that currently go to the general fund (e.g., money in trust accounts for which the client to whom it belongs cannot be found), in hopes that these monies can go into IOLTA funds.
  8. President’s Report – Jim Carroll said that he had nothing to report.
  9. President Elect’s Report – Amber Barber said that the meeting with clerks and court operations managers to open a dialogue about how better to facilitate communication between attorneys and court staff was canceled due to the weather.
  10. Executive Director’s Report – Bob Paolini said that he would be working with Kevin Ryan on getting the word out to members about the location of the online attorney directory on the new website. He also noted that we would like to develop an online tutorial on how to use the website; he will work with Kevin to determine how best to do this.

Bob stated that Eric Avildsen of Legal Aid was looking at a $100,000 cut in funding. Legislators need to understand that LawLine and Legal Aid are related. Bob will work with Eric to come up with a simple handout for relevant legislative committees. Bob also noted that they will be conducting six interviews for the next poverty law fellow. It is likely that three will get a second interview. He also noted that there is still a ways to go on fundraising for the fellowship. He also reported that Tom Garrett has gotten a grant for a new position focusing on disaster recovery and that Maggie Fry has been moved out of LawLine to step into this position.

Next, Bob reported that the Senate, for the first time since the early 1980s, went into a committee of the whole to hear the report of the Post-Irene Property Law Task Force. Considerable work is being done at the legislature on the recommendations of the Task Force.

Bob stated that a number of bills have been introduced to implement summer study committee work. On the child support bill, two days of testimony were held last week and a number of changes are being made in the bill. On the bill calling for notice in probate proceedings, Mark Langan testified last week. Nothing yet has emerged on highway condemnation. The minor guardianship group noted in their report that they are not done working yet.

There was considerable debate on the list serve regarding the report of Ron Shems and Deb Markowitz calling for doing away with the Environmental Court and replacing it with a professional board. In addition, the provision of the Shems-Markowitz report calling for de novo appeals has received much list serve discussion. Gerry Tarrant testified on this bill last week and will be returning to testify again in the future.

Bob reported that Matt Valerio and Dan Maguire testified recently on the search warrant bill.

Finally, Bob spoke about the prebate income sensitivity decision. Speaker Shap Smith says something must be done to fix this without releasing income sensitive information. A meeting is being held this morning (Jan. 15) with Jeff Kilgore representing the Property LawSection. Kilgore reports by email that a number of potential fixes were discussed at this meeting.

  1. Staff Reports – Kevin Ryan spoke briefly about plans for the Mid-Year Meeting. He also reported that a solution has been worked out with the Collaborative Law Section that will permit them to sponsor the two-day training they have been wanting to hold, assuming a certain number of people have registered a month prior to the date scheduled for the event.
  2. Section Liaison Reports – There were no section liaison reports.
  3. VBF Report – There was no VBF report.
  1. Emerging Issues

David Carter stated that certain banks have “closed out” some attorneys from closings by telling clients what attorney they must work with. Dual representation is allowed according to a VBA advisory ethics opinion, and banks are taking advantage of that by insisting that clients use “bank attorneys.” Attorneys are being told by the banks what they must charge (e.g., $95 for title search and closing), which effectively prevents not favored attorneys from taking this work. Carter stated he has written Elliot Berg and Mike Kennedy regarding this matter.

Carter also said that the Franklin County Bar will object to a proposed rule that would permit the moving of a case from one county to another. The Franklin County Bar sees this as “a foot in the door toward shutting down outlying courthouses.” There was some discussion among Board members regarding the point of this rule, and it was noted that this is only a criminal rule right now, though there may be “more to come.” Dave Fenster said he will bring these concerns to the criminal rules committee.

Mary Ashcroft reported on a family case that has caused a ripple, involving a paternity action in which there are two possible fathers. The case is at the Supreme Court. Penny Benelli is handling an informal request for amicus briefs on behalf of one of the potential fathers.

Dan Richardson spoke regarding a SAFE Act issue, on which he called BISHCA, involving licensed lender vs. seller finance. There is a proposed change stating you have to be “in the business of being a lender” (rather than merely “acting as a lender”); this amounts to a return to an earlier rule.

Dan also reported on a proposed rule from the Board of Bar Examiners regarding the clerkship requirement. The proposed rule would eliminate the requirement for attorneys who have practiced in another state for a minimum of five years. No change has been proposed on the clerkship requirement for new lawyers. Austin Gray noted that the practice of having only four swearing-in ceremonies per year jams up new attorneys seeking to get started on their career. There was considerable additional discussion on this subject.

Kevin Ryan and Dan Richardson both spoke regarding the proliferation of fraud scams targeting lawyers.

Dan Richardson spoke about a spate of embezzlements in municipalities and the absence of any proposed legislation to address the problem. Jim Carroll suggested that a request should go from the Board to Bob Fisher, chair of the Municipal Section.Richardson also commented that a number of towns operate without professional auditors. There followed extensive discussion about issues with municipal governments.

Will Baker spoke about administrative hearings in which there is no way for those appearing pro se to get any information about what is going on. This puts pressure on the staffs of administrative agencies—or worse, the attorneys at those agencies who are representing the other side. It is important to get the word out that there are lawyers out there who will help. Teri Corsones suggested changing the notice to tell people that, if they have questions, they should contact the VBA, which will then route them through the lawyer referral service. Baker noted that these cases are perfect for unbundling.

Teri Corsones said that Bob Greemore wants more interaction between the courts and the bar. He hopes that there can be a section on the VBA website for court information, especially information from oversight committees.

Sandi Everitt spoke about Internet lenders that are engaged in fraud; she said that legislation has been proposed to BISHCA and it has been introduced. She also noted that many gift card coupons (especially from online promotions) are in violation of Vermont gift card law regarding expiration dates.

Amber Barber spoke about the recent Supreme Court case regarding inheritance and trusts (Billings v. Billings). She noted that this decision will likely make divorce more expensive and that it probably needs a statutory fix. Extensive discussion followed.

  1. Action
  2. Enrollments - A motion was made to accept the following persons as members of the Vermont Bar Association: Attorney Members: Emily Bayer-Pacht, Sharon J. Gentry, Kyle L. Hatt, Margaret A. Himmelsteib, Erin Jacobsen, Morgan D. Jones, Alexander J. LaRosa, Isaac J. Mass, Karla J. Nuissl, Adam L. Powers, Shannon C. Salembier, Lei Raymond Sun; Associate Members: Michael J. Case, Janssen D. Willhoit, Ellen Kreitmeier, Ashley M. LaRose, Lisa M. Penpraze,. The motion passed unanimously.
  3. Unfinished Business – No unfinished business was discussed.
  4. New Business – There was no new business.

There being no further Old or New Business, it was moved, seconded, and passed that the meeting adjourn. The meeting adjourned at 12:16 p.m.

Respectfully submitted,

Kevin F. Ryan

Vermont Bar Association