Rule 79.1.Appearance and withdrawal of attorneys and self-represented parties

Reporter’s Notes—2023 Amendment: Rule 79.1(e) is amended to make clear that admission pro hac vice is a matter of course on motion supported by the pro hac vice licensing card issued by the Court Administrator pursuant to A.O. 41, § 16. The card is issued on payment of fee and on the basis of the applicant’s certification that the applicant is not suspended or disbarred in any jurisdiction and is in good standing and admitted to practice in the licensing state. The licensing card is sufficient to show the court where the case is pending that the applicant is in good standing and not subject to any discipline. The court retains control over the conduct of the out-of-state attorney and of the sponsoring attorney, whose signature is on the motion, and the court may revoke the admission for good cause. This amendment is made with contemporaneous amendment of identical provisions of V.R.Cr.P. 44.2(b), V.R.P.P. 79.1(d) and V.R.F.P. 15(a).

Reporter’s Notes—2022 Amendment: Rule 79.1 is amended to clarify what is required from a self-represented party. The title of the rule is amended to indicate that it contains provisions related to self-represented parties. The headings of subdivisions (b), (c), and (d) are amended for clarity. Subdivision (b) is amended to make the contact information on a notice of appearance the same as for Rule 11(a). Rule 79.1(d) requires self-represented parties to file and sign a Notice of Appearance for self-represented party, which is available on the judiciary website https://www.vermontjudiciary.org/sites/default/files/documents/100- 00265.pdf. The form contains contact information to facilitate both service by other parties and notice by the court. The form also allows self-represented parties to consent to receive service by email. Even where a self-represented party does not consent to email service, the party may be served using an email provided on a pleading if there is no known physical or postal address. This conforms to a contemporaneous amendment to Rule 5(b)(2)(B)(ii). Rule 79.1(e) and (h)(4) are amended to replace the word “paper” with “document.” Rule 5(i)(1) incorporates the broad definition of “document” from the 2020 Vermont Rules for Electronic Filing for purposes of filing and service. Rule 79.1(i), which required attorneys to provide an eCabinet registration number, is deleted as obsolete.

Reporter’s Notes—2020 Amendment: Rule 79.1(g) and (i) is amended to clarify that its cross references are to the 2010 Vermont Rules for Electronic Filing.

Reporter’s Notes—Second 2018 Amendment: Rule 79.1(e) is amended to comport with general revisions of Administrative Order No. 41, governing Licensing of Attorneys, effective May 15, 2017. In the revision and restyling of A.O. 41, former § 13, Admission Pro Hac Vice, is now designated as § 16 of A.O. 41.

Reporter’s Notes—First 2018 Amendment: Rule 79.1(b) is amended to extend its 5-day time period to 7 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—2013 Amendment: Because of the use of e-mail delivery of court-generated documents and notices pursuant to Administrative Order No. 45, it has become important that court staff have the unique identifiers of lawyers appearing in cases to send the notices and documents to the proper e-mail address or addresses. The necessary identifier is the eCabinet registration number assigned when the lawyer registered on the judiciary website to establish notification e-mail addresses. Note that a lawyer who practices from different offices can have more than one registration number. The amendment to this rule, and other filing rules, requires the lawyer to provide the unique identifier in the first filing in the case.

Reporter’s Notes—2011 Amendment: See Reporter’s Notes to simultaneous amendment making the Vermont Rules for Electronic Filing permanent.

Reporter’s Notes—2010 Amendment: Rules 4(b), (l )(3); 5(b), (e), (f); 6(a), (e); 10(d); 11(a), (b); 26(g); 40(a), (b); 45 (a)(1)(G); 77(c), (d); 79(a)(1), (2); 79.1(g) of the Vermont Rules of Civil Procedure rules are amended or added to conform to the Vermont Rules for Electronic Filing as adopted by simultaneous emergency amendment. See Reporter’s Notes to those rules.

Reporter’s Notes—2009 Amendment: Rule 79.1(h), permitting a lawyer acting pursuant to a limited representation agreement with a pro se client to enter a limited appearance in the Superior Court (“unbundling”), is now made permanent. The rule was originally adopted by order of February 6, 2006, effective April 14, 2006, for a period of two years, extended until April 10, 2009, by order of March 13, 2008. At the direction of the Supreme Court, the Advisory Committee on Rules of Civil Procedure inquired about use of the rule and, with the assistance of the Vermont Bar Association, conducted a survey of practice under it. While the survey reflected relatively little use of limited appearance, a significant number of lawyers who used the procedure found it helpful, and there have been no reports of problems in its use. The rule has proven effective in achieving its original purposes of providing assistance of lawyers to courts and litigants at critical stages in trials or other proceedings and encouraging lawyers to take on pro bono representation. See Reporter’s Notes to 2006 amendment adopting the rule. It may be anticipated that greater familiarity with the rule and growing interest at the bar in providing pro bono representation will lead to increased use of the unbundling procedure.

Reporter’s Notes—2006 Amendment: Rule 79.1(e) is amended simultaneously with an amendment to § 13 of Administrative Order No. 41, Licensing of Attorneys. A.O. 41 requires an attorney not admitted to practice in Vermont to file a pro hac vice licensing statement and pay the fee. This amendment authorizes the trial court to admit the attorney to practice in a particular action after the attorney has met the requirements of A.O. 41. Rule 79.1(h) is added to permit a lawyer acting pursuant to a limited representation agreement with a pro se client to enter a limited appearance for one or more purposes that the rule specifically permits. The rule thus facilitates “unbundling” of court-related legal services in order to assist both litigants and the courts by providing the assistance of a lawyer at critical junctures in a trial or other proceeding. The opportunity to make a limited appearance also addresses a further critical need by encouraging lawyers to take on pro bono clients without being committed to full representation. The idea of unbundling has been widely discussed in the bar and has been adopted in other states. See T. Garrett, “Unbundling Legal Services,” 30 Vt. Bar Jour., no. 2, pp. 30-34 (2004); Me. R. Civ. P. 5, 11, 89; Me. Bar R. 3.4(i), (j), 3.5(a)(4), 3.6(a)(2). The present rule applies only to actions governed by the Vermont Rules of Civil Procedure. By virtue of V.R.F.P. 2(a)(2), 4(a)(2), 9(a)(2), V.R.C.P. 79.1 does not apply to actions in Family Court. Cf. V.R.F.P. 15(a). At the outset, it is important to distinguish between two forms of unbundling: “Limited representation” embodies the whole range of legal services as to which a lawyer and client may agree to limit the objectives or scope. “Limited appearance” is a form of limited representation that refers to an appearance by a lawyer in a court proceeding on the client’s behalf only for certain specific steps in the process as to which lawyer and client have agreed. “Limited representation” is an aspect of the lawyer-client relationship, controlled and defined by the Rules of Professional Conduct and the law of contract, agency, and tort. See V.R.P.C. 1.2(c) and Comment. The present amendment does not address these broader issues. It is intended to clarify some very specific procedural issues raised by the use of limited appearance. Rule 79.1(h)(1) confines the use of limited appearance under the rule to situations in which the client is pro se and has or will enter a general appearance in that capacity. That general appearance by the client is not affected by a limited appearance under the rule and remains in effect for the duration of the action unless superseded by the general appearance of a lawyer for the client. The fact that the client has appeared generally should allow opposing counsel to communicate with the pro se client pursuant to V.R.P.C. 4.2 because of the difficulty of sorting out issues applicable only to the limited appearance. See T. Garrett, supra, at 33. It is the responsibility of the lawyer filing the limited appearance to caution the client about such communications, which, of course must be conducted as provided in V.R.P.C. 4.3. While the concept of limited appearance may well be useful in situations where another lawyer has entered a general appearance for the client, those situations are best handled by agreement between the lawyers as to the role of each and the court’s inherent power to control the course of the trial. The lawyer who has appeared generally has assumed the responsibility for receiving notice and for obligations such as those imposed by other provisions of Rule 79.1. Under Rule 79.1(h)(1), the limited appearance must be pursuant to a specific agreement with the client entered into pursuant to V.R.P.C. 1.2 and must be for one or more of the seven specific purposes outlined in Rule 79.1(1)(A)- (G). Subparagraph (G), requiring leave of court for a limited appearance for part of a trial or hearing, recognizes the need of the trial judge to maintain control of the proceedings. “A specific issue” is a particular factual or legal question. “A specific portion of a trial or hearing” is a particular procedural step, such as the examination of a particular witness. Rule 79.1(h)(2) requires the lawyer entering a limited appearance to file and serve a brief statement describing the scope of the appearance and making clear that the client is pro se and has or will enter a general appearance. The notice is to be provided “as soon as practicable,” thus allowing the limited appearance to be undertaken without advance notice when necessary and appropriate. Ordinarily such notice should be given sufficiently in advance of the appearance to assure that opposing parties and counsel, as well as the court, are aware of the appearance. Entry of the appearance on the docket is intended to facilitate the notice provisions of paragraph (4). The notice of appearance itself, as well as the lawyer’s actions under it, are subject to Rule 11. Rule 79.1(h)(3) makes clear that a lawyer undertaking a limited appearance is not obligated to carry on the representation beyond the matters undertaken. Though a motion under Rule 79.1(f) for leave to withdraw is required, the motion will be granted as a matter of course if the purpose of the appearance has been accomplished. If that purpose has not been accomplished, however, the notice and motion provisions of Rule 79.1(f) for withdrawal after a case has been set for trial apply. In either case, the fact of withdrawal must be noted on the docket. Paragraph (3) does not address the situation of a lawyer who goes beyond the scope of the limited appearance. Under its inherent power to control the trial, and subject to the wishes of the client, the court may extend the terms of the limited appearance, revoke it, or convert it to a general appearance. Rule 79.1(h)(4) provides that for the duration of a limited appearance, any paper required under Rule 5 to be served on a lawyer for a party must be served both on the pro se party who has entered a general appearance and on the lawyer who has entered the limited appearance. This provision avoids the problem that would be faced by a pro se party in determining which papers are relevant to the limited appearance and thus should be transmitted by the party to the lawyer.

Reporter’s Notes—1987 Amendment: Rule 79.1(e) is amended to regulate the conduct of attorneys appearing pro hac vice. An attorney not admitted in Vermont but admitted and in good standing in another state or the District of Columbia may, on motion of a member of the bar of Vermont who is actively associated with that attorney in a particular action, be permitted to practice in that action. The matter is left to the court’s discretion. The motion must designate which attorney will act as lead counsel; this is designed to minimize the scheduling conflicts presented by pro hac vice appearances. It will make explicit to the client as well as to the attorneys and the court that if the lawyer not acting as lead counsel has a scheduling conflict, the matter may proceed without that attorney’s presence. The rule also makes explicit that permission to appear pro hac vice may be revoked at any time for good cause. Good cause includes violation of Vermont’s Code of Professional Responsibility, to which all attorneys appearing pro hac vice are subject, see Administrative Order 9, Permanent Rules Governing Establishment of Professional Conduct Board and Its Operation, or it may include scheduling conflicts or similar matters of concern to the court. The rule requires the active participation of in-state counsel even if not designated as lead counsel. All process, notices and other papers must be served upon local counsel. All papers filed with the court must be signed by local counsel pursuant to Rule 11. The court may require the attendance of local counsel at any proceeding. This rule is patterned after Maine Rule of Civil Procedure 89(b), and is identical to V.R.Cr.P. 44.2(b), effective in 1987.

Reporter’s Notes—1986 Amendment: The reference to “nonresident attorneys” found in former Rule 79.1(e) has been replaced by reference to attorneys who have not been admitted in Vermont. This change is being made to ensure that the applicable standard is admission, not residence, in light of Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105 S. Ct. 1272, 84 L. Ed. 2d 205 (1985).

Reporter’s Notes: This rule has no equivalent in the Federal Rules. It is adapted from former County Court Rule 1, but, in view of the provision of Rule 11 that all pleadings be signed, the requirement of a formal written appearance has been eliminated. Instead, Rule 79.1(b), based on Local Rule 4 of the United States District Court for the District of Maine, provides that the attorney’s signature on the pleading constitutes an appearance. A separate appearance is required only of an attorney who has not signed a pleading.