Rule 8 - Suspension and Hearing Process(A)Basis for Suspension. An attorney's license is subject to nondisciplinary, administrative suspension if: (1) the attorney was subject to reporting for the prior reporting period and submitted a relicensing statement but failed to timely file either a certification of completion of the Rule 3 MCLE requirements or an acceptable makeup plan with the makeup plan filing fee;(2) the attorney timely filed an acceptable makeup plan but failed to timely file a certification of compliance with the makeup plan; or(3) the Board determined, based on an audit, that the attorney failed to comply with the Rules for a prior reporting period.(B)Suspension Process.(1)Notice. If the Board determines that an attorney is subject to license suspension under (A), the Board will promptly notify the attorney of that fact, the basis for the suspension, and the attorney's obligations to respond to the notice per (B)(2). The notice will be given in writing and sent to the attorney by certified or registered mail, return receipt requested. The Board's failure to send timely notice does not relieve the attorney of the duty to comply with the Rules.(2)Response. Within 14 days of when the notice of suspension is sent, or later if the Board extends the time for good cause, the attorney must respond by filing one of the following with the Board: (a) if the basis for the suspension is (A)(1), a form reflecting compliance or an acceptable makeup plan and makeup plan filing fee;(b) if the basis for the suspension is (A)(2), a certification of compliance with the makeup plan;(c) if the basis for the suspension is (A)(3), an acceptable makeup plan and makeup plan filing fee; or(d) a written answer to the Board's notice of suspension.(3)Failure to Respond; Admission of Noncompliance; Suspension. If an attorney fails to timely respond to the Board's notice of suspension, or files an answer that admits noncompliance, the attorney's license to practice law in Vermont will be immediately suspended on a nondisciplinary, administrative basis. The State Court Administrator or designee will send notice of the suspension to the attorney by email and to the courts of the State of Vermont.(4)Hearing. If an attorney files a written answer under (2)(d) and does not admit noncompliance, the Board will schedule a hearing within 30 days of the filing.(C)Hearing Process. A hearing convened pursuant to (B)(4) will be conducted as follows: (1)Panel. The hearing will be before a 3-member panel of the Board. At the commencement of the hearing, one panel member will be designated as the presiding member.(2)Attorney's Participation. The Board must provide the attorney with written notice of the hearing. The attorney may appear and present information to substantiate compliance with the Rules.(3)Counsel. The attorney is entitled to be represented by counsel at the hearing. The panel may appoint counsel to present evidence of the attorney's noncompliance with the Rules.(4)Rules of Evidence; Subpoena Power.(a) The Vermont Rules of Evidence apply, but evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs and not precluded by statute or privilege. All testimony must be under oath administered by the presiding member of the panel.(b) The Board may issue subpoenas or compel testimony.(5)Hearing Closed. Unless the attorney requests otherwise, the hearing will be closed except to members, agents of the Board, the attorney, and the attorney's counsel and witnesses.(6)Recording of Hearing. The panel will record the hearing. If the panel finds that the attorney has not complied with the Rules, it must produce a transcript of the hearing at the Board's expense.(7)Expansion of Record. If, after the hearing, the panel seeks to expand the record to consider additional evidence, it may do so after providing the attorney with notice and an opportunity to be heard.(8)Dismissal. At any time before the panel makes a decision pursuant to (D)(1), the Board may, in its discretion, dismiss the proceeding if the Board finds that the attorney is in compliance with these rules and that dismissal will serve the policy of these rules.(D)Panel's Decision After Hearing.(1)Decision. After the conclusion of the hearing, or the time necessary to expand the record, the panel will prepare a written decision setting forth its findings, conclusions, and recommendations.(2)Parties Served. The panel must serve its decision on the attorney and attorney's counsel and file a copy with the Supreme Court. The decision must inform the attorney of the right to appeal.(3)Right to Appeal; Supreme Court's Review. The attorney has the right to appeal the decision to the Supreme Court. The attorney's notice of appeal must be filed within 30 days of the date the decision is filed with the Supreme Court. Within 30 days of the date the decision is filed, the Court may also order review of the decision on its own motion. If the attorney does not file a timely notice of appeal and the Court does not order review on its own motion, the panel decision will be final.(4)Supreme Court Review. The Court may take any action consistent with its constitutional authority. The Vermont Rules of Appellate Procedure apply to an appeal. If the Court orders review on its own motion, it will specify the issue(s) to be addressed by the parties. The Court may remand the decision to the Board, with appropriate directions for an expanded record or additional findings, while retaining jurisdiction of the matter. The matter will be continued pending the Court's receipt of the requested expanded record or additional findings.(5)Appeal Public Record. The notice of appeal and all subsequent proceedings are public.(6)Suspension. The attorney's license will be immediately suspended on a nondisciplinary, administrative basis as in (B)(3) if: (a) the panel decision recommends suspension and there is no appeal or review under (A)(3); or(b) following appeal or review, the Supreme Court orders suspension.Amended Feb. 10, 2020, eff. 7/1/2020.Board's Notes
This rule is drawn from the prior rules § 9(d)-(i), and (k), although the suspension and hearing processes have been revised substantially to fully lay out attorneys' rights and obligations and to make these processes consistent with the reporting process of Rule 7(B) and with A.O. 41 and the Rules of Admission.
In the prior rule § 9, when faced with an attorney who does not challenge the Board's statement of noncompliance, the Board could not suspend the attorney but could only make a recommendation of suspension to the Supreme Court. In contrast, the new rule parallels the suspension process in A.O. 41 and the Rules of Admission, in which the authority to make the initial suspension decision is given to the licensing authorities, in this case, the Board. Like A.O. 41, the new rule makes it clear that any suspension under these rules is a nondisciplinary, administrative suspension.
The new rule follows the prior rule in allowing an attorney who contests noncompliance to have an evidentiary hearing. The hearing process in the new rule is based on the hearing process for character and fitness hearings laid out in the Rules of Admission and provides that the ultimate arbiter in cases where an attorney contests noncompliance is the Supreme Court.
The Board notes that any action it may take in response to a violation of this Rule does not deprive either Disciplinary Counsel or the Professional Responsibility Board of pursuing such disciplinary action as may also be warranted.