SPRING 2020 • VOL. 46, NO. 1 VERMONT BAR JOURNAL

DEPARTMENTS 5 PRESIDENT’S COLUMN

PURSUITS OF HAPPINESS 6 — Mike’s Garage: An Interview with Mike Kennedy

RUMINATIONS 14 — Impeachment in Vermont

WHAT’S NEW 20 — COVID-19 Updates 24 — Professional Responsibility and Coronavirus

BE WELL 26 — Time for Holistic Spring Cleaning “Spring” by Jennifer Emens-Butler, Esq. 45 IN MEMORIAM

46 CLASSIFIEDS

FEATURES 28 VBF Grantee Spotlight: WomenSafe Sarah Wilson, Esq.

29 Thank You for Supporting Pro Bono Services

30 Third Annual Martin Luther King, Jr. Poster Essay Contest for Middle School Students

31 Guidelines to Closing Your Practice Mark Bassingthwaighte, Esq.

33 The SECURE Act Changes How Beneficiaries Inherit Retirement Accounts Alison Sherman, Esq.

35 Paralegal Licensure is a Solution - Part 2 Dan Richardson, Esq.

38 Kosovo: International Criminal Justice in Slow Motion Judge Dean Pineles (ret.)

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4 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org by Elizabeth Novotny, Esq. PRESIDENT’S COLUMN

Many years ago, I received performance ior, 42(4), 385–401). feedback from a supervisor. The feedback In a recent article by Susan Blakely Smith was positive so I was feeling pretty good. As (How Women Lawyers Are Perceived: The I was leaving, the supervisor offered one fi- Double Bind, October 2019, Ms. JD https:// nal thought: You might try to be more femi- ms-jd.org/) the author noted: nine. I stopped in my tracks because he had unintentionally just delivered a gut punch. I One female trial lawyer who is also managed to calmly ask him what he meant a former judge and prosecutor, ac- by that comment because I wore make-up, knowledges the double standard and jewelry, dresses and heels to work and in accepts the challenge. However, she court. He explained that some of the male also has the following advice for wom- lawyer/adversaries --the “shorter ones” he en lawyers in the courtroom: Wear noted--were intimidated by me. He posit- dresses, low heeled shoes, little to no ed that their reaction was due to my court jewelry, smile a lot but don’t appear to room presence, height and self-confidence. be laughing. He finished by explaining that he debated whether to share this with me but in the end In September 2018, Professor Lara Ba- opted to share in the event I wanted to in- zelon wrote an article published in the corporate the feedback to become a more Atlantic about this phenomenon enti- effective litigator. I, on the other hand, had tled What It Takes to Be a Trial Lawyer If absolutely no idea what to do with the ad- You’re Not a Man (https://www.theatlan- • Consult with experts to assist in im- vice because it was not really about being tic.com/magazine/archive/2018/09/female- proving the workplace culture particu- more feminine it was about making male lawyers-sexism-courtroom/565778/). Pro- larly as it may relate to implicit bias. adversaries feel less threatened and bet- fessor Bazelon interviewed female trial • Attend the VBA’s CLE series on Implic- ter about themselves. I told him that I can’t lawyers who expressed the many forms of it bias in our Profession or other simi- change who I am and noted that this was this double standard. The takeaway is that lar community discussions. Race is the more their issue than mine. A good intel- women lawyers spend a lot of time thinking next subject to be addressed in the lectual answer that belied the fact the “ad- about how to navigate these turbulent wa- VBA series on implicit bias (Mid-Year vice” dinged my confidence, raised some ters and in the end it always comes down to Meeting, March 27, 2020). self-doubt and just plain hurt. concocting the winning formula for how we • Review the American Bar Association There is a lot to unpack from that inci- should act or dress. website or read the Harvard Business dent which sadly was not an isolated one in This double standard has been the sub- Review for articles and other resources my 30 + year career. But for today, I simply ject of so many other studies and articles on this topic. offer it as an example of what I and other that I cannot dive into all of them here. Suf- women experience in our profession. While fice to say most female lawyers I’ve encoun- The science behind implicit bias suggests court room presence, confidence, com- tered know it exists. So, the results of the that we are apt to act on our unconscious mand and even well-placed emotion are of- recent Vermont Bar Association (VBA) and bias if we act in haste without taking a mo- ten regarded as positive qualities among Women’s Division Survey on Bias did not ment to be self-aware. We all need to take male trial lawyers, female trial lawyers ex- come as a surprise to me. a moment and check ourselves by question- hibiting the same behavior receive mixed Gender bias is identified as a problem ing what is really behind our reactions and reviews. Many women and notably female in our profession by 71 % (226) of the 343 judgement of colleagues. lawyers are keenly aware they are subject to VBA members (male and female) taking the We can also start changing our workplace a different standard: damned if you do and VBA Gender Bias survey. In addition: culture by recognizing that not everyone in damned if you don’t. If women are too as- • 80% (177/222) of women taking the the room looks like us or shares our life ex- sertive they run the risk of being perceived survey state that they had personally periences; by being sensitive to colleagues as strident and abrasive. If women are not experienced gender bias in the work- in the minority among the collective; by be- assertive enough they run risk of not being place or workplace setting. ing curious about what we are feeling about taken seriously or lacking command of their • Those experiencing bias attributed a colleague and where those feelings come work. it to a supervisor (52.9 %), opposing from; and by thinking about how to talk In a recent study using juries, the authors counsel (47.5 %), client (42.1 %), co- about bias in our workplace in a way every- concluded that female attorneys express- worker (38.7 % ), colleague (37.7 %), one can talk about it candidly. ing anger during closings were regarded judge (29.4%), litigants (23 %), court We are a thoughtful and caring group of as “significantly less effective” while male personal (13.2 %), other counsel (10.7 people. If we all set the intention to prac- attorneys expressing anger in closing ar- %) and other (8.8 %). tice self-awareness and social awareness, I guments were regarded as “significantly know we can collectively improve our work- more effective”. (Salerno, J. M., Phalen, H. What do we do with this information? place culture and address bias in a way that J., Reyes, R. N., & Schweitzer, N. J. (2018). We can argue it or learn from it. I suggest moves our profession toward meaningful Closing with emotion: The differential im- we all lean into the latter and be curious and lasting change. pact of male versus female attorneys ex- and open to change. We can easily research The Gender Bias survey results summary pressing anger in court. American Psycho- this topic by using the internet, publications is posted on the VBA website under About logical Association, Law and Human Behav- and local library. We can also: Us. www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 5 PURSUITS OF HAPPINESS Mike’s Garage: An Interview with Mike Kennedy

JEB: We are here, in separate home of- fices because of COVID-19, and I’m inter- viewing you, Mike Kennedy for our Pur- suits of Happiness column. So Mike, I’ve been wanting to do this for a very long time since you walk the talk on Pursuits of Happiness and are a real champion for this cause. Thank you for agreeing to be inter- viewed! MK: Well, thank you for interviewing me.

JEB: Originally I was thinking of mara- thon man for our title since we are going to talk about marathons, but Mary at our office had this idea of calling it Mike’s Ga- rage, as we go through all the medals and items you have in your bar garage, a hap- py place! I suppose we should start talking about running first. Normally, we talk about peo- ple’s passions and often find that the inter- est developed when they were a child, but my understanding is you never used to run, is that right? MK: That is absolutely correct. For the longest time I couldn’t stand running. I box or around the big block. I couldn’t, I tail between my legs. thought it was something that just any- hated it! body could do easily and that it was no big JEB: But you didn’t quit. deal. And then there came a day when that JEB: That’s so funny. People who know MK: I didn’t quit. And then I got really changed. you know you have a passion for running! lucky. I got assigned the last leg of the re- So what changed? lay, which means you get to cross the fin- JEB: And it wasn’t in high school! MK: I remember exactly what changed. ish line. You’re cruising down the bike path MK: No, it was not in high school. I think In 2006, a bunch of my friends who had al- in Burlington and you’re passing all these the furthest I ever ran in high school may- ways entered a relay team in the Vermont people. So at the time, I literally thought be four miles. There used to be the block City in Burlington. That year, they asked I was like an Olympic champion. A few when we were kids where my mom would me to be on their relay team. Two of the years later I realized that I was only pass- say ‘go do the big block’ to sort of get us friends used to have this big party after ing people because they were doing the out of the house and it’s four miles around the marathon and the party was awesome, full marathon! Anyhow, the race ends at that block. And that was the farthest I ever but I never actually had been on one of the the Burlington waterfront. You run through ran until 2006. teams that ran. I figured well I might as well this skinny chute where there are just tons just get in the spirit of the day and be on of people on either side cheering and it’s JEB: Well, that’s a big block though, four a relay team after all. How hard could it be great, so motivating. And I became ad- miles, I don’t think I could run even four to run a five-mile segment on a relay team? dicted! And from there I just started run- miles when I was in high school. Did you do ning more races, increasing my distances, other sports in high school? JEB: It doesn’t seem easy to me, but I’m and then eventually ran a full marathon two MK: I played football and basketball. not a runner. years later. MK: I got assigned a leg that was 5.2 JEB: Okay. So no running but you were miles and I was still thinking it was no big JEB: Wait, it was the excitement of the athletic, then. And then you played bas- deal. The race is always at the end of May. finish line that got you addicted to running, ketball. And you coached in your adult life In mid or late April, I was thinking maybe I not the running itself? too? better go practice a little bit. So I went for MK: I think that’s kind of true. I never MK: Right. I started coaching when I was a run. I didn’t even make it a mile before I thought I was going to stick with it, I just in college and I’ve pretty much coached had to stop gasping out of breath and in so was thinking that I was just going to get one team or another on one level or anoth- much pain! I panicked thinking I was never through this relay. But I liked the running er since I was at UVM. going to be able to do this. part, mostly being in a race, the competi- tive part. So, I stuck with it. Six months JEB: But again, you didn’t run at UVM? JEB: Well, they say the first mile is the later I ran my first half marathon. The feel- Or at least 4 mile runs for fun? hardest, right? ing of running through the finish at my first MK: No, from high school until I was 39, MK: Yes but that that day, the first mile race definitely stuck with me and motivat- I wouldn’t even do a casual run to the mail- was the only mile! I walked home with my ed me.

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JEB: Running a half marathon six months marathon, getting in shape, and the feeling JEB: How many marathons have you run later is impressive. Did you train that whole of accomplishment after. The marathon it- now? time? self is usually great at the start. I’m so ex- MK: I’ve run 21 marathons. MK: Nope. I didn’t have any formal train- cited for it, but there comes a point in the ing but just slowly increased my distances. marathon where I’m thinking why did I sign JEB: That’s incredible in and of itself, but I was winging it. up for another one of these? But within an am I right in asking: didn’t you run two full hour of it ending, whether it was a good marathons in the same weekend?! Pursuits of Happiness JEB: Ha! A long time ago my husband one or a bad one, I’m already online look- MK: Yes. It was 2016. One of my goals and a friend decided the night before ing for the next one to do! was to qualify for the Marathon Maniacs. the Quechee half-marathon, while drink- It’s a club. The easiest way to qualify is to ing, that they would run the next day. Our JEB: Because while you still have the run 2 marathons, in 2 days, in 2 different friend had to buy shoes that morning. No adrenaline going, you let the adrenaline states. So, that’s what I did. preparation but they made it. I think it took make the decision! them at least a week to recover though. MK: So true. If I do poorly, it seems the JEB: How’d it go? MK: I’ve had a few races like that! quicker I am online, finding another one to MK: Way better than I expected! Al- do. though, I almost quit in between the two. JEB: That’s why I was asking about wheth- I’d planned so diligently. I kept telling my- er the finish line was the best part because JEB: When and where was your first full self, ‘Mike, it’s two marathons. You can’t I think a lot of people who exercise (myself marathon? race the first one.’ So what did I do? The included) find that it’s the adrenaline rush MK: In 2008, two years after my first run, first one was in Hartford, Connecticut, and the feeling afterwards just for having I ran the Vermont City Marathon. and it was just a beautiful day for running. done it that is the best part, but very much It was like 48 degrees, no wind, no rain, not enjoying it the whole time! JEB: Oh-- So you got to be passed by all some cloud cover and the course is dead MK: That pretty accurately describes ev- the last-leg relay folks this time! flat. I went for it! Finished with my third- ery single marathon I’ve ever run! MK: Exactly. Two years later, I was curs- fastest marathon time ever. But then I was ing the people who were acting like I had done thinking my goodness, what have you JEB: So you don’t enjoy the running? two years earlier! done? I was just beat. MK: I enjoy the process of training for a

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So I hop in the car to drive over to Alba- JEB: You weren’t near that finish line at ny, New York… the time, were you? MK: I was. Going to Boston, I didn’t JEB: A long drive from Hartford to Alba- know if I’d ever qualify again. So, based on ny is not something that is recommended advice from others who’d run Boston, and after running 26 miles?! not knowing if I’d ever make it back, I de- MK: Correct. Not good to take a long cided to make the most of the experience. Pursuits of Happiness drive after a marathon--I could barely un- That included staying a hotel near the fin- fold myself out of the car. I was so beat and ish line. I couldn’t see the actual finish line discouraged. The whole drive I was think- from my hotel room, but I could see a spot ing I’d go to Albany, instead of back to Ver- about 50 yards beyond it. mont, only because I had a hotel room and The day is so strange for me to think I wanted to pick up the race shirt. But I fig- about. My dad was going to meet me ured I’d get there and decide not to run in there that year, but he got sick, so he didn’t the morning. I remember I got to my ho- come. I remember afterwards thinking how tel room and I didn’t even have the normal lucky we were because the logical place carb load pre-run. I grabbed a pint of Ben to meet up with someone after the race and Jerry’s and a couple of beers. would have been at the finish line. After I finished, I was actually going to JEB: That was your healthy dinner choice walk back to the finish line. But the side- before a marathon? walks and streets were so crowded, that I MK: Yes. I was just so frustrated, and I went to my hotel room. I called my dad. just didn’t even care at that point. But the While I was talking to him on the phone, I next day I woke up early and felt pretty became aware of the sirens. At first I was good. And I thought of all the people I’d thinking, well, it’s a big city, no big deal. told about my plans, felt accountable, so I But then it seemed crazy, why are there so ran. And it went surprisingly well. many sirens? So I looked out the window. The Boston Public Library was right next to JEB: Must’ve been the Ben and Jerry’s! my hotel and the marathon’s medical tent MK: I guess so! To this day, I can’t explain was set up in the plaza in front of it. I im- it. The lesson I drew from it was maybe mediately knew that something had hap- sometimes you ought to just show up for a pened. There were ambulances and police race and run it for fun instead of getting so cars everywhere, with people running. This caught up in the competitive aspect. And was not the typical post-marathon medical you might actually do better! tent full of people who had cramps or who were dehydrated, something bad had hap- JEB: Well, that’s true. So many sports re- pened. I hung up with my dad. I remember quire you to let your mind go. What is your checking Facebook. I’d posted my time. A favorite marathon? friend had commented ‘great job, now get MK: Well I’ve run Burlington many times, the hell out of Boston.’ So I turned on the so I have a soft spot for my hometown race. TV. Initially there were reports that there The crowd support is crazy good. As a mar- had been a fire in a kitchen of a hotel near athoner who qualified for Boston, I’m prob- the finish line. Then they reported about ably “supposed” to say Boston. Not my fa- the bombs. vorite: the logistics or the course. I ran a marathon in 2016 in Huntington Beach, JEB: That must have been so scary. And California. It was stunning. The last seven it immediately turned into a manhunt. or eight miles of the course are on a bike MK: Yes. Well, one of the reports was path that’s immediately adjacent to the that they were pretty sure there were more beach and the Pacific Ocean. So the palm bombs in hotels near the finish line. Jen, trees, beach, ocean—they all kind of take I panicked. I don’t deny it. I didn’t know your mind off the mental and physical du- what to do; I just didn’t want to be in a ress you’re under for the last six miles. And hotel that blew up. So I grabbed my bag, I just loved it. That was my favorite course. stuffed everything into it, and I took off. I hadn’t even changed yet. I’ll never forget. JEB: I was wondering if you could let I was on the 33rd floor but I went down the your mind wander and enjoy the scenery stairs, too chicken to be on the elevator, during any of the runs. So was that beauti- because all I could think of was 9-11. I got ful spot your fastest race? to the street and it was just pure pandemo- MK: The fastest marathon I’ve ever run nium and chaos with people running every- was actually in Burlington. It was 2012 and where. I ran too. I’d left my car in Lebanon, was the first time I qualified for Boston. NH and taken the bus to South Station. So I ran to South Station and hoped my bus JEB: I was going to ask about Boston and would get out. Right before the bus was whether you were there for the bombings. to board, I remember these soldiers came, MK: Yes. 2013. My first Boston and that with assault weapons and full tactical gear was the year that the bombs went off. with bomb sniffing dogs. And I thought for

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sure there’s no way we’re leaving. But we JEB: Yes, but that’s still 140 miles min- deal with their own stress and ethical di- did. And that was the first time I ran Bos- imum. I’m impressed! It’s still a lot more lemmas. But you make it fun. Last week ton. than I could run, that’s for sure. Now do when everybody thought the world was you run after work or before work just for ending and we were all trying to figure out JEB: That is an incredible story. Did you fun? what to do with ourselves, you made edu- go back the next year? MK: I prefer before, but I don’t always cational videos in your bar garage and I’ve MK: Yes. I re-qualified. I didn’t have a make it out of bed on time. heard many people say great things about Pursuits of Happiness good training cycle the next year didn’t them. Are you going to keep it up? want to run, but I felt like I had to go back JEB: And I’m sure you find that clears MK: You are too kind. If you say many, because I owed it, not to get sappy on ev- your head as with most exercise? I don’t know how many people actually erybody, but I felt like I owed it to all the MK: Yes. It’s great to have that outlet watch them. victim. and Vermont is beautiful for running, with enough space even during this Pandemic. JEB: I have heard from many people, JEB: Not let the fear control us, but also many is more than four, right? But what to pay tribute and make it a special day. JEB: And it’s something that you can a positive thing you did. MK: And it was MK: Right. That was exactly my thinking. still compete in, which is great. For many more for my own wellness, honestly. There My brother went to support me. I didn’t sports, people are called washed up at 35, is so much uncertainty around. I thought have it that day. About mile 15, I thought I but you can always run. maybe this was a chance to take my mind was going to be sick. I walked into a medi- MK: Yes. No way I can play competitive off stuff for a little bit. Not get dressed up cal tent and asked for Tums or something basketball anymore. But I’ve been really and be all serious about it, but just hang and I almost quit. But the nurse said some- lucky that I’ve never had any hip trouble or out here in my garage bar and talk about thing like don’t give up. And I said, well, back trouble. And you know, my dad’s 82 the one thing I know, which is legal ethics. will you just call my brother and tell him I’m and he’s doing 5K’s and my mom still runs. So that’s what I did. going to be a lot later than I thought? And she called my brother, which was just so JEB: I’m so happy I’ve had a chance to JEB: Well a garage bar is a pretty cool amazing to me. I kept going and finished. interview you for this column. I know you’re place to learn and also unwind! And it’s When I found a spot to sit down, I sat down a fan because you blog about it but also it decorated with all your medals. and cried. All I remember is that my broth- seems like running is a great way to clear MK: Yes! Most of which are participation er was there-- he had no reason to be there your head and practice wellness. You cer- medals – everyone gets one for showing other than to support me. The fact that he tainly work hard to promote well-being up! I didn’t win all of them. But the garage, was always makes me think that sometimes among lawyers and work to highlight the yeah, it’s like a sports bar theme based on doing nothing other than just being there is good things that we are all doing. So thank my coaching & running. a great way to help people. you for being an inspiration to me. MK: And thank you. I think your column JEB: Well you did more than show up – JEB: Absolutely. And it turns out you did is awesome. I don’t know if you found this you actually ran those races! Sounds like need it. What a moment to share. I don’t with your column but I found with well- a peaceful place. And even though we’re know which story is more incredible. ness Wednesday that there are a lot more alone it is always great to see other peo- You must have tons of great stories from lawyers than I expected who actually are ple, even via ethics videos in a garage bar! all your races. So you have the 21 mara- out doing pursuits of happiness and do- Well, I definitely appreciate you taking the thons but they’re not in 21 States. Is one of ing things that are unrelated to the law to time to tell everybody your stories, com- your goals not the 50-state club? help their wellness. Maybe before wellness plete with so many lessons. Like it’s never MK: It is! But the funny thing is you gain became such a big issue, we didn’t want too late to start something. Or how impor- admission to the club once you get to your to share what we were doing, feeling like tant it is to have a passion that takes your tenth state. I’ve done 8, I just have two we had to instead be tough and show how mind off of work. Or how fun it is to see more then I can say I’m in the club. You we work all the time and on the weekends. what other lawyers are doing in their spare know, paltering, like I did the pond trail I’ve just been pleasantly surprised at how time. Even ethics lessons! with Jennifer Emens-Butler! many lawyers are in a band or in a pickup MK: Yes, the garage bar is always open, hockey league or are artists, having a hob- well I guess not to others right now. But JEB: That’s too funny. I mean it is implied by that has nothing to do with the practice anybody who’s a member has a standing when you say you are in the club. Not pal- of law. So in a way, one of the benefits of invitation to stop by the garage bar, hang tering but do you have the actual 50-state the wellness movement has been to destig- out and pursue happiness with me when goal in mind? matize fun. God forbid we have fun! this crisis is over! MK: I used to, but marathons for me are just too hard. I sort of switched it up last JEB: I couldn’t have said it better. I also JEB: I will certainly take you up on the in- year and moved to half-marathons. think being in Vermont, you know--you vitation. Thank you! get the scenery bonus but you can’t eat it- ______JEB: Well you made a Vermont club right -people live here for a reason. There are a Do you want to nominate yourself or a of your own. Did you finish the County lot of people who just enjoy what Vermont fellow VBA member to be interviewed for club? has to offer and just be outside. Even in the Pursuits of Happiness? Email me at jeb@ MK: Oh, that’s right. I forgot about that. winter--I know I can’t get you to love cross vtbar.org. Two years ago, I made it my goal to run country skiing, but maybe you will some- at least one 10-mile run in every County in day. Vermont. Yup, did it. A friend is trying to MK: Someday maybe. run at least a mile in every town in Vermont and there’s what, 251 of those? I only had JEB: I know one of your other law-relat- to do 14. ed passions is educating lawyers on how to

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by Paul S. Gillies, Esq. RUMINATIONS Impeachment in Vermont

Now that the impeachment trial in Wash- ington has ended, unless you are entire- ly exhausted, perhaps a look back at how Vermont has applied the sanction would be interesting. As with the federal Consti- tution, in Vermont it’s a two-step process that begs many questions of process and definition. The House of Representatives, by a two-thirds vote of its members, may vote to impeach a state officer, whether judicial or executive (but not legislative). The Senate then holds a trial and decides whether to remove the official. That vote must also be effective upon a vote of two- thirds of the members present.1 The of- fense that triggers impeachment is mal- administration. “Treason, Bribery, or oth- er High crimes and misdemeanors” are the Matthew Lyon Malcolm “Mike” Mayo standards for impeachment from the U.S. Constitution, but maladministration is the sole basis for impeachment and removal in was abolished, its former impeachment au- bunal, where the solemnity and publicity Vermont.2 thority transferred to the House of Repre- of the trial will either publicly purge their sentatives. The Senate’s role conducting official characters from imputed crime, or The Law of Impeachment the trial remained intact.4 make their mal-administration known to The Supreme Court was also involved in the citizens at large, and especially to those The 1777 Vermont Constitution gave the process, at least until 1836. The Con- in whom rests commonly the election to of- impeachment powers to two bodies, the stitution required the court to advise the fice.”6 Impeachment after his term was up, Council of Censors and the General As- Governor and Council during the trial of however, was futile. sembly, and the removal power to the Gov- a state officer if the Assembly needed its In 1987, the Vermont Supreme Court ernor and Council. The Council of Censors help. After 1786, the Governor and Council found that impeachment and removal un- had the power to impeach any state offi- could award costs, in addition to removing der the Constitution would not impair its cer. The General Assembly’s impeachment the accused from office. After 1836, the ju- own role in judicial discipline, in the mat- powers were limited to county officers, in- diciary had no direct role. ter of Assistant Judge Althea Kroger.7 The cluding justices of the peace, sheriffs, and Based on how it was used, the term proceedings against Justice William Hill in county judges. In either case, if impeach- “maladministration” meant anything the 1989 again raised the issue of whether the ment was voted by a simple majority of Council of Censors or the General Assem- suspension authority of the Court interferes the body, the Governor and Council would bly thought applied, from collecting too with the legislative power of impeachment then hear the case and determine wheth- much in fees to insubordination.5 and removal, and the high court rejected er to remove the individual from his office.3 There are only a handful of reported cas- the claim. As Hill had retired by the time When the Constitution was first amend- es of the Vermont Supreme Court that dis- the Court suspended him from further ju- ed, in 1786, the Assembly’s impeachment cuss the impeachment power. One involves dicial duties, impeachment would not ac- powers were deleted, leaving the Council John Campbell, a Justice of the Peace in- complish anything.8 of Censors as the sole and exclusive body dicted for a misdemeanor in 1802 for re- In 2009, the Supreme Court found a with the power to impeach and the Gover- newing a writ of execution after his com- Windsor County Assistant Judge had vio- nor and Council to try it until 1836, when mission expired, and taking fees for it. lated the Code of Judicial Conduct by fail- the Governor and Council was abolished Campbell, after completing one year as JP ing to recuse himself from participating as and the Senate was given the power to (and not being elected for another term) a director of a nonprofit corporation in its try and decide on all impeachments. The endorsed a judgment to renew the writ and land dealings with the county court and by Council of Censors retained the authority dated it one month earlier than he signed failing to maintain the dignity and integrity to impeach officials. The 1836 amendment it, to cover himself. The Supreme Court of his office during a reelection campaign. added that impeachment “shall not extend considered whether he could be criminal- This latter charge involved writing a let- farther than to removal from office—and ly indicted for maladministration and con- ter to a local paper charging his opponent disqualification to hold or enjoying any of- cluded that the only way was by impeach- with stealing a campaign sign and accus- fice of honor, or profit, or trust, under this ment. The Court explained, “In cases of ing the opponent of “nastiness.” The judge State. But the party convicted shall, never- mal-administration there is a peculiar and was suspended from his duties both judi- theless, be liable and subject to indictment, manifest propriety in . . . bringing State cial and administrative for six months. The trial, judgment, and punishment, according criminals, as they are styled in the Consti- court rejected the claim that its jurisdic- to law.” In 1870, the Council of Censors tution, to trial, before this high national tri- tion was limited to a judicial sanction and

14 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org that impeachment was the mechanism for Impeachment in Practice Ruminations disciplinary action relating to administra- tive matters. The General Assembly’s pow- The first Vermonter to be accused of an ers were held to be supplementary to the impeachable offense was Matthew Lyon, in Court’s authority to discipline judges.9 1779 when he was representative from Ar- lington. Dr. Reuben Jones, the representa- Expulsions from the Assembly tive from Rockingham, had some beef with Lyon, and advanced an impeachment pe- The General Assembly has always had tition against him. The petition didn’t sur- the power to expel a member. At times vive, so we cannot know the accusation, this process has used the word “impeach- but the General Assembly promptly re- ment,” but this is not a true impeachment solved that Lyon was not impeached and power, but rather an outgrowth of the that it would “not act any more on the pa- power to judge the qualifications of mem- per signed Reuben Jones (called an im- bers which any formal body enjoys inher- peachment) against Mr. Lyon at present.”14 ently and that Vermont’s legislative branch This was not the last Matthew Lyon would has as a constitutional duty.10 Originally this confront impeachment, however. power to expel was qualified by prohibit- The first true impeachment in Vermont ing expulsion “a second time for the same history came in 1785. John Barrett was a reason.” Then in 1786 the Constitution was Justice of the Peace for Windsor Coun- changed to read that members may be ex- ty who in 1781 had issued writs and giv- pelled for any reason but “not for causes en judgment and execution against several known to their constituents antecedent to men, who brought their complaint to the their election,” words that remain the stan- General Assembly. The prosecutor, Ste- dard today.11 phen Row Bradley, accused Barrett of issu- In June 28, 1781, two members of the ing a judgment in one case when he knew House were “impeached.” Daniel Martin, a the parties had settled it and in another representative from Putney, had sold dis- when he knew the defendant had been counted Vermont bills of credit to another dead for three years. Barrett had “excited representative, John Abbott of Hoosick (at and encouraged many needless & vexa- that time a part of Vermont), for hard cur- tious Law suits to enhance bills of Costs to rency at one-fourth their face value. Ver- the oppression of the People.”15 His accus- mont was facing a fiscal crisis in the midst ers wanted the judgments overturned and of the war. Money was scarce, so Vermont’s their costs paid. Unlike the quick work in General Assembly had authorized the issu- the impeachment of Daniel Martin, howev- ance of bills of credit as a substitute. The er, this process dragged on. devaluation of these bills of credit repre- The General Assembly resolved to im- sented a serious assault on the integrity of peach Justice Barrett in October of 1783, the state. That two of the state’s represen- appointing Bradley to the job of prosecut- tatives were engaged in selling discount- ing him.16 Barrett continued in office after ed bills was an embarrassment. The House this time, while the trial before the Gover- voted to expel Martin and publicly repri- nor and Council was pending. The follow- mand Abbott. Martin promptly made “a ing March, the Assembly resolved that its public recantation for the crime for which actions the previous fall had “virtually sus- he was expelled, and evidenced signs of pended” Barrett.17 But Barrett had never sorrow and Repentance,” whereupon the been officially notified of the actions of the House resolved to restore him to his seat Assembly, and a committee of the General that afternoon!12 Assembly, doubting the validity of the ac- Jonathan Fasset of Pittsford was the next tions taken the previous October, encour- to be “impeached.” On February 19, 1787, aged the petitioners to find their remedy in the legislature ordered him suspended un- the courts of common law.18 til a petition was brought for the offense In October of 1784, the Assembly ap- of aiding and assisting the mob which as- pointed Samuel Knight to prosecute Bar- sembled at Rutland in November of 1786 rett. The following June the Governor to stop the County Court from sitting. After and Council held a trial. Barrett pled not hearing the evidence, the General Assem- guilty, but after considering the evidence bly ordered him suspended from his seat the Governor and Council finally suspend- in the legislature and he was expelled by ed him from his office for six months and unanimous vote. Fasset was also ordered ordered him to pay the costs of prosecu- to pay the expenses of Darius Chipman, tion, which amounted to more than ten State’s Attorney for Rutland County, who pounds.19 Barrett requested a new trial, but had prosecuted him.13 the Governor and Council concluded it had There have been other expulsions over no authority to allow one without an order the years, a failure to qualify for office, but from the legislature. The General Assem- misconduct has been handled privately bly quickly voted to allow a new hearing at and the member allowed to resign. the next session of the Assembly.20 Finally, in October of 1785, following the second www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 15 trial, the Governor and Council found John tant Judge of Rutland County, impeached Barrett guilty of maladministration and sus- for maladministration for signing an at- pended him from office for six months, tachment against Lyon without first giv- again ordering him to pay the cost of pros- ing an oath as the law directs.28 No action Ruminations ecution.21 These costs included money for came of it. The oath required the creditor prosecutors Bradley and Knight, and vari- to swear that he was in danger of losing his ous witnesses. The process had taken four debt without the attachment. It is hard not years. to see the petition as retaliatory. Nathaniel Justices served one-year terms in those Chipman had been counsel to the Coun- early years. That Barrett could be im- cil of Censors in 1785, when Lyon was im- peached and removed from office in 1785 peached, and Lemuel was his brother. for offenses committed in 1781 did not ap- William Coley was high sheriff of Ben- pear to distract the Assembly or the Gover- nington County in October of 1799 when nor and Council. he was impeached by the Council of Cen- Next up was Matthew Lyon. The same sors for taking greater fees for summoning month Barrett was removed, on October the grand and petit juries than the law al- 15, 1785 the Vermont Council of Censors lowed. The official charge was maladmin- voted to impeach Lyon for refusing to de- istration. Coley had charged $38.27, and liver the records of the Court of Confisca- explained he had to go to several of the tion to the State. Three days later he was towns more than once to find enough ju- tried by the Governor and Council and rors. Of that, $25.74 was for travel. A com- fined 500 pounds if he neglected to per- mittee of the legislature found the charges form.22 He was also reprimanded by the wholly unsupported, and urged their dis- Governor and Council for his refusal and missal. The case never made it to the Gov- ordered to pay the cost of prosecution. ernor and Council. The Censors objected Lyon asked for a new trial and the Gover- to this as unconstitutional meddling, saying nor and Council agreed, but following that in its report that the Assembly had no inde- hearing the decision was affirmed. No re- pendent authority to inquire, and that the cord from that time shows that Lyon either legislative committee did not have all the returned the records or paid the fine, but materials in front of it when it conducted Lyon was required to pay more than two its inquiry.29 pounds in costs.23 John Fasset, who had Two sheriffs were the subject of an im- served as commissioner of sequestration peachment inquiry by the Council of Cen- and sales, was also asked for the records. sors in 1799. John Chipman, sheriff of Ad- Fasset at first refused, and then, faced with dison County, and Prince B. Hall of Franklin a lawsuit from the state auditors, handed County were each accused of taking more them over.24 The records became part of fees that the law allowed. A committee the manuscript state papers and were pub- looked into the evidence and then discov- lished in 1941.25 ered that the fees had been approved by Lyon had good reason to withhold these the Supreme Court, which ended all further records, as they revealed his purchase of discussion of the conduct.30 several properties seized by Vermont from In 1806, David Leavitt, a Windham Jus- Tory landowners, during the time he was tice of the Peace, was summoned to the clerk of the Court of Confiscation in 1778 Council of Censors, then meeting in Wood- and 1780. Lyon’s biographer Aleine Austin stock. Rather than appearing, he sent a let- says the records do not show he was guilty ter pleading guilty to the accusations. The of corruption, but rather “that he was in- Council of Censors then concluded that his sensitive to the notion of conflict of interest conduct was “highly reprehensible and de- (more developed today than in his time, to serving of public censure.”31 What he did is be sure), and that he used his official po- not clear from the record. A public censure sition and inside knowledge to acquire ended with the Censors, and no formal trial some choice property for future specula- was held before the Governor and Council. tive gain.”26 Abner Osgood, a Justice of the Peace The Mayo Impeachment for Orange County, was accused of an im- peachable offense by Dr. Nathaniel Gott One hundred and seventy years later, in October of 1785. Osgood, accord- Malcolm (Mike) Mayo, Sheriff of Wash- ing to Gott, had found Osgood collected ington County, was impeached by the amounts larger than the law allowed for House, tried by the Senate and acquit- Justice courts, among other matters. Os- ted. The three charges included falsifying good was summoned to the Assembly, but documents relating to a drug raid, order- never appeared, and the petition was likely ing his deputies not to cooperate with oth- dismissed without action.27 er police agencies, and participating in bar Matthew Lyon makes another appear- fights. ance in the history of impeachment in Ver- Attorney General M. Jerome Diamond mont in 1792. On October 11, 1792, he triggered the impeachment with allega- petitioned to have Lemuel Chipman, Assis- tions of wrongdoing. The House Judiciary

16 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org Committee opened an inquiry, and on Jan- the charges, arguing that impeachment Ruminations uary 15, 1976 the House voted to give the does not apply to sheriffs, as the Constitu- committee subpoena powers. The commit- tion refers to officers of state. Rep. Meak- tee held closed door sessions to hear testi- er answered that the legislature had pur- mony from witnesses, who included police sued impeachment against county officials officers and a man who was assaulted by in the past. The Senate voted 22-4 to reject the sheriff at a Montpelier tavern. the defense, concluding that a sheriff was a During the course of the House Judicia- state officer.35 ry Committee’s work, its counsel William Earle Kelly, a former Northfield deputy Russell recommended that “maladminis- sheriff, was subpoenaed. He had left Ver- tration” be defined as actions that “invoke mont before being served and was the sub- moral turpitude and willful corruption.” He ject of an order by an Illinois judge to take advised that the committee should focus him into custody and return him to Ver- on serious charges and “problems as they mont. Kelly returned on his own for the tri- relate to the holder of the public office, not al. Kelly and his wife Paige, both deputies, just the character of the man.” had left Vermont in April after learning they Mayo was represented by Richard E. were to be subpoenaed by the defense, Davis. John Meaker served as prosecu- and Earle Kelly had enlisted in the Navy.36 tor. Their styles were notably different. A Rep. David Drew introduced the House reporter described Davis guiding “Mayo’s case against Mayo, alleging that Mayo’s ac- defense with bravura, alternately cajoling tions “strike at the very heart of our pre- witnesses with sweet smiles and browbeat- cious freedom.” Drew later resigned after ing them in a deep, grating voice.” This the Senate ruled against his proposal that “theatrical style” contrasted with Meak- one vote be taken on the three articles of er’s “quiet consistent manner,” that was impeachment. “I’m not participating in “marked by his monotone delivery.”32 these proceedings any further,” he said.37 On March 11, the House voted to im- Meaker was frustrated that evidence peach Mayo on all three counts. The first of Mayo’s statements about the incident charged him with using an unauthorized at the Thrush Tavern were not admitted person in a drug raid and then falsifying into evidence because the statement was the records to show he was a deputy at the not made by Mayo in his capacity as sher- time of the raid; ordering a deputy to fal- iff but as a private citizen. Davis was frus- sify the records of that raid, falsely alleging trated at being denied free challenges to in a report that marijuana had been seized previous testimony and court inquests. He in the raid; and in a separate incident fal- called former deputies James Jollota and sifying a statement to the Montpelier po- Earle and Paige Kelly to testify. Earle Kelly lice about the barroom fight. The second said Mayo predated commissioning papers count alleged failure to perform the func- to cover Kelly’s role in the drug raid. Da- tions of the office of sheriff and focused on vid McManis, another deputy, said some of Mayo’s order to his deputies not to cooper- the young people there had marijuana, al- ate with any other law enforcement agen- though another deputy told how Mayo had cy, make patrols, initiate criminal cases, or given him a bag and ordered it be logged issue traffic citations. The third addressed as taken at the raid. breach of duty, related to the assault at the Mayo testified at the impeachment trial. bar, “unjustly and without provocation,” He admitted that his May 28, 1975 memo abusing and threatening citizens and a po- ordering his deputies not to cooperate lice officer and hindering efforts to restore with other police agencies and to cease peace during an incident at a Stowe night routine duties was a mistake, corrected by club, and ordering a deputy to abandon his an order rescinding the direction on June post at the Waterbury bar “in retaliation 2. Other deputies testified they were un- for complaints made of the sheriff’s per- aware the order had been rescinded. Da- sonal conduct,” involving comments made vid Evans told the Senate the order was still to a woman at a bar “identified as a deaf in effect as late as November 5. Evans said mute.”33 he had been relieved of duty at that time Mayo had pled nolo contendere to a when he had aided a state trooper return- charge of simple assault in District Court ing a child involved in a child abuse matter and was fined $150.00 for the incident at to his father.38 the Thrush Tavern. By a vote of 20-8, the Senate acquitted The charges were delivered to the Sen- Mayo of the first charge, that he had falsi- ate by the House managers. In prepara- fied official records.39 tion, the Senate adopted procedures that Meaker, in his final arguments on the would be followed.34 The hearing on im- second charge, asked Senators to answer peachment was then set for the end of the “how low we should let [the standard for session. Mayo was served with a subpoe- Vermont law enforcement] be dragged be- na by the Sergeant-at-Arms and the Senate fore we finally say it was maladministra- began the impeachment trial on May 17, tion.” For the defense, Davis called Mayo’s 1976. Mayo’s attorneys moved to dismiss actions “an error in judgment,” question- www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 17 ing how the second count was justified as beth Gretkowski. Hearings were held, but cords, and orders not to cooperate with maladministration when there was no ev- the House took no formal action. The Ver- other law enforcement agencies were trig- idence that Mayo actually refused to aid mont Supreme Court heard the accusa- gers for impeachment, but not for remov- other departments. No duty of his office tions, and in 1997 concluded that she had al. From these facts, the next impeachment Ruminations had been breached, said Davis. The Senate violated the Code of Judicial Conduct by will need to find its own way through the voted 20 to 8 to dismiss the second charge her false statement while testifying under labyrinth, as happened in 1976. on his failure to perform the functions of oath at hearings before the Vermont As- ______his office.40 sociation of County Judges and suspend- Paul S. Gillies, Esq., is a partner in the Former Superior Judge Donald J. ed her from acting as a judge for one year. Montpelier firm of Tarrant, Gillies & Rich- O’Brien led the prosecution on the third Kroger resigned at the end of that year. ardson and is a regular contributor to the charge, relating to the barroom incidents The following year the Supreme Court Vermont Bar Journal. A collection of his and charged as a breach of duty as a peace publicly reprimanded Kroger for “conduct columns has been published under the ti- officer. O’Brien challenged the idea that which undermined public confidence in the tle of Uncommon Law, Ancient Roads, and Mayo was able to act as a private citizen integrity of the judiciary and brought the Other Ruminations on Vermont Legal His- while serving as sheriff. Co-counsel Oreste office of assistant judge into disrespect.”45 tory by the Vermont Historical Society. Paul Valsangiacomo, Jr. for the defense claimed is also the author of The Law of the Hills: A Mayo was not acting in his official capacity Final Tally Judicial History of Vermont (© 2019, Ver- when he slugged a man who he believed mont Historical Society). was critical of his department, and warned The General Assembly impeached John ______that a vote to convict would be a “blot, a Barett in 1785, and the Governor and 1 Vermont Constitution, Ch. 2, Secs. 57 and 58. 2 cloud” over Mayo and his family “for gen- Council found him guilty of maladminis- U.S. Constitution, Art. I, Secs. 2, 3 and Art. II, Secs. 2 and 4. erations to come.” O’Brien responded that tration and removed him. The Council of 3 Vermont Constitution (1777), Ch. 2, Sec. XX. the case wasn’t about the effect of im- Censors impeached Matthew Lyon in 1785, 4 Vermont Constitution (1786), Ch. 2, Sec. XXI; peachment on Mayo, but “whether there and he too was found guilty by the Gov- Articles of Amendment (1836), Arts. 7 and 8; has been a lessening of respect for law en- ernor and Council, but not removed from Articles of Amendment (1870), Art. 25, Sec. 3. See P. Gillies & D. Gregory Sanford, Records of forcement.” The Senate acquitted Mayo of office, his sanction being a fine and an -or the Council of Censors of the State of Vermont the third count on June 2, 1976. The vote der to return official records. The Censors (Montpelier, Vt.: Secretary of State, 1991), 13, was 18 to 12 in favor of conviction, but less impeached William Coley in 1799, but the 52, 368, 761. than the necessary two-thirds required by General Assembly, acting beyond its au- 5 Vermont’s original Bill of Rights (1777) includ- the Constitution.41 thority, found the charges invalid, and no ed Article VII: “That those who are employed in the legislative and executive business of the Mayo served out his term as sheriff and trial was held before the Governor and State, may be restrained from oppression, the was defeated in a bid for a second four Council. The House of Representatives vot- people have a right, at such periods as they may years in 1978. He resigned shortly after the ed to impeach Malcolm Mayo in 1976, but think proper, to reduce their public officers to election to take a patrolman’s job with the the Senate acquitted him. Neither the Null a private station, and to supply the vacancies, 42 by certain and regular elections.” The language Gillette, Wyoming police department. nor the Kroger matters reached the im- came straight from the 1776 Pennsylvania Con- Mayo later took his claim for attorney’s peachment stage. Final tally: four officials stitution. It is a revolutionary idea. In 1786, the fees to the courts, but was not allowed to impeached, one removed, one sanctioned. line was qualified by explaining that the right to collect from the state. The Supreme Court The impeachment and removal of an reduce officers to a private station would be ex- explained that the statute allowing state elective official is not a judicial act. It is not ercised by “their legal representatives.” This was in reaction to a growing restlessness among the and county officers their legal fees did not a criminal prosecution. It is a political pro- inhabitants of Vermont at the time the Council extend to an impeachment proceeding as cess. The Senate acts like judges, not as a of Censors met to propose amendments to the it was not an “action or suit.”43 jury. The result is not a written opinion, but Constitution, manifested by the appearance of a report of how Senators voted. There is no angry mobs at the opening of certain courts and even the legislature when it met in Rutland in Leroy Null and Althea Kroger appeal to the courts. 1786. The whole section was deleted in 1793, Impeachment should be used for the although the more specific language on how im- Leroy Null was State’s Attorney of Or- worst behavior of a public figure, but peachments were to be conducted remained in leans County in 1980 when the House was Vermont’s most harmful public offend- the Constitution. Records of the Council of Cen- requested to impeach him. Null had been ers walked. Henry M. Bates was not im- sors, 6, 86, 138. 6 State v. Campbell, 2 Tyl. 177, 181 (1802). indicted by a grand jury for perjury, de- peached. As State Treasurer he was re- 7 In re Kroger, 148 Vt. 632, 632-633, 533 A.2d stroying official records, and urging anoth- sponsible for the defalcation of $48,428.76 1194 (1987). er person to commit perjury, actions tak- of state money, but the crime was only dis- 8 In re Hill, 152 Vt. 576, 578, 569 A.2d 446 en when he was a deputy sheriff. Distract- covered after he left office and died.46 Hor- (1989). 9 In re Boardman, 186 Vt. 176, 192-193, 979 ed by a pending supplemental appropria- ace Graham wasn’t impeached either. He A.2d 1010, 1021 (2009). tion bill, the resolution petition was tabled embezzled thousands of dollars of state 10 Vermont Constitution, Chapter II, Secs. 14, and in February ordered to be withdrawn. funds while he was Auditor of Accounts 19. In April a new resolution was introduced, (1902-1917), but he was indicted only af- 11 Records of the Council of Censors, 9, 90. Ver- and adopted on April 7, but five days later ter he left the Governor’s office in 1920, mont Constitution, Chapter I, Section 14. 12 Walter H. Crockett, ed., Journals and Pro- Null died, and no further action was taken found guilty in criminal court, sentenced ceedings of the General Assembly of the State on the matter.44 to a term in state prison, and pardoned by of Vermont, 1778-1781, State Papers of Ver- In 1996, the dispute between Assis- the succeeding governor.47 What they did mont III:II (Bellows Falls, Vt.: P.H. Gobie Press, tant Judges in Chittenden County spilled was unsanctioned maladministration. Ly- Inc., 1924), 268-269. 13 E.P. Walton, Records of the Governor and over into public with the Judicial Conduct on’s withholding records, Barrett’s barra- Council of the State of Vermont (Montpelier, Vt.: Board, which requested the impeachment try and extra-jurisdictional judgments as a Steam Press of J. & J.M. Poland, 1875), III: 369- of Althea Kroger. The House resolved to in- Justice of the Peace, are the sole examples 370; Walter H. Crockett, ed., Journals and Pro- vestigate the allegation that she had per- of precedent for maladministration in the ceedings of the General Assembly of the State jured herself and made false allegations of state’s history. Colley’s $34.27 in improp- of Vermont 1784-1787, State Papers of Vermont III:III (Bellows Falls, Vt.: The Wyndham Press, wrongdoing against Assistant Judge Eliza- er fees and Mayo’s bar fights, falsified re-

18 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org 1928), 271-272. Burlington Free Press, 18 May 1976, 1, 3. Ruminations 14 Journals and Proceedings of the General As- 37 John W. Reid, “Mayo Prosecutor Raps Vote, sembly 1778-1791, 83. Quits,” Burlington Free Press, 25 May 1976, 1, 2. 15 II Records of the Governor and Council 69. 38 Katherine Gregg, “Mayo Says May 28 Memo 16 Journals and Proceedings of the General As- Was Mistake,” Burlington Free Press, 28 May sembly 1781-1783, III State Papers of Vermont 1976, 1, 6; John W. Reid, “Mayo Goes on Wit- (II), 199. ness Stand To Answer Accusers’ Charges,” Burl- 17 Journals and Proceedings of the General As- ington Free Press, 26 May 1976, 1, 13; Journal of sembly 1784-1787, 32. the Senate of the State of Vermont, Adjourned 18 Ibid., 91. Session, 1976 (Burlington, Vt.: Queen City Print- 19 II Records of the Governor and Council 71. ers, 1976), 244-246, 352-356, 359, 420-429, 641; 20 Journals and Proceedings of the General As- Journal of the House of Representatives of the sembly 1784-1787, 148. State of Vermont, Adjourned Session, 1976 (Bur- 21 II Records of the Governor and Council 90. lington, Vt.: Queen City Printers, 1977), 407, 22 II Records of the Governor and Council 82-83; 535, 557, 833; Transcripts of the House Judiciary Records of the Council of Censors, 30. Committee and the Vermont Senate, in the mat- 23 II Records of the Governor and Council, 93. ter of the Malcolm (Mike) Mayo impeachment, 24 Records of the Council of Censors, 62. State Archives. 25 Mary Greene Nye, ed., Sequestration, Con- 39 Jennifer Small, “Mayo Acquitted on One Ar- fiscation and Sale of Estates, VI State Papers ticle of Impeachment,” Brattleboro Reformer, 27 of Vermont (Montpelier, Vt.: Secretary of State, May 1976, 1. 1941). 40 Katherine Gregg, “Mayo Acquitted on 2 nd 26 Aleine Austin, Matthew Lyon: “New Man” of Charge,” Burlington Free Press, 29 May 1976, 1, the Democratic Revolution, 1749-1822 (Univer- 3. sity Park: Pennsylvania State University Press, 41 “Mayo Is Cleared By Vt. Senate,” Brattleboro 1981), 23-24. Reformer, 2 June 1976, 1, 8. 27 Edward A. Hoyt, ed., General Petitions 1778- 42 Elizabeth Slater, “Sheriff Mayo, Defeated For 1787, VIII State Papers of Vermont (Montpelier, Re-election, Quits,” Rutland Daily Herald, 7 De- Vt.: Secretary of State, 150-52, 169; Crockett III cember 1978, 4. John Meaker ran for Vermont (III), 206. Attorney General in 1976, and was defeated by 28 Records of the Council of Censors, 105-6. M. Jerome Diamond in the General Election. 29 Ibid., 159-69. The Council was also upset Governor Richard Snelling appointed Meaker about the court martial of David Whitney in to the Superior Court in 1980. Meaker retired 1799. Whitney was Major General of the third in 1999.42 Richard Davis, recognized as one of division of the militia of Vermont, who had been the state’s greatest advocates, died in 1993. punished by court martial for unmilitary conduct. Rusty Valsangiacomo continues to practice law His is the only case even remotely involving sexu- in Barre. al misconduct. Whitney had debauched the wife 43 Mayo v. State, 138 Vt. 419, 515 A.2d 1061 of his friend, and publicly assaulted his own wife. (1980). He had hit an elderly Revolutionary War veteran 44 Chris Chinlund and Colin Nickerson, “Null and refused to make restitution. Curiously, Whit- Quits Post,” Rutland Daily News, 6 April 1980, ney was also found to have “allowed himself to 1, 8; Candace Page, “Leroy Null Dies,” Brattle- be led several miles through the streets of Ad- boro Reformer, 14 April 1980, 1; https://www. dison while tied to a pole between two horses, sec.state.vt.us/media/58987/Null.pdf. with a rope around his neck.” This last act hardly 45 In re Kroger, 167 Vt. 1, 702 A.2d 64 (1997); In seems to include any voluntariness on his part, re Kroger, 168 Vt. 602, 602-603, 718 A.2d 922 but it all added up to unmilitary conduct. Whit- (1998). ney had been count-martialed in 1799 for these 46 Frederick A. Wood, The Finances of Vermont crimes. These acts, in the mind of the Council (New York: Columbia University Press, 1913), 71; of Censors, were nonmilitary offenses and not “An act relating to the sureties of the last state “crimes or misdemeanors.” In its opinion the treasurer,” The Acts and Resolves passed by the governor, as commander in chief, and the mem- General Assembly of the State of Vermont, at bers of the court martial, had violated the Ver- the October Session, 1860 (Montpelier, Vt.: E.P. mont Constitution and so themselves were de- Walton, 1860), 12-13; “An act in addition to an serving of censure. Ibid., 168-69. act entitled ‘an act relating to the sureties of the 30 Ibid., 173. John Chipman was not related to late state treasurer,” ibid., 191. Nathaniel or Lemuel. 47 “Sentenced, Then Pardoned,” Middlebury 31 Ibid., 185. Record, 11 November 1920, 3. 32 John W. Reid, “Style of Impeachment Trial Lawyers Differs Greatly,” Rutland Daily Herald, 24 May 1976, 1. 33 Journal of the Senate of the State of Vermont, Adjourned Session 1976, Adjourned Session, 1976, March 11, 1976 (Burlington, Vt.: Queen City Printers, 1976), 245-246; Stephen C. Terry, “House Impeachment Probe of Mayo Outlined,” Rutland Herald, 1 February 1976, 1, 8; “Mayo Case Proceedings Continued,” Rutland Her- ald, 12 February 1976, 14; Rod Clarke, “Mayo Impeachment vote expected today in House,” Bennington Banner, 10 March 1976, 18; Fred- eric Bayles, “Mayo Impeachment Report Lists Events,” Burlington Free Press, 14 March 1976, 1, 2. 34 Journal of the Senate, March 25, 1976, 420- 429. 35 Frederic Bayles, “Impeachment Witness Tes- tifies,” Burlington Free Press, 19 May 1976, 1, 6; John W. Reid, “Impeachment Procedures Cut New Legislative Paths,” Burlington Free Press, 19 May 1976, 1, 6. 36 Fredric Bayles, “Mayo’s Senate Trial Opens,” www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 19 WHAT’S NEW COVID-19 Updates

The coronavirus pandemic began to im- regular conference calls to discuss how AO protecting individual rights and maintain- pact Vermont during the final phase of this 49 is impacting our clients, members and ing the rule of law that is the backbone of quarter’s issue of the Vermont Bar Jour- other issues related to COVID-19. In con- our constitutional democracy. The United nal. While we thought some semblance of junction with those calls, we’ve invited our States and Vermont Constitutions protect normalcy in issuing our regular publication VBA section chairs and the county bar pres- individual rights to life, liberty, and due pro- would be welcome, we would be remiss idents to participate in regular joint confer- cess. “[T]he judiciary is clearly discernible without adding a late-entry section on the ence calls to assist us in a coordinated and as the primary means through which these virus. Below are some excerpts of orders, efficient line of communication from all of rights may be enforced.” Davis v. Passman, guidance and communications relevant to you, through us to the Court. It is my hope 442 U.S. 228,241 (1979). As James Madi- our practices that we’ve shared at the on- that we continue the conference calls until son said, independent courts “will consider set of the crisis. Please continue to check the COVID-19 event ceases to impact our themselves in a peculiar manner the guard- our website and the VBA Connect commu- VBA community. ians of those rights; they will be an impen- nities for the latest information. It’s important that we hear from you re- etrable bulwark against every assumption Between the creation of a dedicated garding any issues impacting our members of power in the Legislative or Executive; COVID-19 resource guide on our website, or their practices related to AO 49 and they will be naturally led to resist every en- weekly conference calls with Chief Justice COVID-19 responses generally. During our croachment upon rights expressly stipulat- Reiber, Judge Grearson and Pat Gabel, calls with the VBA section chairs and coun- ed for in the Constitution by the declara- weekly conference calls with VBA Section ty bar presidents we will discuss how best tion of rights” Id. at 241-42 (citing 1 Annals and Division Chairs and County Bar Presi- to gather that information from you. of Cong. 439 (1789)). dents, the efforts of our newly-formed CO- We are also in the process of forming an In addition, the work of Vermont’s courts VID-19 Committee, and the outstanding ad hoc VBA COVID-19 Committee that will has a profound impact on the daily lives of contributions shared by members through be tasked with gathering relevant informa- Vermonters. Courts are charged with de- VBA Connect, we’re doing our best to keep tion and resources to best assist Vermont ciding critical questions related to the pro- you informed of the ever-changing legal lawyers and the Vermont community as tection of children and the rights of their landscape in these unique times. We are we navigate the challenges facing us. The parents. The criminal justice system cannot also working daily with the Legislature to Committee will also work closely with or- fully function without the active engage- advance emergency legislation designed ganizers of a state-wide disaster relief pro- ment of courts. Rather than resorting to to help you serve your clients while prac- gram that’s being set up to connect Ver- destructive self-help strategies, individuals ticing social distancing. We remain very mont lawyers with Vermonters in need of and organizations rely on courts to resolve grateful for all that you in the Vermont legal legal assistance for issues related to CO- all manner of disputes by applying estab- community are doing to continue to “serve VID-19. lished legal principles. Families turn to the public and the profession” in the face Also, I am exploring ways in which the courts to address vital issues, many involv- of unprecedented challenges. Please don’t VBA might support our more vulnerable ing urgent conflicts. And courts adjudicate hesitate to contact us whenever we can be members through this COVID-19 pandem- civil petitions to protect individuals’ safety. of help to you, and be well! ic. I will update you as this unfolds. Moreover, open trials are important to Our VBA staff is working diligently to the administration of justice. As the U.S. From VBA President’s 3/19/20 Message: meet your needs as we navigate these un- Supreme Court has explained, “The val- charted COVID-19 waters. We are, for ex- ue of openness lies in the fact that people Dear Members of the Vermont Bar: ample, exploring ways to assist our mem- not actually attending trials can have confi- We at the VBA don’t want to inundate bers in meeting licensure and CLE require- dence that standards of fairness are being you with emails, but we also don’t want ments given the likelihood that live CLEs observed; the sure knowledge that anyone you to miss the important resources that may not be available in the upcoming is free to attend gives assurance that estab- are available to you. We recommend that months. We will be offering a variety of on- lished procedures are being followed and you check the VBA website1 regularly. It’s line and webinar CLE options as a result. that deviations will become known. Open- being updated daily with important infor- I’d like to publicly express my gratitude ness thus enhances both the basic fairness mation relevant to your practices concern- to Teri Corsones and our talented VBA staff of the criminal trial and the appearance of ing the COVID-19 crisis. The VBA Connect for their commitment to the needs of our fairness so essential to public confidence in communities are also continually posting membership. the system.” Press-Enter. Co. v. Super. Ct. helpful information particular to the sec- Stay well, of Cal., Riverside Cty., 464 U.S. 501, 508 tions, with property law and family law be- Elizabeth Novotny, President (1984). For these reasons, we have recog- ing most active at this time; members can Vermont Bar Association nized that the public has a “constitutional join however many sections they wish at and common law right of access to court no charge. Take advantage also of free up- From the Vermont Supreme Court’s records and proceedings” State v. Tall- coming webinars on virtual practice and Fourth Amendment (3/25/20) man, 148 Vt. 465,472, 537 A.2d 422,427 wellness. to A.O. 49: (1987), and public judicial proceedings I’m also writing to otherwise share a sam- are the rule, and closed ones the excep- ple of steps that the VBA is taking to serve Explanatory Note tion. Herald Ass’n. Inc. v. Ellison, 138 Vt. the public and the profession. In response The current COVID-19 pandemic forc- 529,533,419 A.2d 323,326 (1980). to the Supreme Court’s Administrative es the Judiciary to balance critical and to Nevertheless, the current public-health Order 49 (AO 49) Declaration of Judicial some extent competing objectives. Im- crisis arising from COVID-19, and the re- Emergency, the VBA asked the Court for portantly, the courts play a critical role in sulting declaration of a judicial emergen-

20 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org cy, reinforced by the Governor’s declara- a narrow exception to the general suspen- What’s New tion of a State of Emergency, calls for ex- sion of nonemergency hearings for non- treme measures to mitigate the impact of evidentiary, nonemergency hearings that the pandemic. The Governor, based on could be conducted entirely remotely. This evidence-based public-health concerns, exception was limited by staff availability, has declared a State of Emergency in Ex- and the amendment authorized the Court ecutive Order O 1-20, and has augment- Administrator to make real time determi- ed the restrictions in that Executive Order nations as to whether and to what extent to with a series of addenda imposing increas- schedule or conduct such hearings. ingly restrictive limitations on public gath- By amendment on March 20, the Court erings and activities. Through our own Ad- augmented its rule authorizing court fil- ministrative Order, as amended from time ings by email to allow electronic signatures to time, the Vermont Supreme Court has in lieu of “wet” signatures on such docu- declared a judicial emergency and has im- ments. It suspended the in-person partici- plemented increasingly more expansive pation requirement with respect to court- changes with respect to matters within our ordered mediation. And it limited the times authority in an effort to meet the Judicia- and locations that Judiciary employees can ry’s most urgent constitutional obligations conduct Judiciary business. while respecting the recommendations of By amendment on March 24, the Court public-health officials, mitigating risks to extended the duration of the restrictions the dedicated public servants who work in on access to courthouses to be cotermi- the judiciary, and responding to the staff- nous with the rest of the Administrative Or- ing challenges arising from the pandemic. der and made some technical corrections This ongoing process of responding to to that provision. In addition, the Court is- the evolving public-health crisis, balancing sued a host of general directives concern- competing concerns, and adjusting court ing committees, boards, and commissions rules and operations will continue until established or governed by the Supreme this crisis runs its course. Some changes in Court. These measures included suspend- court operations will require rule changes ing in-person committee meetings; sus- or amendments to this Administrative Or- pending most adjudicative hearings by der. Some operational changes, such as im- boards except those necessary to protect plementation of remote work for many Ju- the public; and authorizing email filings diciary staff, fall within existing authority of with these committees. The Court also au- the Court Administrator and do not require thorized remote administration of the oath amendments to this Administrative Order. of admission to the Bar, and waived certain The Court’s initial order, on March 16, continuing legal education requirements 2020, postponed superior court hearings for the license renewal period ending June in all but the most urgent cases-those most 30, 2020. Finally, in recognition of the like- profoundly impacting individuals’ person- lihood that public-health demands and re- al liberty, safety, and family attachments. duced staff availability may require the Ju- In those cases, the impact of inaction by diciary to find creative ways to address the the courts would be particularly substan- most urgent cases, the Court invoked its tial and enduring. In addition, in those cas- statutory authority to make rules concern- es, the Court sought to maximize the use ing venue to authorize the Chief Superior of remote audio and video to minimize the Judge, in consultation with the Court Ad- number of individuals congregating for a ministrator, to depart from the ordinary hearing. In addition, the Court suspended rules of venue in certain circumstances. all judicial bureau hearings as well as rules By amendment on March 25, the Court regarding court filings to allow individu- has adopted this Explanatory Note. The als to use email for most court filings. The Court has further restricted public access to Court also suspended strict enforcement those court proceedings that are continu- of timelines related to public requests ing pursuant to this Administrative Order. for court records, while requiring reason- With narrow exceptions, only pai1icipants able efforts under the circumstances in re- in those proceedings will be admitted to sponse to public records requests. Finally, Judiciary courthouses. The Court has tak- the Court imposed restrictions on access to en this extreme step in recognition of the court buildings to exclude anyone at high Governor’s March 24 Addendum 6 to Exec- risk of infection pursuant to Department of utive Order No. 01-20, which called for Ver- Health guidelines, as well as anyone seek- monters to stay at home or in their place ing to enter the courthouse for any pur- of residence, leaving only for essential rea- pose other than participating in or attend- sons. The Court seeks to mitigate the Con- ing a public proceeding. stitutional concerns raised by an order tem- The March 18 amendment assigned the porarily excluding the general public from Supreme Court discretion to waive oral ar- court proceedings by including an excep- gument in its own proceedings, or to con- tion allowing registered members of the duct those arguments by remote audio or media to attend court proceedings that are video means. The amendment carved out not otherwise confidential by law. Because www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 2 1 of the administrative challenges of oper- from one person to another. ing elections and Vermont’s open meeting ating courts under current circumstances, • No more than 2 people shall occupy law, which can be found on the Secretary of the March 25 amendment provides that no one vehicle when conducting work. State’s website. new applications for one-time media certi- What’s New What’s fication will be entertained while this order The ACCD guidance issued previously Real Estate is in effect. The amendment further urges for legal services in different sectors (Finan- all individuals admitted to a courthouse to cial, Legal and Professional Services; Mu- All professional services should be pro- observe social distancing. nicipalities; and Real Estate have also been vided in a manner calculated to minimize updated in light of the April 17 guidance. in-person contact. Any activity that can be From Reports on ACCD Guidance Each now provides: conducted remotely, online, by phone, or distributed by VBA Executive Director: email, should be. The sale of real estate Financial, Legal and shall only occur within the confines of Sec- Updated ACCD Guidance as of April 17, Professional Services tion 1.3 of the guidance issued on April 2020: 17th concerning low or no contact profes- Attorneys are included in the newest Financial, Legal and Professional Servic- sional services: April 17 guidance2 from the Agency of es businesses must suspend in-person op- • Services operating with a single work- Commerce and Community Development erations under the Governor’s Executive er (such as appraisers, realtors, munic- (ACCD) issued on Friday, April 17, effective Order unless specifically exempted or if ipal clerks, attorneys, property man- April 20, 2020. The guidance differs from they can comply with the April 17th guid- agers, pet care operators, and others) guidance in the past inasmuch as it allows ance. Businesses in this industry that can- may operate if they can comply with in-person contact between a single attor- not transition functions to remote opera- the mandatory health and safety re- ney and a single client at a time provided tions shall suspend those functions unless quirements listed above, with no more the CDC and VT Dep’t of Health safety re- doing so would do harm to their client, or than 2 persons (service provider and quirements are met. Attorneys should con- they can limit contact to a single individu- client) present at one time. tinue to use their best judgment to deter- al. Examples of allowable in-person activi- mine what in-person activities are other- ties include meeting with a low-income cli- Real estate services, whether by real es- wise allowed under the various guidelines. ent without access to internet to help them tate firms, brokerages, attorneys or individ- The new guidance provides complete their tax return to ensure a time- uals, must conduct as much work as possi- in part: ly refund (phone preferred if possible); an ble remotely and change the way they have attorney meeting or representing a client traditionally done business. However, the 1.3 Low or no contact professional ser- facing imminent personal harm and no re- April 17th guidance deems real estate and vices mote option was available; or a profession- associated services (such as title searches, Services operating with a single work- al service provider working with a hospital, appraisals, and home inspections), as low- er (such as appraisers, realtors, municipal first response group, or business identified or no-contact professional services and al- clerks, attorneys, property managers, pet in the Executive Order. Those supporting lows them to resume limited operations. care operators, and others) may operate if a business or individual in recovery from Professionals must limit interactions to no they can comply with the mandatory health COVID-19 impacts may also continue lim- more than 2 people (the professional and and safety requirements . . . , with no more ited in-person services, including necessary a client). Real estate open houses shall not than 2 persons (service provider and client) banking, legal and professional services occur, but scheduled property showings present at one time. The mandatory VT surrounding access to the Small Business where no more than 2 people are present Department of Health and CDC safety re- Administration’s recovery programs. may occur. Title searches should be con- quirements include: ducted by appointment. Appraisers should • Employees shall not report to, or be al- Municipalities use drive by appraisals as an alternative to lowed to remain at, work or job site if entering a home if possible. sick or symptomatic (with fever, cough, Municipalities may continue in-person ______and/or shortness of breath). operations under the Governor’s Execu- 1 https://www.vtbar.org/ 2 • All employees must observe strict so- tive Order3 under certain circumstances . https://accd.vermont.gov/news/update-new- work-safe-additions-stay-home-stay-safe-order cial distancing of 6 feet while on the . . . 3 https://governor.vermont.gov/content/adden- job. Other business-related activities that are dum-6-executive-order-01-20 • Employees must wear non-medical not providing services or functions deemed cloth face coverings (bandana, scarf, critical public health and safety or econom- or non-medical mask, etc.) over their ic and national security are directed to ei- nose and mouth when in the presence ther suspend in- person operations or com- of others. ply with section 1.3 of the Agency’s April • Employees must have easy and fre- 17th guidance concerning low- or no-con- quent access to soap and water or tact professional services. Services such as hand sanitizer during duration of work, land records and title searches; marriage li- and handwashing or hand sanitiza- cense applications (see separate guidance tion should be required before enter- on marriages); birth or death certificate ing, and leaving, job sites. All com- searches; library lending are not consid- mon spaces and equipment, including ered critical to public health and safety or bathrooms, frequently touched surfac- economic and national security and must es and doors, tools and equipment, only be done in accordance with the April and vehicles must be cleaned and dis- 17th guidance. The Vermont Secretary of infected at the beginning, middle and State’s Office has provided guidance to end of each shift and prior to transfer local officials and municipal staff regard-

22 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org

by Mike Kennedy, Bar Counsel WHAT’S NEW Professional Responsibility and Coronavirus

As I mentioned this morning, the Rules In my opinion, when it comes to assess- necessary protective steps” or “to make of Professional Conduct are rules of rea- ing reasonableness, context matters. Con- express considered judgments about the son. Here are some thoughts on practic- duct that might have violated the rules last matter.” ing reasonably during a public health crisis. summer, might not now. While lawyers can- In my view, and at the risk of being pro- not abandon or ignore clients, I’d argue moted to Captain Obvious*, it’s best that Competence & Communication that they can keep the bigger picture in the client makes the decisions that the rules mind when prioritizing their days. envision the client making. For now, some • Current Events lawyers might have clients from whom it To me, competence includes under- What if you become unavailable? makes sense to seek advance direction, standing the effect that current events especially in matters with critical decision- have on the representation. I have not shown any symptoms. Still, points imminent. For instance, on March 16, the Su- who knows what the future holds? So, to- *or would it be a demotion? I’ve always preme Court adopted Administrative day, I recommended that the Profession- wondered which way the chain-of-com- Order 9. It’s an emergency order that al Responsibility Board plan for my unex- mand flows on obviousness. addresses judicial operations and it has pected unavailability. Develop a roster of been amended [four] times.1 lawyers able to do my job if I can’t. In my Client Confidences and Yesterday the Governor issued mind, I thought of it as my “Amii Stewart Working Remotely the “Stay Home/Stay Safe” order.2 It’s Recommendation.” Because babe, as I was the sixth addendum to an Executive drafting it, I guaran[]tee you that I knock- I’m not sure what number immediate- Order that issued on March 13.… knock-knocked on wood!3 In short, none of ly precedes “infinity.” Whatever it is, it’s Competence includes understanding us is immune. the number of times that I’ve blogged or how the Judicial and Executive orders said that a lawyer has a duty to take reason- apply to you and your clients. It also in- Comment [5] to Rule 1.3 suggests that able precautions to safeguard client infor- cludes staying abreast of new orders as diligent representation includes having a mation, including reasonable precautions they’re issued. Your duty to communi- plan to protect clients’ interests if a lawyer to prevent that inadvertent disclosure of or cate with clients likely includes explain- is incapacitated. This is particularly impor- unauthorized access to client information. ing to them how the orders will impact tant for sole practitioners. Most of you are working from home. their matters. For now, and given the duties of compe- Do you have a dedicated workspace away tence, diligence and communication: from curious ears or bored and prying • Emergency Advice & Assistance • Who will contact clients, courts, and eyes? Are you working on a device that’s Competent representation includes opposing counsel if you are incapaci- connected to others in your home? Are you having the knowledge and skill required tated? on public Wifi? Are you – gasp! – chipping for the representation. However, here’s • Who will deliver files, return unearned in with your neighbor to share the same Comment [3] to the rule on competence: funds, check your calendar? Wifi? Should you set up a VPN? “In an emergency a lawyer may give • Who will check email, voice mail, the Important considerations. emergency advice and assistance in U.S. mail? a matter in which the lawyer does • Who will handle hearings or events Trust Accounting not have the skill ordinarily required that have not been suspended or post- [and] where referral to or consulta- poned? Got this question from 3 different firms: tion or association with another law- My post on succession planning is here.4 no, Vermont’s rules do not prohibit an elec- yer would be impractical. Even in My post on disaster planning is here.5 tronic signature on a trust account check. an emergency, however, assistance KEY! If you have a succession plan, make should be limited to that reasonably sure someone knows where it is and who to Civility & Cooperation necessary in the circumstances, for contact when it’s triggered. ill-considered action under emer- 99.99% of you rock. I heard one story, gency conditions can jeopardize the Your clients aren’t immune either. Rule however, that saddened & maddened me. client’s interest.” 1.2(a) requires a lawyer to abide by a cli- I urge all lawyers to be accommodating ent’s decisions concerning the objectives when considering requests for accommo- Diligence & Communication of a representation. What if a client cannot dations that are related to COVID-19. Re- communicate their decisions to you? scheduling, postponing, extending a dead- Rule 1.3 requires lawyers to act “with rea- Well, Rule 1.14 applies whenever a cli- line, you name it. sonable diligence and promptness” on ent’s capacity to make adequately consid- On that note, here’s an uplifting sto- behalf of clients. Rule 1.4 requires lawyers ered decisions about the representation is ry. Judge Amy Totenberg is a United States to keep clients reasonably updated as to diminished, no matter the reason. Initially, District Judge in Georgia. Last week, the status of their matters, to provide clients the duty is to maintain as normal a client- Judge Totenberg issued an order related with enough information to make rea- lawyer relationship as possible. At some to court operations during the crisis. The sonably informed decisions about their point, doing so is no longer possible. Thus, order included: matters, and to respond to clients’ reason- the rule specifies situations in which a law- • “Be kind to one another in this most able requests for information. yer will be authorized “to take reasonably stressful of times. Remember to main-

24 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org tain your perspective about legal dis- dress every question I received this week, wordpress.com/2020/03/25/professional- What’s New putes, given the larger life challenges several of which related to duties and rules responsibilty-coronavirus/ now besetting our communities and not discussed here. ______1 world. Good luck to one and all.” Still, I’ll end as I began: the rules are Mike’s original blog was published when there were three amendments and the blog linked to rules of reason. In my opinion, no matter each amendment. See the VBA’s website or the […] the duty or rule you’re analyzing, there is Judiciary website for all of the Orders. nothing unreasonable about acting in such 2 https://governor.vermont.gov/content/ad- Conclusion a way as to minimize the risk of spreading dendum-6-executive-order-01-20 3 https://youtu.be/i071rR_W6MM or acquiring a deadly virus. 4 https://vtbarcounsel.wordpress.com/2017/ I know you are all doing your best. I am Peace. 11/02/got-plans/ too. I’m not trying to scare you; I’m try- In the meantime, keep on knockin’. 5 https://vtbarcounsel.wordpress.com/2018/ ing to lend guidance by sharing some of ______09/19/is-your-firm-prepared-for-a-disaster/ the considerations to keep in mind as you Republished with permission from Mi- make decisions. Please continue to contact chael Kennedy’s Blog, Ethical Grounds, me with specific questions. This post was The Unofficial Blog of Vermont’s Bar Coun- general, for a broad audience. I didn’t ad- sel by Wordpress. https://vtbarcounsel.

WANTED: LEGAL FICTION Fancy yourself a fiction writer? The next Grisham? The Vermont Bar Journal is not just for scholarly legal dissertations! Call it a fiction contest or an active solicitation for your works of fiction, either way, if we love it, we may print it! Submit your brief works of legal fiction (6,000 words or less) to [email protected]. Our next deadline is June 1, 2020.

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 2 5 by Samara D. Anderson, Esq. BE WELL Time for Holistic Spring Cleaning

“If you get the inside right, the outside will fall into place.” ~Eckhart Tolle~

Now is the perfect month to implement spring cleaning, but with a holistic twist. In- stead of merely focusing on cleaning (and sanitizing) your external environment and living space, expand into your inner space or more specifically, your mind. This is an im- portant shift because I have found that my inner landscape is mirrored externally as my mind creates my outer perception or my re- ality. But, don’t take my word for it. Try it! Pick a habit or thought pattern that doesn’t serve you, let it go and see what changes externally.

“When you correlate the changes you’ve made inside of you with the effect you bring you down. Are there negative loops Spring Mantra Practice produced outside of you. You are spinning in your mind? Worrying, orga- going to pay attention to what you nizing, overthinking, replaying, etc. What A mantra is a word or phrase that is re- did and you’re going to do it again.” can you change about your thoughts right peated often or that expresses someone’s ~ Dr. Joe Dispenza ~ now? Developing the self-awareness to basic beliefs. I think of mantras as small af- even know you are having thoughts and firmations that are repeated inside your in- Here are some ways you can let go: then to observe them are HUGE STEPS, terior space that are positive, uplifting and so be easy on yourself. Practice patience filled with self-love to motivate you even 1. Things – As Marie Kondo says: “The because if you try to rush things, you of- when everything feels like it is falling apart. space in which we live should be for the ten end up with something of lesser value. And even if I am not truly “feeling” the man- person we are becoming now, not for the tra, I just keep repeating it and eventually person we were in the past.” So, look As I teach in my mindfulness CLE work- something shifts within my vibrational space around your physical spaces in your home shops, when you cultivate self-awareness and I am there. Embodying it. So, I encour- or working environment and take inven- and are able to use this awareness to re- age you to choose one of these powerful tory. What is serving you? What isn’t? duce your automatic reactions while moving self-loving mantras to memorize or modify What brings you joy? What doesn’t? towards conscious responses, you become for your own specific needs, making space Make space for what matters most in superhuman to some extent. Not many are to just repeat it. You never know. It could your life. able to even attempt to become present change your mind. It could change your life 2. Relationships – Take a look at your re- and use that awareness to fully show up in because there is no separation between the lationships. Are the people in your life their lives with love, compassion and kind- body and the mind. If the mind thinks it, the strengthening you, inspiring you, lifting ness. We use mindful movements, breath- body responds. you up, and helping you grow? Or are ing and awareness to get us to the present This mantra is especially powerful in the they limiting you, holding you back, and moment. When you are present, you are aim to create space. Chant it internally or preventing you from growing? We can able to settle the body down and begin to out loud for 3-5 minutes a day. If you can’t make choices about with whom we spend become the master of your emotional and do a full five minutes, start with two min- our valuable time, so choose wisely. physical reactions. utes, and finish with 2-3 more minutes later 3. Emotions – If you are holding on to anger, Dr. Joe Dispenza states: “…(w)hen you the same day. resentment, or heartbreaks, let them go. master your emotions, you master your cre- Forgive those who have hurt you. Forgive ations, period…When you take your atten- “Inhale - Let. Exhale - Go.” yourself. Emotions become stored in our tion off that person or that condition in your ______bodies leading to energy blockage, in- life, you are breaking your energetic bond Samara Anderson is a Legal and Policy flammation and disease. As the Buddha with that person or that situation. And this Advisor for the State of Vermont, Agency of says: “Holding on to anger is like grasp- is when we turn back into possibility, back Human Services, a Registered Yoga Medici- ing a hot coal with the intent of throwing into energy. You are taking your power back neTM Yoga Teacher and a social entrepreneur it at someone else, but you are the one – your permission to create again.” teaching mindfulness to stressed profes- who gets burned.” I have also heard that So, join me this Spring to create space in sionals and creating a non-profit community resentment is like a poison we take, think- your body, mind and life for what you what farm in Vermont to use farm animals, nature ing it will hurt someone else. to bring forward in 2020! Become the con- and mindfulness to heal people. She co- 4. Thoughts – Reflect on those thoughts scious and deliberate creator of your life! chairs the VBA Lawyer Well-Being Section. and habits which lift you up and those that

26 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org

by Sarah Wilson, Esq. VBF GRANTEE SPOTLIGHT WomenSafe

The Vermont Bar Foundation (VBF) con- tinues its series highlighting grantees that Supervised Visitation Program provide legal services for low-income Ver- monters. Through IOLTA monies and other WomenSafe has a Supervised Visitation contributions, the VBF is able to help fund Program which is housed at its Middlebury a range of competitive and noncompeti- location. Last year, the Center completed tive grants throughout Vermont. Women- 213 supervised visits and monitored 23 Safe (“Center”) based in Middlebury, Ver- children needing what the Center identifies mont is one grant recipient. as “children needing increased safety” dur- WomenSafe has been advocating for ing parent-child visitations. (WomenSafe, Vermonters across the gender spectrum 2019). Many supervised visitations at Wom- for over 40 years. The IOLTA grant funds enSafe are included as part of parent-child received by the Center has provided count- contract orders issued by the court system. less hours of legal services to people expe- riencing physical, emotional and sexual vi- Transitional Housing Program olence in Addison County. In the past year, the Center has assisted survivors by inter- While Vermont’s rural landscape has facing with the legal community through made access to WomenSafe’s services the Addison County Legal Clinic, State’s somewhat difficult for survivors outside of Attorney’s Office and private attorneys. the Middlebury area, Kerri and Christina WomenSafe staff and volunteers work with state that the lack of affordable housing is the legal community to support survivors in probably one of the biggest deterrents to relief from abuse cases, parentage cases, their clients. In 2018-2019, WomenSafe as- and criminal cases. This legal assistance in- sisted 23 adults and 12 dependents in lo- cludes advocating for detailed parentage ly 8,691 volunteer hours through the hot- cating and securing housing. In recognition orders, which provide for specific super- line, in-person meetings, court accompa- of the growing need for housing, Women- vised visitation, in a safe setting. niment, administrative support and board Safe itself is expanding its own program In early February, I had a chance to speak leadership. (WomenSafe, 2019) with the purchase of a home in the Mid- with WomenSafe Executive Director, Kerri dlebury area. This transitional housing will Duquette-Hoffman, and Services Director, Training & Education Program provide much-needed relief for survivors Christina Grier. It was important for them and their families. This project was a labor to point out the resourcefulness and resil- The Center’s Training & Education Pro- of love for the staff of the Center, and they iency of the survivors who access their ser- gram reaches approximately 2,572 adults are excited to bring this transitional hous- vices on a daily basis. The Center served and youth, with 355 prevention workshops, ing opportunity to their network of clients. 515 people with a total of 4,800 in-person presentations, and professional trainings. Kerri and Christina are happy to share meetings and telephone calls during the 11 elementary schools, 4 middle schools successful and empowering stories from fiscal year of July 1, 2018–June 30, 2019. and 2 high schools along with the North- survivors who use their services. While lack Their data indicates that the program lands Job Corps, have all received training of transportation, poverty, and yes, even worked with relatives and caregivers of a and educational programs. Kerri and Chris- weather, are barriers to service here in Ver- total of 325 children affected by domestic tina indicate that topics include boundar- mont, WomenSafe continues to be a bea- violence. (WomenSafe, 2019) ies, anatomy, consent and communication, con for Vermonters in Addison County ex- and empathy-building skills. These pro- periencing physical, sexual and emotional Mission Statement grams are taught to children enrolled in violence. pre-school through high school. Research- ______“WomenSafe works toward the elimina- informed strategies like bystander inter- Sarah Wilson, Esq. has a general prac- tion of physical, sexual, and emotional vi- vention prevention are highlighted. Wom- tice in Bennington, Vermont and serves on olence through direct service, education, enSafe interacts with the adult community the Board of Directors for the Vermont Bar and social change.” by facilitating support groups at local Mid- Foundation. dlebury College and throughout Addison Crisis Hotline and Advocacy County. Participants in these groups dis- cuss a variety of topics which may include WomenSafe provides a 24-hour hotline healthy relationships, preventing child sex- (802-388-4205), which is staffed in part, ual abuse, consent, sexual harassment, by the more than 75 community members dating violence and social media. Approxi- who donate their time to WomenSafe. This mately 948 adults and youth participated in hotline is confidential and provides direct community outreach programs during Wo- access advocates for persons in crisis. Wo- menSafe’s 2018-2019 fiscal year. menSafe volunteers donated approximate-

28 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org Thank You for Supporting Pro Bono Services

The Vermont Bar Foundation is our con- supported 12 programs. These programs ney licenses, duit to using IOLTA (interest earned on law- include the Children First! Legal Assistance • donating through United Way or the yers’ trust accounts) monies as well as di- Project and Vermont Immigrant Assistance State of Vermont VTSHARES program, rect contributions to fund a variety of non- Project at the South Royalton Legal Clinic, • listing Vermont Bar Foundation as your profit organizations that provide needed VBA’s Low Bono County Projects, Vermont charity in your Amazon account. Am- civil legal services and education for low- Legal Aid, Have Justice Will Travel, Orleans azon will donate 0.5% from eligible income Vermonters throughout the state. County Restorative Justice Center, and lo- AmazonSmile purchases. You shop. All Vermont-licensed attorneys in active cal domestic violence programs such as Amazon Gives! status, as well as all justices and judges, are Steps to End Domestic Violence. A full list members of the Vermont Bar Foundation of current grantees can be found at www. We thank the many lawyers who provide (VBF). The monies from IOLTA accounts are vtbarfoundation.org. pro bono and low bono assistance. They the main source of the VBF funding but are The VBF thanks lawyers, the judiciary, provide an invaluable service to Vermont- insufficient to meet the full need for legal Prime Partner institutions, and the corpora- ers in need and to assisting the efforts of services. Your continued support plays an tions who contribute financially. Your gifts our grant programs. important role as the VBF strives to meet include: Contact Deborah Bailey at dbailey@vt- its mission to fund needed civil legal ser- • direct contributions by individuals, barfoundation.org or at 802-223-1400 for vices. firms and county bar associations, information how to maximize IOLTA ac- In 2019, the VBF awarded $856,754 and • opting-in when renewing your attor- count interest rates or to donate.

Listed below are the individuals and law firms who donate to the Vermont Bar Foundation in 2019.

*Includes General Donations only, such as opt-in, Pro Bono Conference and other non-specific gifts, and does not include Access to Justice.

Anonymous (11) Michael Hill Jay Spitzen Enrique Arduengo Sarah Hofmann Laureen Vitale Christopher M. Bennett Christopher Jernigan Barbara Waters Clark Bensen Julie Kalish Mary Welford Albert G. Besser A. Jay Kenlan, Esq., PLLC Diane Wheeler Jason Broughton Stephen Klein Holly Wheeler Victoria Brown Kyle Landis-Marinello Marc Wiener Clare Buckley Brian Lansbury John H. Williams, II, Esq. Robert Butterfield Zachary Manganello Elizabeth C. Woodcock Kevin Candon, P.C. Kelly Massicotte Rachael Worthington Edward J. Carroll Lon McClintock Sophie Zdatny James F. Carroll Elizabeth Miller Beth Zelman Jonathan Cohen, Law Office John Monahan Anne E. Cramer Madeleine Mongan TRIBUTE GIFTS Lawrin Crispe James Murphy Michael Desautels Jennifer Myka Dedicated to William Dakin Mary L. Desautels Ralphine O’Rourke James Murphy Judith Dickson Jean Pagliughi Michael Donofrio Joseph R. Perella Dedicated to Judy and Mike Glass Veronica Fallon Jessica Pollack Jessica Pollack Thomas Ferrini Michael Popowski Robert Finley Kimberly Pritchard In Memory of Chip McClintock Mark Furlan Ratchford Law Group, PC Lon McClintock Erin Gallivan Jennifer Rood Matthew Getty Phyllis E. Rubenstein In Memory of Scott Skinner Lana Golden Rutland County Bar Association Kelly Massicotte Maxine Grad Anna Saxman Phyllis Rubenstein Mary Granger Lila Shapero

Share Collective Wisdom Today! www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 2 9 Third Annual Martin Luther King, Jr. Poster Essay Contest for Middle School Students Impressive Submissions Once Again!

For the third year in a row, the Vermont Bar Association, in part- lunch counter in Greensborough, North Carolina, and a dove carry- nership with the Diversity Section and Young Lawyers Division, ing an olive branch connecting the two scenes. Elizabeth explained sponsored a Martin Luther King, Jr. Poster-Essay Contest to cel- in her essay how although the end of the Civil War resulted in an ebrate the life and message of the late Dr. Martin Luther King, end of warring tensions, a lack of justice eventually led to the Civ- Jr. The contest was open to all Vermont middle school students, il Rights Movement in which Dr. King played such an instrumen- including those from public tal role. She also explained how schools, private schools and the dove symbolized peace; home schools. This year the “the core value of Dr. King.” students were asked to cre- The team of Kaitlyn DeBonis ate a poster and write a short and Courtney Ezzo, 8th grad- essay interpreting what Dr. ers from Poultney High School, King’s quote: “True peace is received second runner-up not merely the absence of plaques for their submission, tension; it is the presence of featuring a shadow outline of justice” means to them. Inas- Dr. King speaking, the scales of much as the quote is associat- justice, and the subject quote. ed with the Montgomery Bus Noting that “the inspiration Boycott, resources regarding of his words are still affecting the boycott and Dr. King’s people today,” the team used connection with the boycott vivid colors to symbolize Dr. were also provided with the King’s creativity, imagination, contest materials. A commit- trustworthiness, dependability tee comprised of representa- and strength. tives from the Diversity Sec- The students were photo- tion, the YLD, and the VBA graphed with their winning selected one winner and two submissions and Governor runners-up from many cre- Scott. The Governor spoke of ative and thoughtful entries the importance of Dr. King’s submitted from throughout message, and how we must the state. look to today’s youth to be to- Governor Phil Scott pre- morrow’s leaders. He encour- sented awards to the win- aged young people to work to- ning students at the State- gether to find solutions, to see house on January 22, 2020. the good in everyone, and to The team of Nicolas Mila- live by the golden rule. He then zzo and Zachary Davis, 8th visited with each of the winners graders from Poultney High to discuss their work and pre- School, were presented with sented the awards to them. first-place plaques and a trav- After the ceremony, the eling trophy for their school. group attended a statehouse Their winning submission fea- tour and then were invited to tured a drawing of Dr. King the Vermont Supreme Court addressing a diverse crowd where they were greeted by of peaceful protesters. Not- Chief Justice Paul Reiber and ing how Dr. King’s message Justices Karen Carroll, Harold at the Montgomery Bus Boy- Eaton and William Cohen. Jus- cott still resonates today, tice Reiber congratulated the they explained in their essay: students and spoke to the im- “You shouldn’t ignore things portance of Dr. King’s legacy. that bother you. You must do The students and their families something about them.” enjoyed a light reception and a Elizabeth Cunningham, tour of the Supreme Court con- a 7th grader from Edmunds ducted by Justice Eaton. The Middle School in Burling- students’ posters and essays ton, received the first runner- were on display at the Supreme up plaque for her poster de- Court building throughout the picting a scene from the Civil month of January. War, the famous Woolworth’s

30 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org by Mark C.S. Bassingthwaighte, Esq. Guidelines to Closing Your Law Practice

A lawyer can decide to close her practice member to retain your original file and re- turned them to the client. If you did not, do for any number of reasons. Disability, re- turn to the client any original documents it now. In fact, a review of every file prior tirement, disbarment, a move out-of-state, and/or client property such as original wills, to destruction is a good idea as sometimes or a career change are the more common deeds, stock certificates, signed contracts, original documents were overlooked when ones we hear. While the specific steps that promissory notes, etc. Again, clients get the file was initially closed. need to be taken can vary significantly de- copies of your file; you get copies of their Remember that in most jurisdictions the pending upon the reasons behind the clo- original documents. Don’t forget to doc- file belongs to the client and some clients sure, this article seeks to provide some ument the disposition of the files in case will want their original file as opposed to general guidance on the principal issues questions come up post closure. Have cli- having it destroyed. This means that you that will arise. At the outset, understand ents sign an authorization to release their can’t simply decide to destroy client files that in many instances the process of prop- file to their new attorney or sign an ac- absent client awareness and approval. If erly closing a law practice can easily take knowledgement that they picked up a copy you did not obtain the client’s instructions six to twelve months and sometimes lon- of their file. when you closed any given file, seek those ger because the obligations to protect cli- On matters that have pending court instructions now. Many attorneys will sim- ent confidences as well as the interests of dates, depositions, or hearings, have a con- ply send letters to their clients’ last known the client make closing a law practice more versation with the client in order to discuss addresses. Once you learn their wishes, difficult than closing other types of busi- how to proceed. A request to reset a hear- carry them out. If you are going to destroy nesses. Finally, note that jurisdictional rules ing or a request for an extension or con- a file, make sure you follow through with do differ and a review of your local rules tinuance may be called for and, once re- the notion of destruction. “Destruction” and ethics opinions, perhaps coupled with ceived, confirmation of the granted re- does not mean leaving the file in a dump- a call to your local bar counsel would be quest should be sent to opposing counsel ster behind the office. You should inciner- well advised early on in the process. and your client. For cases before a court or ate or shred these files. You cannot com- The first step one should take after mak- administrative body, obtain client permis- promise your client’s confidences, even in ing the decision to close is to determine sion to submit a motion and order to with- file destruction. Again, document your what files can be finalized prior to closing draw as the attorney of record and at an actions. Track the client name, file mat- and then seeing that enough time is set appropriate time verify that all motions to ter, method of disposition (destroyed, re- aside to enable you to follow through. This withdraw have been granted. If the client turned) and date of disposition. does mean that you will need to make a has obtained a new attorney, make certain Turning to one specific business concern, decision as to when to stop taking on new that a Substitution of Counsel is filed. contact your malpractice insurance carrier matters and also when to notify staff as If, over the course of your career, you well in advance of closing. The purpose is they will be interacting with the public as failed to review and destroy old files that to begin the process of learning about the well as current and past clients once the no longer needed to be retained, now is options for obtaining an extended report- news breaks. the time to begin. The costs to continue to ing endorsement (ERE - more commonly The second step is to write and send a maintain closed files can be significant and referred to as a “tail policy”). This endorse- letter to all clients with active matters that you have an ethical obligation to take care ment is not a new policy. It simply provides cannot be closed in order to advise them of this. Don’t burden a spouse by leav- an attorney the right to report claims to the of the upcoming change. Typically, these ing this for them to deal with should your insurer after a policy has expired or been letters will inform the client of any relevant spouse outlive you. cancelled. Again, it is important to note time limitations or time frames, provide in- When you originally closed the file, you that under most ERE provisions the pur- structions as to how and where they may should have separated all the original doc- chase of the endorsement is not one of ad- obtain a copy of their file, and advise them uments that belong to the client and re- ditional coverage or of a separate and dis- to find a new attorney as quickly as possi- ble. An offer to assist the clients in finding a new attorney by providing a few names or the phone number to a local lawyer re- ferral service would also be appropriate. Don’t overlook the importance of setting forth your file retention policy and provid- ing post closure contact information in the event a client needs a copy of their file at some later point in time. It is for this reason that some jurisdictions also require that a similar letter be sent to past clients. Where called for, these initial letters are usually followed up with a full accounting of client funds that remain in the trust account and/ or a statement of fees owed by the client. As clients respond to these letters, re- www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 31 tinct policy. This means no coverage will be any warranty of any kind, whether express available for a wrongful act that takes place or implied, including, but not limited to, during the time the ERE is in effect. So if a the implied warranties of merchantability, claim arises several years post retirement fitness for a particular purpose, or non-in- out of work done in retirement, for exam- fringement. ple writing a will as a favor for a friend, Further, by making this publication or there would be no coverage for that claim document available, ALPS is not rendering under the ERE. That’s worth remembering. legal or other professional advice or servic- ______es and this publication or document should ALPS Risk Manager Mark Bassingth- not be relied upon as a substitute for such waighte, Esq. has conducted over 1,000 legal or other professional advice or ser- law firm risk management assessment vis- vices. ALPS warns that this publication or

Guidelines to Closing Your Law Practice Guidelines to Closing Your its, presented numerous continuing legal document should not be used or relied education seminars throughout the United upon as a basis for any decision or action States, and written extensively on risk man- that may affect your professional practice, agement and technology. Check out Mark’s business or personal affairs. Instead, ALPS recent seminars to assist you with your solo highly recommends that you consult an at- practice by visiting our on-demand CLE li- torney or other professional before making brary at alps.inreachce.com. Mark can be any decisions regarding the subject matter contacted at: [email protected]. of this publication or document. ALPS Cor- Disclaimer: ALPS presents this publica- poration and its subsidiaries, affiliates and tion or document as general information related entities shall not be responsible for only. While ALPS strives to provide accu- any loss or damage sustained by any per- rate information, ALPS expressly disclaims son who uses or relies upon the publication any guarantee or assurance that this pub- or document presented herein. lication or document is complete or accu- rate. Therefore, in providing this publica- tion or document, ALPS expressly disclaims

32 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org by Alison Sherman, Esq. The SECURE Act Changes How Beneficiaries Inherit Retirement Accounts

On December 20, 2019 the “Further Con- The prior rules are generally as follows: Internal Revenue Code. On top of the exist- solidated Appropriations Act, 2020” be- • If the retirement account owner named ing rules, “H” layers a new payout period re- came law. As part of the Act and in part a designated beneficiary of his or her quiring designated beneficiaries to withdraw to pay for the over 1.7 trillion in spending plan, upon the death of the account all plan funds within 10 years. This new 10- that the Act contemplates, Section “O” sets owner, the balance of the account could year payout period replaces the life expec- forth the Setting Every Community Up for be distributed in annual installments tancy payout method under the prior rules, Retirement Enhancement Act (the “SECURE over the life expectancy of the desig- with the exception of five categories of “eli- Act”). The SECURE Act significantly changes nated beneficiary, unless taken sooner gible designated beneficiaries” (“EDBs”). the distribution rules for beneficiaries of tax- as elected by the designated beneficia- As a result of the new section “H”, there deferred retirement plans and individual re- ry or as otherwise required under the are now three classes of retirement account tirement accounts, that in turn have a major plan. beneficiaries: 1) designated beneficiaries, 2) impact on the estate planning landscape for • If the plan is distributed to a non-desig- EDBs and 3) non-designated beneficiaries. retirement benefits. nated beneficiary and the account own- The new class of EDBs include the surviv- This article briefly summarizes key chang- er had not yet started taking distribu- ing spouse of the account owner, a minor es and new distribution planning possibilities tions from the plan at his or her death, child of the account owner, a disabled or as a result of SECURE. However, there are a the non-designated beneficiary is re- chronically ill beneficiary, and a beneficiary host of exceptions to the new regimen and quired to withdraw the benefits within who is less than 10 years younger than the planning options that are beyond the scope 5 years after the owner’s death. account owner. For each of these EDBs, the of this article. In addition, clarifying regula- • If the account owner died after his or her life expectancy payout method will still ap- tions and guidance from the Internal Reve- required distribution beginning date, a ply, with some exceptions. Notably, the life nue Service will be necessary determine to non-designated beneficiary takes distri- expectancy payout method expires when a the full scope and implications of the provi- butions in annual installments over what minor child of the account owner reaches sions. Careful review of the SECURE Act, any would have been the remaining life ex- the age of majority, at which time the 10- clarifying regulations, and client estate plan- pectancy of the account owner if he or year payout rule will apply. ning documents is critical for estate planning she had not died. The specific language in SECURE imple- practitioners and retirement plan account ments the 10-year rule by referring to the owners alike to determine what changes, if Additional rules applied if the designat- 5-year rule (see discussion under Prior Rules any, are necessary under SECURE. ed beneficiary was the surviving spouse of above). To date, this has been interpreted to As a preliminary matter, the SECURE Act the account owner. Further, under the prior mean that the new 10-year rule will be ap- applies only to “certain defined contribution rules, if a designated beneficiary died before plied in the same manner as the 5-year rule. plans”. Defined benefit plans, including cer- the end of his or her life expectancy payout As such, the inherited retirement account tain annuity payouts from an IRA or other period, the next beneficiary in line (wheth- must be liquidated by December 31 of the defined contribution plan that were already er or not qualifying as a designated benefi- year in which the 10th anniversary of the ac- finalized prior to the enactment of SECURE ciary) could withdraw over the remaining life count owner’s death occurs. This means if are not affected. In this article, “account expectancy of the original designated ben- the account owner dies early in the year, owner” is used to mean the employee in a eficiary. there are close to 11 tax years over which qualified defined contribution plan or the the designated beneficiaries may take with- owner of an individual retirement account. The Addition of SECURE drawals and liquidate the account. Importantly, the only minimum distribu- The Prior Rules SECURE does not amend or replace sec- tion that is required under the 10-year rule tion “B” nor does it change the definition of is the liquidating distribution at the end of Prior to SECURE, the distribution rules “designated beneficiary.” Instead, SECURE the 10th year. However, a beneficiary can al- for retirement plan death benefits were set adds a new section “H” to § 401(a)(9) of the ways take distributions sooner. A beneficiary forth in section “B” of § 401(a)(9) of the In- ternal Revenue Code. Section “B”, as sub- stantially enhanced by the Treasury Regu- lations, provides for several benefit payout methods depending on whether the account owner had started taking distributions from the plan prior to death and whether the ben- eficiary is a “designated beneficiary.” Under the rules, a “designated beneficia- ry” is an individual, or group of individuals, specifically named by the account owner. A trust can also qualify as a designated bene- ficiary if it meets certain requirements. Any other beneficiary, such as a charity, or an es- tate, is, for the purposes of this article, re- ferred to as a “non-designated beneficiary.” www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 33 Renewing

The SECURE Act Your License? Due to COVID-19, the Vermont Supreme Court removed the cap for the maximum allowable pre- recorded CLE’s for the should work with his or her professional ad- client’s personal situation and goals for the visors to determine the most effective way beneficiaries of his or her retirement plan. 2018-2020 CLE cycle, to utilize plan distributions. A client who simply leaves his or her re- essentially eliminating the Upon the death of any EDB, the exception tirement account outright to various individ- live requirement for those ceases to apply and the 10-year rule will ap- uals, such as adult children, may have noth- renewing by June 30, 2020. ply for the recipient of any remaining funds. ing to change. The children will have to pay taxes sooner than was previously expected, Of course the VBA will See-Through Trusts but the resulting tax is precisely what SE- CURE was enacted to address, and as such continue to provide One common estate planning technique there is little to be done in this regard. quality live programming, used to control the disposition of retirement Similarly, accumulation trusts will still work including our recently account funds is the use of “see-through under SECURE, but the trustee will be faced added webinars, but don’t trusts.” See-through trusts can still qualify with a substantially accelerated tax bill, since forget that we have many as beneficiaries under the new regime cre- all benefits must be distributed to the trust, ated by SECURE. However, retirement ac- at the trust’s high tax rates, within 10 years. pre-recorded digital titles count distributions to and from these trusts As with outright beneficiary designations, available, updated regularly! may not operate in the same manner con- there are limited options to avoid this tax. templated when the trusts were created un- A major exception are certain trusts for the Some of our newest titles der the prior rules. sole life benefit of a disabled or chronical- include areas such as: There are two types of see-through trusts. ly ill beneficiary. If a client’s estate plan in- One is a “conduit trust” that requires the cludes a disabled or chronically ill individu- • Cannabis Business Law trustee to immediately distribute funds with- al, in-depth review of the client’s estate plan • Food & Beverage Law drawn from a retirement account to the in- and SECURE exceptions is critical to ensure dividual trust beneficiary or beneficiaries. compliance with the new rules. • Criminal Law, With SECURE, if the primary beneficiary of A conduit trust will also still work under a conduit trust is an EDB, generally the life SECURE. However, if a client strongly fa- • Bankruptcy & expectancy payout granted to the EDB will vored the gradual payment of funds over Student Loans apply. If the beneficiary of a conduit trust is a trust beneficiary’s lifetime, and created a • Implicit Bias not an EDB, then the trust, and that benefi- conduit trust relying on the lifetime expec- ciary, must receive an outright distribution of tancy payout method, the client will need • Employment Law & all of the retirement benefits within 10 years to explore other options to avoid distribu- Immigration of the account owner’s death. tion of the plan funds to said trust benefi- • Land Use The other see-through trust is an “accu- ciary within 10 years of the account owner’s mulation trust” that does not require the death. • Family Law trustee to distribute funds withdrawn from a While many planning techniques were • Collaborative Divorce retirement account immediately to the trust not specifically invalidated as a result of SE- beneficiary or beneficiaries. With the excep- CURE, the changes may result in distribu- • Foreclosure Defense & tion of certain trusts for the sole life benefit tions that are contrary to the intent of the Mediation of disabled or chronically ill beneficiaries, an account owner. As a result, all beneficiary accumulation trust must take distribution of designations and estate plans should be re- • Trial Practice the entire plan balance within 10 years af- viewed to determine what changes, if any, • Probate 101 ter the account owner’s death. The benefi- are necessary to effectuate a plan that will ciary or beneficiary will in turn receive dis- accomplish an account owner’s goals. and more! tributions from the trust as determined by ______the trustee or as required by the terms of Alison Sherman, Esq. is an associate in the There is surely something the trust. Lebanon, NH office of Downs Rachlin Martin for everyone so visit our in their estate planning group. Digital Library today, under Estate Planning Considerations the CLE/Events tab at The impact of SECURE on a client’s over- www.vtbar.org. all estate plan will depend entirely on the

34 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org by Dan Richardson, Esq. Paralegal Licensure is a Solution - Part 2

The Vermont Joint Commission on the Fu- ical profession. One hundred years ago, to start with the same approach. To look at ture of Legal Services, at the urging of Ver- the medical profession had more in com- what is best for the client—and by exten- mont Surpeme Court Justice Reiber, provid- mon with the legal profession. The prac- sion the public—and what builds the profes- ed its Final Report and Recommendations tice of medicine was dominated by doc- sion into a collaborative and integrated sys- to the Vermont Bar in September of 2015 tors who practiced alone or in small firms. tem that supports the array of services that on how to increase access to justice for Ver- They had to dun clients for payment, modify we offer or could offer in pursuit of resolving monters. the scope of services based on a patient’s our clients’ issues and disputes. Within the Joint Commission’s Report was ability to pay, and they often had to argue the Legal Education Committee’s strong with a patient about why a particular medi- What is a Paralegal? recommendation that Vermont adopt a cal process was necessary. Doctors did not paralegal licensing program. Unfortunately, have physician assistants, nurse practitio- The best place to start any inquiry is to this recommendation has since languished, ners, registered dieticians, or any of the var- identify the players as it were. When we talk but the problems with access to justice in ious medical professionals that we take for about paralegals, we need to acknowledge Vermont remain. granted. They also lacked the substantial in- that this term in Vermont is nearly mean- Members of the VBA Paralegal Section, frastructure that we associate with medicine ingless because of the wide expanse it cov- Carie Tarte, Corinne Deering, Lucia White today. Doctors relied more on their wits and ers. A paralegal in Vermont is someone who and Lynn Wdowiak, in conjunction with Dan diagnostic skills than technology and sup- has a legal education, extensive training, Richardson, then-President of the VBA when port teams. Today, medicine is institutional- and certification. A paralegal in Vermont the Joint Commission Report was issued, ized. We go to university-run medical sys- is also someone who just started work at a examine whether or not Vermont is ready tems where we are surrounded by technol- firm yesterday without any legal education, for paralegal licensure and whether or not ogy, and we are treated by teams of para- training, background, or certification. It also paralegal licensure is an apporpriate solu- professionals. If we see a doctor, it is usually includes everyone in between. tion to Vermonters’ lack of access to justice. momentary or for something serious. At the same time, paralegals can largely This is the second in a two part series that Looking by analogy to the changes of the be grouped into one of three categories. explores whether Vermont is ready for some medical practice to understand the poten- The first group are those paralegals that form of voluntary paralegal licensure and tial for the legal profession is a helpful exer- have an educational background, training, whether paralegal licensure can increase cise. This is not to say that the future of the and certification that qualifies them as para- Vermonters’ access to justice. The first part legal profession lies in the same direction, legals. They have often graduated from a was published in the 2019 Winter edition of but it is instructive to see how that profes- paralegal program and they have the for- the Vermont Bar Journal. sion incorporated its para-professionals into mal training that puts them on a track simi- an integrated practice where each profes- lar to an attorney who went to law school Is Vermont Ready for sional supports the other and puts the pa- and passed the bar. The second group are Independent Paralegals? tient/client at the center of the system. As those paralegals who lack the formal educa- we consider our future, it is only sensible tion or training but who have had extensive Paralegals working independently or semi-independently within the legal sys- tem is a current reality. Paralegals do title searches and real estate work. They rep- resent the state in child support hearings. They manage and oversee various compo- nents of litigation. They do intake and cli- ent management. They are essential parts of a family law practice, and every one of us knows a lawyer who is somewhat of a front for a sharp paralegal who is the office’s real power. Any handwringing that we as a pro- fession express over this fact is akin to the concern that individuals once expressed about those dangerous automobiles run- ning their buggies off the road. The fact of the matter is that paralegals acting independently in their myriad forms are here and here to stay. As a profession, our challenge is to meet this reality, to en- sure that the public is protected from any issues or abuses of this system, and to see whether this area can expand our ability to provide greater access to the legal system. When we think about the issue of parale- gals or any issue concerning changes to the profession, it is useful to think of the med- www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 35 experience through years of paralegal work What Level of Education and sues of constitutional law, civil procedure, to function at an equivalent professional lev- Experience are Appropriate? and legal profession, but there should be an el. These paralegals are often older and pre- emphasis on the practical. At the same time, date the more formal educational programs Nearly a decade ago, Washington state this education should be developed and tai- now available. They are similar to attorneys changed the conversation around legal lored so that anyone who wants to become that rose through the clerkship program and paraprofessionals by creating the Limited a Licensed Paralegal—whether a student, Paralegal Licensure who read for the law. The third and final cat- Licensed Legal Technician (LLLT). The in- an individual looking for a career change, or egory are those individuals without educa- stinct behind this change was both noble an assistant in a law firm looking to better tion, training, or experience that have been and necessary. The Washington Supreme him or herself—can take the requisite ed- hired by a firm or agency and given the title Court looked at the decline in available le- ucation without having to drop everything paralegals. In some cases, these individuals gal services and the growing gap in access and effectively enroll in law school. are doing paralegal work under the close to justice, and the Court acted to create a At the same time, there is a reason for supervision of an attorney or doing admin- professional class that could address these rigor in legal education. The more inde- istrative work for which their more general needs. Unfortunately, the program has had pendent paralegals are, they more they will skill set is suited. several problems that have kept the num- have to know (and in a Socratic manner, If we propose to give paralegals more in- bers low. First, the Court created a program know what they do not know). Education dependence and the ability to perform more out of whole cloth, which meant that any- should rise above a CLE level to one of for- substantial representation, then we neces- one wanting to become an LLLT had to start mal training and should emphasize the ar- sarily have to cull these categories to cre- from the beginning. There was not eco- eas where they will be focused. ate more formal lanes so that the untrained nomic model or existing practice to join. In administrative assistant who is called a para- this respect, the risk was put entirely on the How independent should paralegals be? legal is not allowed to represent clients in putative LLLTs to seek the education and a technical hearing. As a modest proposal, licensure, and then build a practice from This is an issue of some debate, and the we should be limiting the title “Paralegal” scratch. If you were unsuccessful, there was reality is that just as we do not have nurs- to those individuals who through training, no backup plan. es doing brain surgery, there are some education, and/or experience have substan- Adding to this entrepreneurial risk is the roles that attorneys must continue to per- tive knowledge of legal issues, practice, and burden of education. LLLTs must have at form. But the question of what paralegals procedure. In this respect, the title should a minimum an associate-level degree, 45 can and cannot do is not the key issue in have more meaning than we currently give credit hours in the core LLLT law school- defining the independence of a paralegal. it. This would elevate paralegal from its level curriculum, and 3000 hours of expe- Instead, the key question is whether para- catch-all meaning to something similar to a rience.1 This is a substantial investment for legals should be licensed to work indepen- physician’s assistant or nurse practitioner. It anyone. The question is whether such train- dent of law firms, like LLLTs, or if they should would also signal to those of us in the pro- ing and education makes a difference. be required to be affiliated, associated, or fession and to the general public that this If Vermont proposes to license parale- directly employed with a law firm. individual has a specific skill set that rises to gals, there should be some education com- In many ways, this is the key question for a higher level of professional ability. ponent, but this education should not be paralegal license. Too much independence, restricted. There should be grounding in is- and there have to be risk mitigation steps

36 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org like education and experience (as in the LLT example, the 813 financial disclosure at the tem, and even the efficacy of the system Paralegal Licensure case), or complicated practice rules so that beginning of a divorce that would short cir- to resolve disputes. Despite changes, the paralegals look more and more like attor- cuit later disputes. A number of these dock- adversarial trial system remains one of the neys. Too little independence, and licensure ets are form-driven dockets where a parale- most powerful tools ever created for resolv- becomes meaningless as everything is run gal could navigate for clients and get them ing disputes and protecting the democrat- through an attorney as it is now. But which- through the preliminary filings and substan- ic process in society. A public forum where ever the direction, we have to think of legal tially close to a resolution. citizens can file and air grievances against services like integrative health. The elephant in the room when lawyers each other and the state, where disputes Paralegals should have a certain level of talk about paralegals is trial work. Many at- and estates are resolved, and where crimi- professional independence, but it should be torneys are skeptical that a paralegal could nal prosecution takes place under the due in a way that encourages them to work with manage and conduct a trial. There is some process of law are foundational pillars of so- law firms. Paralegals should be another tool truth to this. Trial work is like surgery. It is ciety. Formalizing and expanding the role of for the public to receive meaningful assis- complex, requires nuance, and it carries paralegals and other par-professionals with- tance. Whether the paralegal’s job is to help high stakes. But we also have to recognize in this structure does not erode the founda- a client fill out a form, draft a motion, issue a that the trial format is an endangered spe- tion. Instead, it gives us more support. simple residential title opinion, or appear in cies. More and more dispute resolution and Change is coming. Every major inter- court at a status conference, the role should legal work is done behind the scenes and on net retailer or service provider (like Ama- not (and in practice does not) exist in a vac- paper. In this respect, a paralegal should be zon, Ebay or AirBnB) has its own electronic uum outside of the existing and traditional able to carve out a deep but narrow chan- dispute resolution mechanism. As a result, world of legal practice. nel of proficiency. In probate, for example, a growing number of commercial disputes This is an urge for moderation. We should the filing and administration of an estate is have been effectively eliminated from the not be re-inventing the wheel with parale- a skill. It has legal components to it, but no judicial process. This is both good (speedy, gal licensure. We should be taking an exist- one part dominates in complexity. They are efficient, and generally satisfactory reso- ing profession and elevating it. We need to all fairly straightforward. A seasoned para- lutions) and bad (the system is owned and recognize the professional already calling legal with experience in such areas is going controlled by one of the parties, does not themselves paralegals and allow them to of- to be better at such work than an attorney allow for due process, and may result in in- fer additional services that will assist those who has not done an estate in several years. adequate outcomes). If we, as a profession members of the public not being served by In the end, the answer to this question do not look for ideas that improve our sys- the legal profession as currently constitut- should lie with a committee of paralegals, tem, then the public will find other solu- ed. judges, and lawyers who can work out the tions. This, in turn, undermines the role of limits, but if the paralegal is working with an the courts and the legal process that pro- What are the jobs that a attorney or has that support through an as- tects us all. Creating licensed paralegals paralegal can handle? sociation, there is no objective reason to be- or similar licensure for paraprofessionals lieve that the paralegal cannot perform spe- makes sense. We, like our peers in the med- This is really a question of need and abil- cialized legal tasks or that such tasks should ical profession, need to make that leap to ity. Look at the court docket in Vermont, the be limited to drafting or informal research. expand the offerings to the public and to need exists in family law, creditor/debtor ensure that legal representation is a mean- law, administrative law, landlord/tenant, and What needs to change ingful concept. To that end, licensure that probate/guardianships. These are the areas and what does not? builds on the best of the existing paralegal where people are foregoing legal represen- profession is sensible and timely. tation largely because they cannot afford it. As a way of concluding, this portion of ______They are also the areas where lawyers are the article was originally commissioned as a Dan Richardson, Esq. is a past-president not practicing. These are all areas where we counter-response to the idea of paralegals of the VBA and VBF and has a civil litigation should be looking to empower and deploy exercising independent authority as a pro- practice at Tarrant, Gillies & Richardson in paralegals to fill a need. fession. The fact of the matter is, however, Montpelier. These are also areas where paralegals that we cannot afford to sniff at such ideas ______1 could make the greatest impact. These are as the legal profession must come to grips Washington State Supreme Court Admission and Practice Rules 3 and 5. high volume dockets where a reasonably with the changing nature of society, the gap priced paralegal could help navigate, for in who can afford to access the legal sys-

Part 1 of this article can be found in our Winter 2019 edition and was written Carie Tarte, RP, AIC, Corinne Deering, RP, and Lucia White, CP.

Carie Tarte, RP, AIC, is the VBA Paralegal Section Chair and a Senior Paralegal with the firm of Maley and Maley, PLLC in Bur- lington, where she assists with personal injury matters. In 2013, Carie obtained both her Registered Paralegal (RP) designation by passing the Paralegal Advanced Competency Exam (PACE) and her Associate in Claims designation by passing four exami- nations through the Insurance Institute of America. Corinne Deering, RP, is a Senior Paralegal with the firm of Paul Frank + Collins, P.C. in Burlington, where she assists with in- surance defense litigation, workers’ compensation and personal injury matters. In 2000, Corinne obtained her Registered Para- legal (RP) designation by passing the National Federation of Paralegal Associations’ (NFPA) Paralegal Advanced Competency Exam (PACE). Corinne has also served in many capacities on the Board of Directors of the Vermont Paralegal Organization (VPO) and has been a member since shortly after its inception in 1990. Lucia White, CP, is the Practice Manager and an Intellectual Property Paralegal with Dunkiel Saunders Elliott Raubvogel & Hand, PLLC in Burlington. Lucia has worked extensively in child welfare and currently volunteers at the legal clinic at Steps to End Domestic Violence. She has been president of the Vermont Paralegal Organization since 2017.

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 37 by Judge Dean Pineles (ret.) Kosovo: International Criminal Justice in Slow Motion

“A room inside this yellow house, of law work, with numerous short-term as- tics aimed at Serbian targets like govern- the journalists reported, had been set up signments in Russia with the Vermont Kare- ment officials and police officers in Koso- as a makeshift surgical clinic; and there, lia Rule of Law Project as well as a short- vo. Milosevic then unleashed war and eth- doctors extracted the captives’ internal term assignment in Kazakhstan. I also had a nic cleansing upon Kosovo in 1998-99, kill- organs.” (Carla Del Ponte, one-year residential posting with the Ameri- ing thousands and causing nearly a mil- Madame Prosecutor, 2008, at 276). can Bar Association Rule of Law Initiative in lion Kosovo Albanian refugees to flee into Georgia, a former Soviet republic, in 2008- neighboring countries. It was the worst hu- These words by Carla Del Ponte, for- 09. manitarian crisis in Europe since World War mer chief prosecutor of the International I then accepted an international judge- II. Criminal Tribunal for the Former Yugoslavia ship with the European Union Rule of Law On March 24, 1999, NATO commenced (ICTY), would ultimately lead to the creation Mission in Kosovo (EULEX) for twenty-eight its bombing campaign to stop the crisis, and of an entirely new international criminal months from 2011 to 2013. There, I served Milosevic capitulated that June. The Kosovo court in The Hague, officially known as the on three-judge panels (no juries) adjudicat- refugees flooded home, only to find wide- Kosovo Specialist Chambers and Specialist ing war crimes, judicial corruption, narcotics spread destruction and a total upheaval of Prosecutor’s Office. It opened in 2017 after trafficking, human organ trafficking, murder society resulting in large scale retribution nearly a long decade in the making. and other serious cases, all of which I de- against the remaining Serbian population. The court’s exclusive mandate is to pros- scribed in the Spring 2017 issue of the Ver- The KLA was considered NATO’s ally on the ecute high ranking veterans of the Kosovo mont Bar Journal.1 Unfortunately, creating ground, and KLA soldiers were seen as free- Liberation Army (KLA)--an ethnic Kosovo an entirely new judicial system rather than dom fighters, liberators and war heroes, and Albanian guerilla and separatist group--for improving and utilizing EULEX’s system has are still highly revered today, despite allega- human organ trafficking, war crimes, crimes been one of the main reasons for the inor- tions of serious revenge-type crimes as pre- against humanity and other serious offens- dinate delay. viously noted. es. These offenses were allegedly commit- The genesis for the new court takes us After the war, the United Nations Mission ted against Serbs, as well as ethnic Albanian back to 1999 soon after the war ended. But in Kosovo (UNMIK) took control of Kosovo, and Roma collaborators, and even against first it is important to understand the histori- and rebuilding the judiciary was an imme- Albanian political opponents, during and cal context. diate priority. It recruited international in- shortly after the disastrous war between vestigators, prosecutors and judges to deal Kosovo and Serbia in the late 1990s. Brief History with war crimes and other serious cases. While the initial rationale for a new court UNMIK was “status neutral,” meaning that outside of Kosovo was arguably justified at Kosovo was part of the Ottoman Empire KLA fighters and Serbian soldiers and para- the time of its creation, primarily because of for centuries, but was merged into Serbia militaries were all subject to prosecution. witness intimidation, its evolution has prov- within greater Yugoslavia following the Em- Starting in 2008, UNMIK began handing en to be a case study in international crimi- pire’s defeat in the Balkan War of 1912. Fol- its responsibilities to the European Union nal justice in slow motion with serious nega- lowing WWII, Yugoslavia became a commu- Mission in Kosovo (my employer), which car- tive consequences. nist federation of Balkan countries (Bosnia, ried forward the international judicial mod- This article will trace the development Croatia, Macedonia, Montenegro, Serbia el, and was likewise status neutral. On Feb- of the tribunal which by April 2020 still had and Slovenia) which was ruled by the iron ruary 17, 2008, Kosovo unilaterally declared not performed any significant judicial func- hand of Marshal Tito. During Tito’s rule, independence from Serbia with the support tions. The alleged perpetrators, almost all Kosovo enjoyed a period of autonomy with- of the US and most of the EU countries. The of whom are prominent today in Kosovo’s in Serbia. He died in 1980, and Yugoslavia declaration was subsequently upheld by the government and society, have been allowed began to slowly disintegrate. International Court of Justice in 2010. to go about their lives with impunity. And Although Kosovo was part of Serbia, it Today, Kosovo, a nation of about two mil- the surviving victims of these crimes, as well was populated overwhelmingly by ethnic lion people, is recognized by over one hun- as the families and loved ones of the 1,600 Albanians. They were Muslims, spoke Al- dred countries including the US, but not persons still missing, have been forced to banian, and used the Latin alphabet. The by Serbia, Russia, several EU countries and grieve in a constant state of uncertainty as minority Serbian population was Orthodox most international organizations. EULEX de- the wheels of justice grind slowly forward. Christian, spoke Serbian, used the Cyrillic parted in 2018, except for a small contin- (The missing persons include not only vic- alphabet, and resented Kosovo’s autonomy. gent, and returned all governmental func- tims of KLA criminality noted above, but Al- There was serious tension between the Al- tions including the judiciary back to local au- banian victims of rampant Serbian criminal- banians and Serbians, which Slobodan Milo- thorities. ity during the war. The ratio is unknown, but sevic, the Serbian leader of Yugoslavia, ex- Serbian atrocities are generally considered ploited when he rose to power in the late The Montgomery Investigations to have been far more widespread.) 1980s. In 1989, the Serbian minority took control of Kosovo through intimidation and In July 1999, shortly after the war’s end, Introduction force, and the Albanian majority was op- and while chaos and lawlessness engulfed pressed and marginalized. Kosovo, an American investigative journal- Following my retirement from the Ver- This gave rise to the Kosovo Liberation ist named Michael Montgomery, who was mont bench in 2005 after 21 years, I be- Army (KLA), which formed clandestinely in working for the London Daily Telegraph, re- came actively involved in international rule the mid-1990s and engaged in terrorist tac- turned to Kosovo to produce a documen-

38 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org tary about a purported Serbian massacre of investigate the claims of organ trafficking. organs. These organs were then smug- Kosovo Kosovo civilians in the town of Cuska. Mont- They went to a yellow house where they gled [out of Albania] for transplant gomery heard from various sources that the discovered medical paraphernalia in an out- into paying patients in surgical wards Kosovo Liberation Army had also engaged side trash heap-- pieces of gauze, a used sy- abroad… Victims deprived of their in atrocities including organ trafficking. As ringe, and empty intravenous drip bags— first kidney were sewn up and confined he explained years later at a conference in and spatters of blood in the house that again inside the shack until they were Belgrade, Serbia (emphasis added): could not be credibly explained by the own- killed for their other vital organs… Ac- er. However, the evidence was deemed in- cording to the sources, the smuggling At that time [1999] we heard that sufficient to warrant any criminal charges. operation occurred with the knowl- there were people – Serbs, Roma, The investigation was dropped, and inexpli- edge and active involvement of mid- some Kosovo Albanians – killed by the cably the evidence was later destroyed at and senior-level KLA officers.3 Kosovo Liberation Army, and they sim- the ICTY. ply vanished and it was very strange This was the first time that allegations of and we started looking into that. Carla Del Ponte’s Allegations organ trafficking were brought to the pub- And because of our work in Cuska, lic’s attention. They had not been prosecut- we got very good sources on the Koso- In 2008, Carla Del Ponte, former ICTY ed by the ICTY for reasons Del Ponte ex- vo Albanian side and we started talk- chief prosecutor from 1999 to 2007, au- plained: no bodies, no witnesses, no confir- ing with low levels of the KLA and they thored a book titled: Madame Prosecu- mation that the blood in the yellow house started telling us these stories of cap- tor. Confrontations with Humanity’s Worst was human, no one willing to talk, and no tured civilians being moved across the Criminals and the Culture of Impunity. She corroborative evidence beyond the medical border to Albania. claimed that the KLA had committed seri- paraphernalia. Also, there was a serious ju- We had multiple sources but not ev- ous crimes such as abductions, murder, tor- risdictional issue since the ICTY’s mandate erything lined up. We had people who ture and forced disappearances. And, cit- was limited to crimes committed during the heard that people have been taken ing credible journalists, whom she did not war which ended in June 1999, and it was away for their kidneys. There were name but clearly included Montgomery, she unclear whether any of the crimes alleged couple of houses we were able to lo- claimed that during the summer of 1999, by Del Ponte did so.4 cate where these things allegedly hap- one hundred to three hundred captives, in- Del Ponte’s shocking allegations re- pened, but we decided we didn’t have cluding Serbian prisoners, Albanian collab- ceived world-wide publicity. For example, enough information to publish and that orators and certain ethnic minorities, were The Guardian ran an article in its online edi- at the time our evidence didn’t support taken forcibly across the Kosovo border into tion in April 2008 with this headline: “For- the allegations. 2 Albania. There, they had their organs ex- mer war crimes prosecutor alleges Kosovan tracted as part of an international trafficking (sic) army harvested organs from Serb pris- However, Montgomery sent a memoran- ring run by members of the Kosovo Libera- oners.”5 dum outlining his findings to the UN Mission tion Army. in Kosovo and the International Criminal Tri- As she wrote: The Marty Report bunal for the Former Yugoslavia, but no fur- ther investigation was done by these institu- A room inside this yellow house, the Del Ponte’s allegations, although widely tions for several years. In 2004, Montgom- journalists reported, had been set up derided in Kosovo, led the Parliamentary ery returned to Albania with a team of inves- as a makeshift surgical clinic; and there, Assembly of the Council of Europe to ap- tigators from both UNMIK and the ICTY to doctors extracted the captives’ internal point one of its Senators named Dick Marty

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 39 from Switzerland, to conduct a thorough in- ately before having their kidneys re- of the KLA leadership. vestigation into her claims. For reasons that moved in a makeshift operating clinic.6 Information compiled by SITF in-

Kosovo are unclear, this was not a criminal investi- dicates that certain elements of the gation so another time-consuming investi- Marty’s report sent shockwaves through- KLA intentionally targeted the minori- gation would become necessary further on. out Kosovo and around the world, even ty populations with acts of persecution Marty and his team conducted the in- though he downplayed the allegations of that included unlawful killings, abduc- vestigation for two years and produced a organ trafficking. For example,The Guard- tions, enforced disappearances, illegal dense 27-page report in December 2010 ti- ian ran an online story on December 4, 2010 detentions in camps in Kosovo and Al- tled “Inhuman treatment of people and il- titled, “Kosovo PM is head of human organ bania, sexual violence, other forms of licit trafficking in human organs in Kosovo.” and arms ring, Council of Europe reports.”7 inhumane treatment, forced displace- Despite challenges in conducting the in- The sub-headline stated that a “Two year ments of individuals from their homes vestigation, such as fear on the part of po- inquiry accuses Albanian ‘mafia-like’ crime and communities, and desecration and tential witnesses to testify against the KLA network of killing Serb prisoners for their destruction of churches and other reli- war heroes, he claimed that he found evi- kidneys.” gious sites.10 dence corroborating Del Ponte’s allegations Marty’s report was also widely denounced of organ trafficking, although on a dramati- in Kosovo as false and biased against the On the subject of organ trafficking, Wil- cally reduced scale, as well as other serious KLA liberators. Nevertheless, the report liamson said (emphasis added): crimes. was officially adopted by the Council of Eu- He identified by name the alleged per- rope in January 2011. The Council urged I can say at this point, that theree ar petrators who were all members of the so EULEX, the entity then in charge of Kosovo, compelling indications that this prac- called Drenica Group, named after the birth- to launch a full-scale criminal investigation. tice did occur…and that a small num- place of the KLA. The Group included many In September 2011, EULEX authorized a ber of individuals were killed for the high-ranking KLA commanders who had be- criminal investigation to be headed by an purpose of extracting and trafficking come leading political figures after the war American, Clint Williamson, who was an ex- their organs. This conclusion is consis- including the then prime minister (and now perienced war crimes prosecutor and the tent with what was stated in the Mar- president), Hasim Thaci. former U.S. War Crimes Ambassador at ty Report, namely that a “handful” As stated in the Report (footnotes omit- Large. It was headquartered in Brussels, of individuals were subjected to this ted, emphasis added): and named the Special Investigative Task crime….Statements that have been Force, or SITF. Its mandate was to investi- made by some implying that hundreds 61… [A]ccording to well-substanti- gate and, if warranted, prosecute those in- of people were killed for the purpose of ated intelligence reports that we have dividuals identified in the Marty Report and organ trafficking are totally unsupport- examined thoroughly and corroborat- any others who might be implicated for or- ed by the information we have and that ed through interviews in the course of gan trafficking and other series crimes that Dick Marty had.11 our inquiry, Thaci’s “Drenica Group” might be uncovered. built a formidable power base in the Despite the compelling indications of organised criminal enterprises that The SITF Report organ trafficking, even on a much small- were flourishing in Kosovo and Albania er scale, Williamson said that “in order to at the time. Nearly three years later, in July 2014, Am- prosecute such offenses, however, it re- … bassador Williamson issued a report out- quires a level of evidence that we have not lining his findings.8 He referred to the ex- yet secured.”12 While Williamson, like Mar- 72. Our first-hand sources alone tremely challenging nature of the investi- ty, downplayed organ trafficking, it nev- have credibly implicated [these Dren- gation, echoing Del Ponte and Marty: the ertheless garnered the headlines. For ex- ica Group members] alongside Thaci events occurred years ago, there is little ample, the online media outlet EURACTIV and other members of his inner circle, physical evidence, many witnesses have be- ran this headline on July 29, the day the re- in having ordered – and in some cases come unavailable, others could not be lo- port was released: “KLA guerrillas harvest- personally overseen –assassinations, cated, and the climate of intimidation.9 ed murdered Serb’s organs, say EU investi- detentions, beatings and interroga- But the report continued as follows (em- gators.”13 tions in various parts of Kosovo and, phasis added): Even though SITF had enough evidence of particular interest to our work, in the to file an indictment in 2014, Williamson context of KLA-led operations on the Despite these difficulties, I am con- stated that, “In regard to those crimes for territory of Albania, between 1998 and vinced that SITF has conducted the which SIFT has prosecutable evidence, the 2000. most comprehensive investigation ever filing of an indictment will not occur un- done of crimes perpetrated in the pe- til the specialist court designated to hear Marty then elaborated on his findings of riod after the war ended in Kosovo in these cases is established—hopefully early organ trafficking (footnotes omitted, em- June 1999. As a result of this investiga- next year,” meaning early 2015.14 Opting for phasis added): tion, we believe that SIFT will be in a a “specialist court” was a critical decision in position to file an indictment against this saga, but Williamson’s prediction of ear- 156. The last and most conspicuous certain senior officials of the former ly 2015 turned out to be wildly optimistic. subset of captives in the post-conflict Kosovo Liberation Army. These indi- period, not least because its fate has viduals bear responsibility for a cam- Why a Specialist Court? been greatly sensationalised and wide- paign of persecution that was direct- ly misunderstood, comprises the cap- ed at the ethnic Serb, Roma, and oth- EULEX already had a fully functioning in- tives we regard as having been the er minority populations of Kosovo and ternational judicial system in Kosovo for at “victims of organised crime”. Among toward fellow Kosovo Albanians whom least five years which included: experienced this subset are a handful of persons they labeled either to be collaborators international investigators, prosecutors and whom we found were taken into cen- with the Serbs or, more commonly, to judges; court security; court facilities; ad- tral Albania to be murdered immedi- have simply been political opponents ministrative personnel; multi-lingual trans-

40 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org Upcoming LIVE VBA Programs

63rd Annual Mid-Year Meeting and Basic Skills Program MOVED to June 11th-12th at the Hilton Burlington Implicit bias, trial preparation, ECF, Employment law, environmental law, admin law, ethics & more!

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VBA Tech Show MOVED to September 23rd at the Hilton Burlington

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VBA Annual Meeting October 1st-2nd at Lake Morey Resort, Fairlee

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2019/2020 VBA Section and Division Chairs

Appellate Bridget Asay & Ben Battles Intellectual Property Andrew Manitsky Bankruptcy Nancy Geise & Don Hayes International Law & Practice Mark Oettinger Business Assoc. Tom Moody Juvenile Linda Reis & Sarah Star Collaborative Nanci Smith Labor & Employment Steve Ellis Consumer Jean Murray Lawyer Well-Being Samara Anderson & Micaela Tucker Criminal Katelyn Atwood Municipal Brian Monaghan Disability Marilyn Mahusky Paralegals Carie Tarte Dispute Resolution Richard Hecht & Neil Groberg Practice & Procedure Greg Weimer Diversity Alycia Sanders Probate & Trust Mark Langan & Bob Pratt Elder Law Glenn Jarrett Property Law/IPR-Realtors Jim Knapp & Benj Deppman Environmental Gerry Tarrant Solo & Small Firms Mike Caccavo Family Penny Benelli Tax Law & Accountants Will Baker Federal Practice Tim Doherty Veteran’s Katelyn Atwood Govt & Non-Profit Div. Jim Porter Women’s Division Samantha Lednicky Health Law/IPR-Doctors Drew Kervick &Elizabeth Wohl Worker’s Comp Keith Kasper Immigration Sidney Collier Young Lawyers Division Ben Traverse Insurance Paul Perkins lators; rules of evidence and procedure; a ing and governing the court. This finally oc- KSC, on a positive note, claimed to be fully witness protection program; penal facilities; curred in mid-2015, but only after intense ready to proceed with judicial proceedings

Kosovo and all other features of a workable court international pressure. As described by Bal- whenever the Prosecutor filed indictments. system. In addition, Kosovo was just about kan Insight on August 6, 2015: But more time passed with no indication to open its brand-new Palace of Justice when the indictments would be filed. where all judicial activities would henceforth The…Law…which was negotiated Then in December 2017, when many in take place. This new court facility, which had between the EU and Kosovo, was fi- Kosovo mistakenly believed that indict- been largely funded by the EU, could have nally passed this week by the Kosovo ments were imminent, the Association of been available for KLA trials. Parliament after months of bitter ar- KLA Veterans petitioned the Assembly to And EULEX had already prosecuted high guments, street protests, frenzied me- dissolve the new court because of its pur- profile perpetrators of war crimes and oth- dia speculation and delays caused by ported bias, targeting only Kosovo Albanian er serious offenses, including organ traffick- political opposition to the legislation KLA veterans and not any suspected Serbi- ing. Indeed, I was a member of the three- that will see former KLA guerrillas— an war criminals. As reported by the New judge panels that presided over the war who are seen as heroes of the libera- York Times on January 13, 2018: crimes trial of KLA soldier Ejup Kabashi tion struggle in Kosovo—put on trial.16 (2011) and the Medicus organ trafficking tri- Efforts by Kosovo to suspend a war al (2011-13) which gained worldwide atten- The new creation, the Kosovo Specialist crimes court set up to prosecute atroc- tion. Both cases resulted in convictions (fol- Chambers and Specialist Prosecutor’s Of- ities committed by ethnic Albanians lowed by complicated appellate proceed- fice (KSC and SPO), would be located out during their independence struggle ings.)15 There were several other examples of the country. The two entities were inde- are threatening relations with Western as well, both before and after the decision pendent, with the KSC constituting the judi- allies who backed Kosovo’s split from was made to create a specialist court. cial and administrative components and the Serbia, European and American offi- Nevertheless, the international commu- SPO constituting the traditional prosecuto- cials have warned. nity agreed with Williamson about the ne- rial function. In December, a group of law mak- cessity for a new court, primarily because of ers, mostly KLA veterans, tried to great concern for witness protection. There Setting up the Specialist Chambers rush through a vote in Parliament that is a clan mentality in Kosovo, and it was con- would suspend Kosovo’s law that reg- sidered just too dangerous to expect wit- At this point in mid-2015, the evolution of ulates the court. The vote never took nesses to testify in a Kosovo courtroom the new tribunal was only about six months place, but its sponsors claimed to have against the highest level of Kosovo war he- behind Williamson’s schedule of early 2015. the support of President Hashim Thaci, roes. The witnesses and their families could The timetable then began to deteriorate who was previously accused of leading be in great danger, and it was believed that markedly. The job of actually setting up the an organized crime network.17 many witnesses would simply refuse to tes- Chambers had to be tackled, and it became tify if the proceedings were conducted in a major bureaucratic undertaking that took The strategy to abrogate the court ulti- Kosovo. two full years. mately fizzled in the face of withering crit- I experienced this problem first-hand in The task required entering into a host icism from Kosovo’s international benefac- the war crimes case of Fatmir Limaj (one state agreement with the Netherlands; re- tors, including the US and the EU. Then of the persons named in the Marty Report) furbishing a large building in The Hague; in February 2018, David Schwendiman, and nine other KLA soldiers and command- hiring a whole new court staff including ad- the Chief Prosecutor, made a surprise an- ers (2011-12). On the eve of trial, the pros- ministrators, IT personnel, translators, secu- nouncement that, reluctantly, he would ecution’s key witness, who was in EULEX’s rity experts, and the like; recruiting and hir- have to leave his position. On March 22 he witness protection program, committed sui- ing a cadre of international judges and law gave a farewell address in which he offered cide by hanging himself in Germany where clerks; establishing rules of procedure and an explanation: “I did not resign--I was just he had gone to visit his brother. This se- evidence; developing a witness protection told by my government that my time was verely undermined the prosecution’s case, program; and so forth, all of which was time up.”18 and the defendants were ultimately acquit- consuming, labor intensive and expensive. He explained in detail the challenges he ted. And much of which was duplicative of EU- faced in conducting an extremely complex Security was clearly another important LEX’s judicial system in Kosovo. investigation (hundreds of thousands of concern in high-profile cases. During the David Schwendiman, a respected and in- documents, hundreds of witnesses), and at Limaj proceedings, for example, the court- ternationally experienced American pros- the end of his remarks he admonished the room was packed with his supporters as ecutor who succeeded Clint Williamson as international community to be patient: was the street outside the courthouse, and the head of SITF, was appointed as the first SWAT teams with AK47s were deployed in- Chief Prosecutor of the Special Prosecutor’s Donors who sign on to support these side and outside to maintain order. I had to Office in September 2016. But the investi- kinds of investigations and prosecu- go back and forth to court in an armored gation continued with no indictments, and tions must re-orient their thinking to vehicle. there was never an explanation about what ensure that political will does not wain Conducting future proceedings in a neu- happened to the indictment that could have and a loss of interest does not interfere tral country, with better witness protection been filed in 2014. in the short or long-term with the insti- and without similar security concerns, won The budget for the KSC and SPO from tutions created to do the work.19 the day. Arguably, this seemed to make June 15, 2016 to June 14, 2018 was a whop- good sense at the time, assuming the new ping £70,000,000.. (The value of a Euro as No indictments had been filed by the time court could be up and running quickly, al- compared to the US Dollar fluctuated dur- he left, and no successor had been named. though it was not to be. ing this period from a low of about $1.04 to Regardless, he deserves credit for his dedi- So the EU, with the support of the US, a high of about $1.25). The Chambers finally cated service. decided to create an entirely new court. But opened for business in July 2017. Although I expressed my strong skepticism about first, the Kosovo Assembly had to pass con- it was now about two and a half years be- the new court because of the inordinate stitutional amendments and a law establish- hind Williamson’s proposed schedule, the delay in an article for Balkan Insight, titled

42 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org “Ghost Court,” just before Schwendiman Kosovo left office.20 The essence of my argument, as published, was as follows:

… [T]he new court’s evolution stands as a stark example of international crim- inal justice in slow motion--good inten- tions gone awry and the rule of law stuck in quicksand. Today, the court has yet to receive any indictments to adjudicate, despite a multi-year birth- ing process and a massive budget… The tragedy of delay is two-fold. First, alleged perpetrators of heinous crimes have been allowed to go about their lives with impunity. But more importantly, and I can’t em- phasize this point enough, the victims and their families have been forced to twist in the wind of uncertainty far too long, waiting for justice to be served. And the 1600 missing persons, many of whose photos are posted outside the Parliament building, have not been vin- dicated for their suffering. Even if the court started adjudicating cases tomor- row, the years of delay, uncertainty and anguish could never be recouped. Staying the course with EULEX, which had a fully functioning justice component, would have been a far bet- ter choice than starting anew. True, EU- LEX had its problems, but these prob- lems could have been ameliorated, if not solved, if a concerted effort had time passed with no charges being laid. cation would be necessary. been made to do so. However, starting in December 2018, a The nineteen judges appointed to the ………. flurry of activity emanated from the Special Roster of International Judges three years Accountability for crimes by mem- Prosecutor’s Office, with its staff of about ago in February 2017, all Europeans except bers of the KLA, and justice for the vic- 60 people. According to reports, over one for one American (three of whom have since tims and their families, are important hundred former KLA soldiers and command- resigned), have been largely out of public goals in international law that cannot ers were interviewed, either as suspects or view. They have been waiting in their home be forgotten by the passage of time. as potential witnesses, and these interviews countries for the criminal cases to be initiat- But the passage of time makes it more continued throughout 2019. Among those ed and the trials to begin. and more difficult to achieve these summoned were the prime minister, who While waiting for indictments, the Cham- goals as we are seeing. Witnesses die promptly resigned, and the speaker of the bers have kept themselves busy by hosting or disappear, witnesses forget, witness- assembly, both of whom were identified in international organizations, meeting with es are threatened or killed, family mem- the Marty report. However, there has been journalists and students, presenting training bers die, perpetrators die or disappear, no mention of President Thaci being inter- programs and performing other activities in key personnel resign, evidence is lost, viewed although he was identified as the preparation for the Chambers’ primary and stories change… mastermind. This accelerated pace sug- essential function, conducting judicial pro- If indictments had been filed with gested that the SPO could be getting close ceedings whenever that might happen. EULEX in 2014 when Williamson had to deciding whether to file indictments and The Chambers have also engaged in out- enough evidence to do so, the cases against whom. reach efforts in an attempt to persuade would probably be nearing completion All the while, the Specialist Chambers skeptical Kosovo Albanians of the legitima- by now. Instead, the victims and their continued to expand despite the absence of cy and necessity of the tribunal, but with families continue to wait and hope for any judicial activity. They moved into a new, questionable success. A recent report by justice to be served.21 high tech building in The Hague, generously Aidan Hehir, an expert in transitional justice paid for by Norway in the amount of NOK from Westminster University in the UK with Recent Developments 80,000,000 (about $8,700,000), with a staff whom I have collaborated, had this to say: of around 150 from many different countries Following Schwendiman’s departure, an- throughout Europe and beyond. And there At present the KSC [the Kosovo Spe- other experienced and respected American was another budget allocation from the EU cialist Chambers] suffers from both a prosecutor, Jack Smith, was hired and sworn for the period June 15, 2018 to June 14, lack of domestic support—particular- in about six months later on September 11, 2020 in the amount of £86,000,000. Thus, ly among Kosovo’s Albanian commu- 2018. Again, expectations ran high that in- the total budget since June 15, 2016 was a nity—as well as very low expectations dictments would soon be filed, but Smith staggering £156,000,000, with only a short as to its ability to achieve its aims. The needed time to get up to speed and more time to go before yet another budget allo- court is seen by the majority of the www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 43 Kosovo Albanian community as an un- glacial process. In the immortal words of and Washington, DC. He can be reached at warranted foreign imposition, and un- Benjamin Franklin, “lost time is never found [email protected].

Kosovo fairly focused on Albanians. Within this again.” Nor will the filing at long last pro- ______1 community, there remains a clear lack vide an adequate explanation for why the The Vermont Bar Journal, Spring 2017 can be found at www.vtbar.org under For Attorneys, of understanding as to the KSC’s man- perpetrators of horrific crimes have been VBA Publications, link: https://www.vtbar.org/ date and working methods, there is lit- permitted to remain at large in plain view UserFiles/files/VBASpringJournal-lr.pdf. tle acceptance that the court is neces- for so long. And, importantly, a lengthy 2 Balkan Insight, “Kosovo Organ-Trafficking: sary, and the very idea that KLA fighters delay such as this can only undermine the How the Claims Were Exposed,” September 4, 22 2015. committed crimes is widely disputed. credibility of international justice and the 3 Madame Prosecutor. Confrontations with Hu- public’s faith therein. manity’s Worst Criminals and the Culture of Impu- On December 20, 2019, the Chambers As of April 2020, it has been nearly twelve nity, Carla Del Ponte, pp. 277-78. began publicly recruiting ten additional years since Carla Del Ponte publicly set the 4 Id. 5 judges for the Roster of International Judg- wheels of this endeavor in motion in 2008; The Guardian, “Former War Crimes Prosecutor Alleges Kosovan Army Harvested Organs from es. The application deadline was March 17, nine years since the Council of Europe ad- Serb Prisoners,” by Ian Traynor, editor, https:// 2020, with interviews to follow soon thereaf- opted the report of Dick Marty in January www.theguardian.com/world/2008/apr/12/war- ter. Although the Prosecutor’s Office close- 2011; almost six years since Ambassador crimes.kosovo. 6 ly guarded its activities, this was another Williamson determined in his benchmark re- Inhuman Treatment of People an Illicit Traffick- ing in Human Organs in Kosovo, Dr. Dick Marty, strong signal that indictments could be filed port that he had enough evidence to file an Parliamentary Assembly, December 12, 2010, full in the not too distant future. Since the judg- indictment in July 2014; almost five years report at: http://www.assembly.coe.int/Commit- es presently on the roster had been largely since the Kosovo Assembly passed the law teeDocs/2010/ajdoc462010prov.pdf. idle, there would be no need for more judg- establishing the Chambers and Prosecutor’s 7 https://www.theguardian.com/world/2010/ es unless the Chambers had reason to be- Office; nearly three years since the Cham- dec/14/kosovo-prime-minister-llike-mafia-boss 8 Statement of the Chief Prosecutor of the Spe- lieve that indictments would soon be filed. bers opened for business; and a year and a cial Investigative Task Force, Williamson at Brus- But past predictions had proven woefully half since the latest prosecutor was appoint- sels, 29 July 2014, http://www.hlc-rdc.org/wp- wrong. ed. All at an astronomical expenditure of EU content/uploads/2014/07/Press_release_EN.pdf 9 As it turned out, this prediction actually funds. Id. at ¶ 1. 10 Id. at ¶s 1-2. proved to be accurate. On February 24, the While I do not wish to minimize the com- 11 Id. at ¶ 3. Prosecutor finally notified the President of plexity of the investigation, or the profes- 12 Id. the Chambers of his intent to initiate judi- sionalism and dedication of the persons in- 13 https://www.euractiv.com/section/enlarge- cial proceedings and requested that a judge volved, the immutable fact is that process ment/news/kla-guerrillas-harvested-murdered- be appointed to review the indictments for has simply taken far too long. And while it’s serbs-organs-say-eu-investigators/ 14 Statement of the Chief Prosecutor of the Spe- factual and legal sufficiency pursuant to the easy to be critical in hindsight, it might well cial Investigative Task Force, at ¶ 4. code of criminal procedure. If satisfied, the have been better to solve the problems with 15 As described in my prior article. The Vermont judge would “confirm” the indictments and the existing judicial mechanism of EULEX in Bar Journal, Spring 2017 can be found at www. refer the cases to the trial docket. If not, the which event the perpetrators likely would vtbar.org under For Attorneys, VBA Publica- tions, link: https://www.vtbar.org/UserFiles/files/ indictments would be dismissed. As of this have been held to account by now, and the VBASpringJournal-lr.pdf. writing there has been no word as the sta- victims and loved ones would have received 16 “Kosovo’s New War Court: How Will it Work?,” tus of this judicial review or when it might be a well-deserved measure of justice. But the Marija Ristic, Balkan Insight, August 6, 2015, completed. Unfortunately, fate also inter- long wait persists. Unfortunately, as we all https://balkaninsight.com/2015/08/06/how-will- vened, making it likely that the review and know, justice delayed is justice denied. special-kosovo-court-work-08-05-2015/. 17 “World’s Eyes on Kosovo Amid Push to Halt any ensuing trials will be further delayed be- ______War Crimes Court,” New York Times, 1/13/18 cause of Covid-19 which has swept through Before his appointment to the Vermont https://www.nytimes.com/2018/01/13/world/eu- the Netherlands and the rest of Europe. trial bench in 1984, Judge Pineles served rope/kosovo-war-crimes-court.html. as an Assistant Attorney General, Deputy 18 Speech by Specialist Prosecutor David Schwen- diman at the Grotius center of Leiden University in Conclusion Health Commissioner, Commissioner of La- The Hague, Thursday 22 March 2018: Reflections bor and Industry, and Legal Counsel to Gov- on My Time as Specialist Prosecutor and Chal- Even with the filing of indictments, this ernor Richard Snelling. He is a graduate of lenges Ahead, https://www.scp-ks.org/sites/de- cannot in any way mitigate the endless pain Brown University, Boston University School fault/files/public/content/specialist_prosecutor_ endured by the victims and their loved ones of Law and Harvard Kennedy School. He david_schwendiman_grotius_centre_speech_22_ march_2018_0.pdf, at p.5. occasioned by the inordinate delay in this divides his time between Stowe, Vermont 19 Id. at 24. 20 “’Ghost Court’ Delays Justice for Kosovo War Victims,” Dean Pineles, Balkan Insight, March 19, 2018; https://balkaninsight.com/2018/03/21/ ghost-court-delays-justice-for-kosovo-war-vic- tims-03-19-2018/ 21 Id. 22 Balkan Investigative Reporting Network, “Step Towards Justice or Potential Timebomb?” by Aid- an Hehir, January 2019; https://balkaninsight. com/wp-content/uploads/2019/01/step-towards- justice-or-potential-timebomb.pdf.

44 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org IN MEMORIAM

David Burrows Stackpole English on French taxation. Jason was an avid Jacobs, McClintock & Scanlon and formed traveler and enjoyed tennis, hiking and kaya- his own firm a decade ago. He practiced in David Burrows Stackpole, born Octo- king. A member of the Shambhala communi- the fields of estate planning, real estate and ber 19,1933 died peacefully on February ty since the 1980’s, Jason became a student business law and spent many years as legal 16, 2020 at the age of 86, surrounded by of Chogyam Trungpa Rinpoche and prac- counsel for Southwestern Vermont Health his loving family. David grew up in John- ticed Tibetan Buddhism, and taught medita- Care. Tom was passionate about economic son and graduated from People’s Academy tion programs for the rest of his life. Jason is and community stability in the Town of Ben- in Morrisville. He attended Dartmouth Col- survived by his daughters, stepsons, siblings, nington and served on the Select Board, the lege and Cornell Law School. Upon graduat- nieces and nephews and his loving compan- School Board and in leadership positions on ing he returned to Vermont where he clerked ion for the past three years, Andrea Doukas, the boards of many nonprofit organizations. in Lamoille County until he passed the Ver- who provided great care and comfort during As an avid cyclist his most memorable adven- mont bar exam. In 1964 David was the first his final months. tures included riding in the L’etape du Tour attorney to set up private practice in Stowe, in France, the Sacramento double century where he settled and raised his family. From Harvey Denison Carter, Jr. ride, mountain biking in Utah and biking the 1968-1978 he partnered with his longtime length of Vermont several times with friends. friend, Tom Amidon and in 1993, he formed Harvey Denison Carter, Jr. passed peace- In earlier years he enjoyed the triathlon circuit the current Stackpole & French Law Offices fully at the McClure Miller Respite House on with his family at the finish line proudly cheer- with Ed French. David served the VBA on var- March 21, 2020, after a long battle with Al- ing him on. Tom generally enjoyed being out- ious committees, including the Profession- zheimer’s Disease. Harvey was born in New doors with his family and friends, particular- al Conduct Committee. He served as States York City, on November 2, 1938, and was ly his beloved wife of 52 years, Lee, and his Attorney for Lamoille County, Trustee of the raised in Scarsdale, NY. Harvey was a gradu- grandchildren. He is survived by his wife, their Village of Stowe and was the Moderator of ate of The Choate School, Williams College two daughters and their families. Stowe Town Meeting for 20 years. He was a and the Duke University School of Law. Be- past President of Stowe Rotary Club, served fore establishing a law practice in Bennington Carl A. Yirka as a founding director and officer of Lamoille with R. Marshall Witten, Harvey served as an County Mental Health, was a director of Assistant U.S. Attorney in Manhattan. He rep- Carl A. Yirka, 68, passed away at his home Lamoille Family Center, and former chair of resented the Town of Pownal as a Republican in Strafford on April 4, 2020, almost two years the Johnson State College Foundation. He in the 1970 legislative session that passed Act after being diagnosed with neuroendocrine enjoyed years of serving on the Mount Man- 250 and was instrumental in shaping the fi- tumor (NET), a rare aggressive cancer. Carl sfield Ski Patrol. He was involved in commu- nal version of Vermont’s iconic environmental was born on February 28, 1952 in Cleveland, nity theater and was instrumental in the birth law. With his good friend and fellow legisla- Ohio, to Croatian parents who had recent- of the Farm to School movement. He became tor Thomas H. Foster, Harvey organized the ly arrived as refugees fleeing post-WWII Yu- chairman of the board of Green Mountain Mt. Anthony Preservation Society in Benning- goslavia. Carl attended Columbia University Farm to School, Inc., a non-profit committed ton, and successfully conserved the region’s where he majored in English, then attended to delivering farm sourced foods to schools signature mountain. Harvey returned to serve library school at Case Western Reserve Uni- throughout northern Vermont. David retired in Montpelier in 1984, as a Democratic Sena- versity, School of Library Science and moved in 2015, but never stopped giving wise coun- tor from Bennington County. In 1988, Harvey to Indiana, where he attended law school. sel. David leaves two daughters, his sister and joined his beloved wife, Mary, as she pursued After obtaining his JD, Carl and family went their families. her graduate degree at Cornell University. Af- back to New York City, where he passed his ter teaching environmental and land use law NY state bar and became associate direc- John C. (Jason) Newman for many years at Williams College, Univer- tor at New York Law School Library. He later sity of Vermont and Vermont Law School, he came to Vermont and served for almost thir- John C. (Jason) Newman, 69, passed away was hired by Cornell to teach graduate cours- ty years as the Director of VLS’s Julien and peacefully at his home in White River Junc- es on historic preservation law. Harvey was a Virginia Cornell Library. From 1997 to 2005, tion, Vermont on March 15, 2020. Jason was willing and hard-working partner on Mary’s Carl was project director of the VLS-Petroza- born in Ohio, living in various places and in- sheep farm as he continued a limited law vodsk State University Law-Faculty Partner- ternationally before settling in Washington, practice as long as health allowed. In 2009, ship where he and his VLS colleagues were D.C. He graduated from Ohio University and Harvey was diagnosed with Alzheimer’s dis- charged with developing a legal clinic, an en- obtained a law degree and master’s in taxa- ease. He kept his good cheer and gregari- vironmental law center, and a law library at tion from Georgetown University. He moved ous ways, but struggled with day-to-day life. Petrozavodsk State University in Karelia, Rus- to Paris, France in 1979, and was admitted Harvey is survived by his wife, Mary Stannard sia. In 2005, Carl became a Fulbright Scholar to the French bar in 1982 as a Conseil Ju- Carter, two sons, his grandchildren, his step- in Croatia, teaching U.S. Constitutional Law ridique. He returned to Washington in 1984 daughters and their families. at the University of Rijeka Faculty of Law. Carl and moved to Rutland, Vermont in 1995. Thomas Jacobs, 74, died on April 1, 2020, and his second wife, Micki Colbeck, lived in He practiced law from the time he entered after being stricken while bike riding. Born in and visited Croatia many times over their 22 law school, first in Washington with the An- Vermont, Tom graduated from UVM and re- years together. He enjoyed bike riding, danc- titrust Division of the Department of Justice, ceived his JD from Suffolk Law School in Bos- ing, reading and collecting books and gath- as a public defender and a tax attorney; in ton. He has spent several years on the Ben- ering and studying the stories of his family’s Paris, France as a tax attorney; and, finally, in nington Select Board, most recently serving struggles through WWII in Eastern Europe. Washington and Rutland, Vermont as an es- as Chair. He was instrumental in moving the Carl is survived by his wife, Micki, two chil- tate and trust attorney. For over 30 years, $54 million Putnam Block project from an idea dren, two stepchildren and their families. he maintained the French Tax and Business to a ground-breaking in August of 2019. For Guide, one of the most successful guides in more than 20 years, he was with the law firm www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2020 45 CLASSIFIEDS

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46 THE VERMONT BAR JOURNAL • SPRING 2020 www.vtbar.org