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Rule 15 – Appearance and Withdrawal of Attorneys

May 14, 2021 | Family Law, Vermont

(a)Appearance: In General. This rule applies to all proceedings under Rules 2, 3, 4.0-4.3,, and 9.

(1)Entry; Effect.

(A) Upon the entry of an appearance in accordance with paragraph (2) or (4) of this subdivision, or with subdivision (g), or the entry of a limited appearance under subdivision (h), the name of the attorney appearing or the words “pro se,” as appropriate, shall be entered on the docket. If the representation of any party changes during the pendency of the action, the name of the new attorney or the words “pro se,” as appropriate, shall be substituted on the docket for the previous entry.
(B) Entry of an appearance by an attorney or a party pro se in accordance with this rule shall be deemed a designation by the party of the person upon whom all service is to be made and to whom all notices are to be sent by the court or other parties, except in cases in which by law the notice is required to be given to the party personally. The designation shall remain in effect until an attorney who has appeared withdraws pursuant to subdivision (f) or until an attorney enters an appearance for a party who had previously appeared pro se.
(2)Form; Service. Except as provided in a limited appearance under subdivision (h), an attorney’s signature to a pleading or motion shall constitute an appearance. Otherwise an attorney who wishes to participate in any action must appear in open court, or file notice in writing with the clerk, which shall be served pursuant to Civil Rule 5. Appearances entered in open court shall be confirmed in writing and served within 7 days. An appearance, whether by pleading or motion or by formal written appearance, shall be signed by an attorney in the attorney’s individual name and shall state the attorney’s office address.
(3)Multiple Parties. In entering appearances when there are multiple parties, attorneys shall specify, and the clerk shall enter upon the docket, for whom they appear. An appearance for the plaintiffs or the defendants, as the case may be, shall be deemed to be an appearance for all, unless stated to be for one or more only, and so entered upon the docket by the clerk.
(4)Parties Appearing Pro Se. A party may make an initial appearance pro se by signing a pleading or motion, by appearing in open court if no pleading or motion is required, or by filing a signed notice with the clerk, which shall be served pursuant to Civil Rule 5. Initial appearances entered in open court shall be confirmed in writing and served within 7 days. An initial pro se appearance, whether by pleading or formal written appearance, shall state the party’s current mailing address and telephone number. A pro se party shall advise the clerk of any change of address or telephone number. When a party appears pro se, the clerk shall provide that party information concerning the responsibilities of a pro se party and a form upon which the party may notify the clerk of any change of address or telephone number.
(5)Continuances to Secure Counsel. Except as provided in Rule 9(h), when no attorney has entered an appearance for a party by the date of a scheduled hearing, the hearing shall not be continued to enable that party to secure counsel unless that party has not had reasonable opportunity to secure counsel, or unless an appropriate order for temporary relief is entered.
(b)Same: Divorce, Parentage, and Other Actions under Rule 4.0–4.3,. The appearance of an attorney for a party in a divorce, parentage, or other action under Rule 4.0–4.3, shall constitute the attorney’s appearance for that party in all related matters in the Family Court, except when otherwise provided in subdivisions (c), and (d), and in a limited appearance under subdivision (h).
(c)Same: Abuse Prevention Actions.

(1) An attorney who has entered an appearance for any party in an abuse prevention action shall not be obliged to appear in a subsequently filed divorce, parentage, or other action under Rule 4.0–4.3, unless the final hearing on the abuse prevention order is consolidated with a hearing for temporary relief in the action under those rules. In the event of such a consolidation, the attorney must represent the party for all purposes at that hearing. After entry of the final order in the abuse prevention action, the attorney shall not be obliged to undertake further representation of the party in the action under Rule 4.0–4.3, unless the attorney enters a separate appearance in that action.
(2) Except as may be otherwise agreed or ordered pursuant to a limited appearance under subdivision (h), an attorney who has entered an appearance for any party in an abuse prevention action shall be obliged to appear in a previously filed divorce, parentage, or other action under Rule 4.0–4.3, if the relief sought in the abuse prevention action would have the effect of modifying an order previously entered in the action under those rules.
(3) Except as may be otherwise agreed or ordered pursuant to a limited appearance under subdivision (h), the appearance of an attorney for any party in a divorce, parentage, or other action under Rule 4.0–4.3, shall be deemed an appearance for that party in an abuse prevention action subsequently filed pro se by that party during the pendency of the original action. When an abuse prevention action is filed pro se, the clerk, subsequent to the issuance of any order, shall notify all counsel of record and parties in any pending divorce, parentage, or other action under Rule 4.0–4.3, between the parties to the abuse prevention action.
(d)Same: Child Support Hearings. Except as may be otherwise agreed or ordered pursuant to a limited appearance under subdivision (h), an attorney who has entered an appearance for any party in a divorce, parentage, or other action under Rule 4.0–4.3, shall participate in all child support hearings and shall comply with all provisions for the exchange and filing of all required financial documents. In the discretion of the judge or magistrate, and for good cause shown, an attorney may be excused from attending a child support hearing, provided that not less than 7 days prior to the scheduled hearing date, the attorney files (1) all financial affidavits and other documentation required by statute and these rules; and (2) a joint waiver of representation, signed by attorney and client and setting forth that the client has affirmatively requested to appear pro se at the child support hearing and understands the nature and scope of the hearing; and further provided that parental rights and responsibilities are the subject of a court order or an existing written stipulation on file with the court.
(e)Attorneys Not Admitted to Practice in Vermont. Any member in good standing of the bar of any other state or the District of Columbia who has filed a pro hac vice licensing statement form with the Court Administrator and who has paid the required fee, in accordance with Administrative Order No. 41, § 16, may, in the discretion of the court on motion by a member of the bar of this state who is actively associated with the attorney in a particular action, be admitted to practice in that action. The motion shall designate which attorney will serve as lead counsel. The court may at any time for good cause revoke such admission. An attorney so admitted to practice in a particular action shall at all times be associated in such action with a member of the bar of this state, upon whom all process, notices and other papers shall be served and who shall sign all papers filed with the court and whose attendance may be required by the court.
(f)Withdrawal.

(1)In General. Except as may be otherwise agreed or ordered pursuant to a limited appearance under subdivision (h):

(A)Actions under Rules 4.0–4.3, and Rule 9. In any action under Rules 4.0–4.3, or Rule 9, the appearance of an attorney shall be deemed to be withdrawn upon the entry of final judgment and the expiration of the time for appeal therefrom. Prior to the expiration of the time for appeal from a final judgment in such an action, an attorney who has entered an appearance may withdraw only with leave of court granted as provided in paragraph (2) or (3) of this subdivision.
(B)Other Actions. In any other action, an attorney who has entered an appearance may withdraw only with leave of court granted as provided in paragraph (2) or (3) of this subdivision.
(2)Leave to Withdraw without Hearing. The court shall grant leave to withdraw on motion without notice and hearing, (A) after entry of final judgment and the expiration of the time for appeal therefrom in any action where withdrawal is not automatic under subparagraph (1)(A) of this subdivision; or (B), except in any action where a final hearing has been scheduled, when a represented party files a written pro se appearance pursuant to paragraph (4) of subdivision (a) or another attorney enters an appearance for such a party. The court may grant appointed counsel leave to withdraw on motion without notice and hearing only when the ground of withdrawal is a conflict of interest.
(3)Leave to Withdraw after Hearing. In any case where withdrawal is not automatic under subparagraph (1)(A) of this subdivision and leave to withdraw may not be granted under paragraph (2), the court shall grant leave to withdraw only on motion, after notice and hearing, for good cause shown, and on such terms as the court may order.
(4)Motion and Notice. A motion to withdraw under paragraph (3) of this subdivision shall include the party’s last known address. No motion to withdraw under paragraph (3) shall be considered by the court until the party has been given notice of the motion and the date and time of hearing thereon by the clerk. The only exceptions to this requirement shall be (A) when the attorney includes in the motion an affidavit that after diligent search the attorney cannot determine the present address of the party, or (B) when other counsel has entered an appearance for the party.
(g)Same: Notification of Party. When an attorney has been granted leave to withdraw an appearance pursuant to paragraph (3) of subdivision (f) or a limited appearance pursuant to paragraph (3) of subdivision (h), the clerk shall cause notice of the withdrawal to be served upon the party forthwith in the manner provided in Civil Rule 5. The notice shall inform the party that unless an attorney enters an appearance on behalf of the party within 14 days after service of the notice, the party will be deemed to have entered a pro se appearance. If no appearance by attorney is entered within 14 days, the clerk shall send the party written notification of the party’s pro se status and shall serve that notification upon all other parties pursuant to Civil Rule 5. The notification to the party shall be accompanied by the material required by paragraph (4) of subdivision (a) to be sent to a party making an initial appearance pro se.
(h)Limited Appearance.

(1) Except in a proceeding under Rule 2 or 3 of these rules, an attorney acting pursuant to an agreement with a client for limited representation that complies with the Vermont Rules of Professional Conduct may enter an appearance limited to one or more of the following purposes on behalf of a client who is pro se and who has entered, or will enter, an initial appearance in accordance with paragraph (4) of subdivision (a) or pursuant to subdivision (g):

(A) Filing a complaint or other pleading.
(B) Conducting one or more specific discovery procedures.
(C) Participating in a case management or status conference, an alternative dispute resolution or parent coordination proceeding, or a proceeding before a property or visitation master.
(D) Acting as counsel for a particular hearing or court event.
(E) Filing a notice of appeal from a decision of a family court magistrate or judge and taking any subsequent actions concerning the record, briefing, or argument in connection with an appeal.
(F) With leave of court, for a specific issue or a specific portion of a hearing.
(2) An attorney who wishes to enter a limited appearance shall do so by filing with the clerk and serving pursuant to Civil Rule 5 a written notice of limited appearance as soon as practicable prior to commencement of the appearance. The purpose and scope of the appearance shall be specifically described in the notice, which shall represent that the client is pro se and has entered, or will forthwith enter, an initial appearance. The attorney’s name and a brief statement of the purpose of the limited appearance shall be entered upon the docket. The notice and all actions taken pursuant to it shall be subject to the obligations of Civil Rule 11.
(3) An attorney who has entered a limited appearance shall be granted leave to withdraw on motion without notice and hearing pursuant to paragraph (2) of subdivision (f) when the purpose for which the appearance was entered has been accomplished. An attorney who seeks to withdraw before that purpose has been accomplished may do so only on motion and notice, for good cause and on terms, as provided in paragraphs (3) and (4) of subdivision (f).
(4) Every paper required by Civil Rule 5 to be served upon a party’s attorney that is to be served after entry of a limited appearance shall be served upon the party and upon the attorney entering that appearance unless the attorney has been granted leave to withdraw pursuant to paragraph (3) of this subdivision.
(i)Attorney License Number; eCabinet Registration Number. Any document that constitutes a first appearance of an attorney shall contain, in addition to the name of the appearing attorney, the eCabinet registration number assigned to that attorney on registering an e-mail address pursuant to Rule 3 of the 2010 Vermont Rules for Electronic Filing.

Vt. R. Fam. Proc. 15

Added June 27, 1996, eff. Sept. 1, 1996; amended March 15, 2006, eff. June 30, 2006; amended Dec. 10, 2009, eff. Feb. 12, 2010; Feb. 6, 2013 , eff. April 8, 2013; July 20, 2015, eff. Sept. 21, 2015; Aug. 25, 2016, eff. Dec. 5, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018; amended Sept. 5, 2018, eff. Nov. 5, 2018; amended Dec. 10, 2019, eff. March 2, 2020.

Reporter’s Notes-2020 Amendment

Rule 15(i) is amended to clarify that it cross references the 2010 Vermont Rules for Electronic filing.

Reporter’s Notes-2018 Amendment

Rule 15 is amended to change its 5- and 15-day time periods to 7 and 14 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to simultaneous amendments of V.R.F.P. 1.

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

Reporter’s Notes-2016 Amendment

Y.R.F.P. 15(a)-(d) and (f) are amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0–4.3. See Reporter’s Notes to those rules.

Reporter’s Notes-2015 Amendment

Rule 15(f)(l)(A) is amended to make applicable to relief-fromabuse actions under Rule 9 the provision that an attorney is deemed to have withdrawn after the time for appeal of a final judgment in the proceeding has run. The amendment is intended to make clear that the automatic withdrawal provision of the rule is to be uniformly applied in relief-from-abuse cases in all units of the Family Division.

Reporter’s Notes-2010 Amendment

Rule 15 is amended to permit a lawyer acting pursuant to a limited representation agreement with a pro se client to enter a limited appearance in the Family Court in certain specific situations. The principal change to affect this purpose is the addition of Rule 15(h), which is adapted from V.R.C.P. 79.1(h). That rule was adopted effective April 14, 2006, for a two year period, extended to April 10, 2009, by order of March 13, 2008, and made permanent effective July 6, 2009.

At the direction of the Supreme Court, the Advisory Committee on Rules of Civil Procedure inquired about use of V.R.C.P. 79.1(h) and, with the assistance of the Vermont Bar Association, conducted a survey of practice under it. While the survey reflected relatively little use of limited appearance, a significant number of lawyers who used the procedure found it helpful, and there have been no reports of problems in its use. The rule has proven effective in achieving its original purposes of providing assistance of lawyers to courts and litigants at critical stages in trials or other proceedings and encouraging lawyers to take on pro bono representation. See Reporter’s Notes to 2006 amendment of V.R.C.P. 79.1. It may be anticipated that greater familiarity with the rule and growing interest at the bar in providing pro bono representation will lead to increased use of the unbundling procedure. Accordingly, the Civil Rules Committee recommended that V.R.C.P. 79.1(h) as adopted be made permanent. Given the great and increasing numbers of pro se litigants in Family Court, the use of the limited appearance procedure there is potentially of even greater importance.

For a general explanation of the rationale and operation of V.R.F.P. 15(h), see Reporter’s Notes to 2006 amendment of V.R.C.P. 79.1. V.R.F.P. 15(h)(1) departs from V.R.C.P. 79.1(h)(1) in certain respects that reflect differences in Family Court practice. The unbundling procedure is not available in proceedings under V.R.F.P. 2 and 3, given the special requirements of CHINS and TPR proceedings. The client appearance language in the last clause of paragraph (1) is tailored to the requirements of V.R.F.P. 15(a)(4) and (g). The provision of V.R.C.P. 79.1(h)(1)(B) for filing or arguing specific motions is not carried forward because essentially duplicated by V.R.F.P. 15(h)(1)(D), discussed below. V.R.F.P. 15(h)(1)(C) makes clear that limited representation is available in specific pretrial proceedings in Family Court. The words “court event” have been added to V.R.F.P. 15(h)(1)(D), both to reflect more accurately the broader nature of Family Court proceedings and to make clear that the representation is limited in terms of particular matters, rather than by time. V.R.F.P. 15(h)(1)(E) makes clear that limited appellate representation includes appeals from both a magistrate and a judge and can include subsequent steps in the appeal. V.R.F.P. 15(h)(1)(F), like V.R.C.P. 79.1(h)(1)(G), is intended to affirm the inherent control of the judge over the course of a hearing. See Reporter’s Notes to 2006 amendment of V.R.C.P. 79.1.

V.R.F.P. 15(h)(2)-(4) are identical to V.R.C.P. 79.1(h)(2)- (4), with minor variations to fit the framework of other provisions of Rule 15.

Amendments to V.R.F.P. 15(a)(1) and (2), (b), (c)(2) and (3), and (d)-(g) make clear the effect of a limited appearance under subdivision (h) on the matters covered by those provisions, and paragraph (c)(2) has been rewritten for clarity.