Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Vermont |
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(United States)
Contributors Updated 10 Sep 2021 |
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| Is the ACP recognized in your jurisdiction? | Yes. See Vermont Rules of Evidence, Rule 502. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Not applicable. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No. Government authorities may not require disclosure except in cases of waiver or if some other exception applies. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Vermont has rejected the control group test in favor of the subject matter test (the Upjohn approach). See Baisley v. Missisquoi Cemetery Ass'n, 167 Vt. 473, 483, 708 A.2d 924, 930 (1998) (explaining that “[t]he rule was amended to correspond with the new statute 12. V.S.A. § 1613 …. Although the rule is intended to produce the same result as the statute, the drafting is taken from Rule 502(a)(2) of the Uniform Rules of Evidence, which was modified in 1986 to ‘bring the rule into conformity with Upjohn Co. v. United States.’”). V. R. Evid., Rule 502(a):
12 V.S.A. § 1613: Communications otherwise privileged under Rule 502 of the Vermont Rules of Evidence are privileged with respect to a corporation only if the representative client is a member of the control group of the corporation, acting in his or her official capacity. However, if the communications are with a representative client who is not a member of the control group, such communications are privileged only to the extent necessary to effectuate legal representation of the corporation. For purposes of this section, “control group” means:
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| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No. As with outside counsel, in-house counsel’s communications with those outside the control group must be “necessary to effectuate legal representation of the corporation.” Vt. R. Evid., Rule 502(a)(2). Communications with those within the control group must be “made for the purpose of facilitating the rendition of professional legal services to the client.” Vt. R. Evid., Rule 502(b). However, these questions are particularly difficult in cases with in-house counsel. Courts may look to “the reasonable expectations” of the putative client in determining “whether the client sought the application of an attorney’s skill and training.” See Carneilli v. State, No. 396-6-14 Wncv, 2015 WL 5176771, at *2 (July 7, 2015). |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Not applicable. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Not applicable. |
| Is the common interest doctrine recognized in your jurisdiction? | Yes |
| How is the doctrine articulated in your jurisdiction? | Vt. R. Evid., Rule 502(b): A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client … (3) by him or his representative or his lawyer, or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein… |
| Must a common interest agreement be in writing? | No. See, e.g., Munson Earth Moving Corp v. City of South Burlington, No. S0805-08 CnC, 2009 WL 8019258 (March 30, 2009). |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Yes. Vermont Rules of Professional Conduct, Rule 1.8(f): A lawyer shall not accept compensation for representing a client from one other than the client unless:
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| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes.
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| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Vt. R. Evid., Rule 502(d)(1): There is no privilege under this rule: …If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud… Work Product Doctrine/Litigation Privilege (a doctrine that protects materials prepared in anticipation of litigation or for trial) |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Vermont Rules of Civil Procedure, Rule 24(b)(4). |
| What are the elements of the protection in your jurisdiction? | To be protected under Vt. R. Civ. Pro. 24(b)(4), it must be:
The party seeking discovery has the burden of showing “substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. |
| Does your jurisdiction recognize an accountant-client privilege? | No. Watson v. Dimke, 178 Vt. 504 ¶ 4 (2005). |
| Does your jurisdiction recognize a mediation privilege? | Yes. Vt. R. Civ. Pro. Rule 16.3(c)(2)(e): All written or oral communications made in connection with or during a mediation proceeding conducted under this rule are governed by chapter 194 of Title 12 of the Vermont Statutes Annotated. Vt. R. Evid., Rule 501(b): This subdivision applies to information that is protected by a statutory privilege and which… (3) was communicated to a mediator, factfinder, or arbitrator during a labor dispute or negotiation. The… mediator, factfinder, or arbitrator who holds the information is presumed to have the authority to claim the privilege on behalf of the person privileged. Unless the statute provides to the contrary, the privilege does not extend to the original information, documents or records when sought from original sources. No privilege exists in actions involving perjury, false statements, fraud in a return or report, or another failure to comply with the statute, rule or order in question. Rules 510 through 512 shall apply to privileges covered by this subdivision. 12 V.S.A. § 5714: (a) A mediation communication is privileged and is not subject to discovery or admissible in evidence in a proceeding. (b) In a proceeding, the following privileges apply: (1) A party may refuse to disclose and may prevent any other person from disclosing a mediation communication. (2) A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator. (3) A nonparty participant may refuse to disclose and may prevent any other person from disclosing, a mediation communication of the nonparty participant. (c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation. Waiver discussed in 12 V.S.A. § 5715. |
| Does your jurisdiction recognize a settlement negotiation privilege? | No. The restriction on the admission of evidence of settlement negotiations as contained in Vt. R. Evid. 408 does not create a privilege, but rather is a bar to admission based on relevancy. Douglas v. Windham Superior Court, 157 Vt. 34, 38 (1991). |
Lex Mundi Global Attorney-Client Privilege Guide
USA, Vermont
(United States)Contributors
Updated 10 Sep 2021Yes. See Vermont Rules of Evidence, Rule 502.
Not applicable.
No. Government authorities may not require disclosure except in cases of waiver or if some other exception applies.
Vermont has rejected the control group test in favor of the subject matter test (the Upjohn approach). See Baisley v. Missisquoi Cemetery Ass'n, 167 Vt. 473, 483, 708 A.2d 924, 930 (1998) (explaining that “[t]he rule was amended to correspond with the new statute 12. V.S.A. § 1613 …. Although the rule is intended to produce the same result as the statute, the drafting is taken from Rule 502(a)(2) of the Uniform Rules of Evidence, which was modified in 1986 to ‘bring the rule into conformity with Upjohn Co. v. United States.’”).
V. R. Evid., Rule 502(a):
- A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view of obtaining professional legal services from him.
- A “representative of the client” is (A) a person having authority to obtain professional legal services or act on advice rendered pursuant thereto, on behalf of the client, or (B) any other person who, while acting in the scope of employment for the client, makes or receives a confidential communication necessary to effectuate legal representation for the client. In the case of a corporation, the officers and directors and those persons who have the authority to control or substantially participate in a decision regarding action to be taken on the advice of a lawyer are also “representatives of the client.”
12 V.S.A. § 1613:
Communications otherwise privileged under Rule 502 of the Vermont Rules of Evidence are privileged with respect to a corporation only if the representative client is a member of the control group of the corporation, acting in his or her official capacity. However, if the communications are with a representative client who is not a member of the control group, such communications are privileged only to the extent necessary to effectuate legal representation of the corporation. For purposes of this section, “control group” means:
- the officers and directors of a corporation; and
- those persons who:
- have the authority to control or substantially participate in a decision regarding action to be taken on the advice of a lawyer; or
- have the authority to obtain professional legal services or to act on advice rendered pursuant thereto, on behalf of the corporation.
No. As with outside counsel, in-house counsel’s communications with those outside the control group must be “necessary to effectuate legal representation of the corporation.” Vt. R. Evid., Rule 502(a)(2). Communications with those within the control group must be “made for the purpose of facilitating the rendition of professional legal services to the client.” Vt. R. Evid., Rule 502(b). However, these questions are particularly difficult in cases with in-house counsel. Courts may look to “the reasonable expectations” of the putative client in determining “whether the client sought the application of an attorney’s skill and training.” See Carneilli v. State, No. 396-6-14 Wncv, 2015 WL 5176771, at *2 (July 7, 2015).
Not applicable.
Not applicable.
Yes
Vt. R. Evid., Rule 502(b):
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client … (3) by him or his representative or his lawyer, or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein…
No. See, e.g., Munson Earth Moving Corp v. City of South Burlington, No. S0805-08 CnC, 2009 WL 8019258 (March 30, 2009).
Yes. Vermont Rules of Professional Conduct, Rule 1.8(f):
A lawyer shall not accept compensation for representing a client from one other than the client unless:
- the client gives informed consent;
- there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
- information relating to the representation of a client is protected as required by Rule 1.6.
No.
Yes.
Vt. R. Evid., Rule 502(d)(1):
There is no privilege under this rule: …If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud…
Work Product Doctrine/Litigation Privilege (a doctrine that protects materials prepared in anticipation of litigation or for trial)
Vermont Rules of Civil Procedure, Rule 24(b)(4).
To be protected under Vt. R. Civ. Pro. 24(b)(4), it must be:
- a document or tangible thing;
- prepared in anticipation of litigation or for trial; and
- by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).
The party seeking discovery has the burden of showing “substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has been made, the judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
No. Watson v. Dimke, 178 Vt. 504 ¶ 4 (2005).
Yes.
Vt. R. Civ. Pro. Rule 16.3(c)(2)(e):
All written or oral communications made in connection with or during a mediation proceeding conducted under this rule are governed by chapter 194 of Title 12 of the Vermont Statutes Annotated.
Vt. R. Evid., Rule 501(b):
This subdivision applies to information that is protected by a statutory privilege and which… (3) was communicated to a mediator, factfinder, or arbitrator during a labor dispute or negotiation. The… mediator, factfinder, or arbitrator who holds the information is presumed to have the authority to claim the privilege on behalf of the person privileged. Unless the statute provides to the contrary, the privilege does not extend to the original information, documents or records when sought from original sources. No privilege exists in actions involving perjury, false statements, fraud in a return or report, or another failure to comply with the statute, rule or order in question. Rules 510 through 512 shall apply to privileges covered by this subdivision.
12 V.S.A. § 5714:
(a) A mediation communication is privileged and is not subject to discovery or admissible in evidence in a proceeding.
(b) In a proceeding, the following privileges apply:
(1) A party may refuse to disclose and may prevent any other person from disclosing a mediation communication.
(2) A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator.
(3) A nonparty participant may refuse to disclose and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.
Waiver discussed in 12 V.S.A. § 5715.
No. The restriction on the admission of evidence of settlement negotiations as contained in Vt. R. Evid. 408 does not create a privilege, but rather is a bar to admission based on relevancy. Douglas v. Windham Superior Court, 157 Vt. 34, 38 (1991).