THE VERMONT BAR JOURNAL • SUMMER 2013 Attorneys/VBA...4 THE VERMONT BAR JOURNAL • SUMMER 2013 VERMONT BAR JOURNAL Vol. 39, No. 2 Summer 2013 The Vermont Bar Association 35-37 Court

3 www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2013

SUMMER 2013 • VOL. 39, NO. 2

VERMONT BAR JOURNALDEPARTMENTS

5 PRESIDENT’S COLUMN

6 RUMINATIONS: The Pew-Holder’s Right

34 THE CHILDREN’S CORNER

36 BOOK REVIEWS

37 IN MEMORIAM

38 CLASSIFIEDS

On the cover:“Sun Worshiper”

Photo by D.D. Ryan

16 Reluctant Literati: Lawyers as Professional Writers Brian Porto, Esq.

19 Attorney Fee Awards in Litigation Between Trustees and Beneficiaries Kevin M. Henry, Esq.

26 Sex Offenders and the Law Renee Sorrentino, M.D.

30 The Ideal Place: ABA/NLADA Equal Justice Conference Mary Ashcroft, Esq.

32 Vermont Bar Foundation IOLTA Honor Roll

33 Serving Our Communities Through the IOLTA Honor Roll Samantha Pause

www.vtbar.org 4 THE VERMONT BAR JOURNAL • SUMMER 2013

VERMONT BAR JOURNALVol. 39, No. 2 Summer 2013

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PresidentAmber L. Barber

President-ElectDavid R. Fenster

Past PresidentJames F. Carroll

SecretaryEdward J. Tyler III

TreasurerMatthew F. Valerio

Board of ManagersDavid C. Carter

Timothy DohertyThomas S. Durkin

Jennifer Emens-ButlerGary L. FranklinAustin R. Gray

Michael E. KennedyDaniel H. MaguireElizabeth NovotnyGrace B. Pazdan

Daniel P. Richardson

Executive DirectorRobert M. Paolini, Esq.

Director of Education andCommunication

Kevin F. Ryan, Esq.

CFO / Member BenefitsLisa M. Maxfield

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course, is not such a place. Consequently, in our discussions we need to determine whether the incubator concept can trans-late to Vermont such that it could be used to bring the legal services provided by the incubator lawyers to rural areas. One possi-ble approach is to take advantage of tech-nology that would allow lawyers to prac-tice in far-flung areas of the state (where the legal needs are greatest) while main-taining contact with the rest of the firm—the so-called “virtual office” concept. This approach might include efforts to link incu-bator lawyers with experienced practitio-ners in small towns who might be winding down their practices or considering retire-ment, creating mentorship opportunities that may well lead to new lawyers develop-ing relationships in rural communities that can be the basis for future shingle-hanging. Other approaches are on the table as we wrestle with taking a model developed for a condensed population and consider ap-plying it to our rural population. The VBA is working with VLS and other stakeholders to explore the options and to examine var-ious ways to foster cooperation. We wel-come your input and thoughts as we dis-cuss these ideas.

Thank you to all who helped make this year a success, and thank you to our won-derful VBA staff whose good work we count on each day.

____________________Amber L. Barber, Esq., is president of the

Vermont Bar Association and practices law with the firm of Barber & Waxman, in Burl-ington, Vermont.

by Amber L. Barber, Esq.

services for low-income individuals? The answer may lie in a new program the VBA is researching: an incubator law program.

As many are aware, law graduates con-tinue to face a tough employment mar-ket, and many suffer under massive stu-dent debt while finding themselves unem-ployed (or under-employed). Some deter-mine to hang out their own shingle to try and make a living, but with little practical skills this challenge can seem overwhelm-ing, or even impossible—not to mention ethically dangerous. Typically, law students are not trained in law office management, including practice management, fee-gen-eration, billing, record-keeping, book-keeping and taxes, client trust fund man-agement, and technology, and many lack general practical skills. More, the expense of setting up an office can make starting a law firm impossible for someone who has just graduated and is likely carrying a heavy debt load.

Over the past few years a number of law schools and bar associations around the country have developed “incubator” programs that allow new attorneys an op-portunity to develop the skills they need to be successful while providing “low-bo-no” services. Incubators provide a place in which new lawyers can learn the business skills needed to practice law successfully. In addition, they can instill in new lawyers a sense of social responsibility to continue to serve their community and low-income res-idents. Would the incubator model work in Vermont? This is one option being investi-gated by the VBA.

The overall goals for the VBA in consider-ing an incubator firm, or another approach, include encouraging young lawyers to re-main in Vermont, encouraging Vermonters to return to practice in Vermont, producing public service-oriented attorneys, and pro-viding real access to justice for all Vermont-ers. Successful incubator programs else-where have been centrally located, usually in large urban environments. Vermont, of

It has been a busy and productive year for the VBA. We have had many wonder-ful meetings and conferences, including the Mid-Year Meeting with Bridge the Gap and the Basic Skills program, the Solo and Small Firm Conference, wonderful CLEs put on by many of our sections, and a con-ference on Civility and Free Expression in a Constitutional Democracy.

Through an effort led by our executive director, Bob Paolini, we successfully lob-bied for increased funding for legal ser-vices provided by Vermont Legal Aid. As a result, Vermont Legal Aid received an in-crease of $125,000 over last year’s bud-get, plus $75,000 from an AG settlement with a loan processing company. Legal Aid will also receive the second $100,000 in-stallment from the global foreclosure set-tlement authorized last year. Bob and the others involved in this effort deserve rec-ognition for pressing the issue and keeping access to justice in the minds of our gov-ernment leaders. Well done!

On the list of other VBA accomplish-ments (many with other stakeholders), we successfully extended Vermont’s foreclo-sure mediation program and worked on a bill to overturn, in part, a Supreme Court decision that affected both trust and estate and family law practices.

The VBA, the VBF, the Supreme Court, VLS, and the Access to Justice Coalition continue to work together on issues facing self-represented litigants and access to jus-tice. Currently, the VBA facilitates low bono work through our pilot projects and clinics coordinated by Mary Ashcroft, the VBA Pro Bono Coordinator. We know that there are unmet legal needs given the statistics pre-sented to us by Chief Justice Reiber, and we look forward to working with others to continue to discuss new ideas to ensure ac-cess to justice.

As a group, we are asking ourselves many questions, and the VBA is also ask-ing itself questions. How can the VBA as-sist retiring lawyers with transitioning their practices to new attorneys wanting to prac-tice in Vermont and our rural communities? At the same time, how can the VBA assist graduating law students who want to stay and practice in Vermont to obtain the train-ing needed to hang their own shingle? How can the VBA help self-represented people who need attorneys but cannot afford tra-ditional rates to obtain quality legal ser-vices, and thereby increase access to legal

PRESIDENT’S COLUMNAccomplishments and Possibilities

ERRATAApologies to Attorney Peter Lawrence of Bennington, one of the

2013 VBA Pro Bono Service Award winners. Peter was incorrectly identifiedn our spring issue as having attended the New England School of Law. In fact, he graduated from Northeastern University School of Law in Boston. Peter’s

good works reflect well on either institution, but his alma mater is Northeastern.


RUMINATIONSby Paul S. Gillies, Esq.

The Pew-Holder’s Right

In most churches, the congregation faces the pulpit and the altar. This is the style of all public meeting spaces, whether it’s the metal chairs set up for town meeting, the desks of legislators, or the benches at the courthouses. The first meeting-houses in Vermont were not built that way. Because they served both secular and religious pur-poses, the floor of the house was often bro-ken into a series of square pews, owned by particular parishioners, used during wor-ship. They were small, four-sided cubicles, often with high walls, and seats on three sides of the structure. The high walls, de-signed to allow the family to focus on the minister, were one reason for the high pul-pits of the early churches. At town meet-ings, there was no claim of right to a par-ticular seat.

The best examples of these old pews to-day are found at the First Church of Ben-nington and the Rockingham meeting-house, which have maintained their original character. These are also among the oldest churches in Vermont. In Rockingham, the meeting-house was constructed in 1787, with pews drawn by lot, “with the proviso that the owners should seal the floor, glaze the windows, and build the pews.” There are pews in the center, off the aisle, along the sides, slightly raised in elevation, and more pews in the gallery. They were sold to the highest bidder at auction. The walls were high-backed, with seats on three sides, described in the original design as “pig-pen style.”1 The church was unheat-ed, but as the 1915 history of the building explained, the members had the fire of dis-course to warm them during town meet-ing and the passion of a good preacher on Sundays and holy days. There were also foot warmers, fueled by embers or coal, usually for the ladies and young ones.

Although many churches were built with pews, at the Grafton meeting-house the congregation sat on rough boards un-til 1818, when pews were first construct-ed.2 That church was remodeled in 1832, and the square pews removed, when the “house was half turned around,” reorient-ing the pulpit to another wall. In Dummer-ston, the meeting-house was construct-ed in 1779, but the pews not added until 1788.3

Building a church signified a town had arrived. The steeple could be seen from far away, and gave the town its charac-ter. It was also the most expensive outlay of funds for new communities. The money

was raised by taxes, subscription, vendue (sale) of pews, or a combination of those mechanisms, and ownership of a pew was serious business.

Anyone doing a search of early volumes of town land records has seen deeds to pews recorded with the deeds for other real estate. Pews were regularly conveyed from generation to generation, by deed or will, or sold to others for good value. A prominent family would have a promi-nent pew, in many towns revealing a strain of class distinction based on wealth, which today seems inconsistent with the demo-cratic spirit shown at town meeting and in the application of laws in general. You might well wonder, what has law got to do with the business of sorting out the use of pews? To appreciate the answer, begin with the question of separation of church and state (or town).

Statutory History of Pews

Finding “it is of the greatest importance to the Community at large, as well as to in-dividuals, that the Precepts of Christianity and rules of morality be publickly and stat-edly inculcated on the minds of the Inhab-itants,” the Vermont General Assembly en-acted a law in 1783 authorizing towns to erect houses of public worship and hire

ministers, paid for by town taxes.4 When the inhabitants of a town “think themselves sufficiently able to build a Meeting House,” seven freeholders could petition the clerk to warn a meeting, on twelve days’ notice, to vote on the question. A two-thirds vote of the meeting (with at least twenty-five voters approving the article) was required to choose where the house would be built and vote a tax to pay for it. The town would set the salary of the minister (or ministers, in towns where more than one meeting-house was to be built). When the meet-ing couldn’t decide on where to build the house, the county court was given the duty of appointing a committee, and deciding the question, if the committee’s report was judged “just and equal.”

Recognizing that there are people with “different Sentiments in religious Duties, which lead peaceable and moral Lives, the rights of whose Concience this Act is not to controul,” and to discourage those “who pretend to differ from the Majority with a Design to escape Taxation,” the act al-lowed people who could produce a certifi-cate from a minister of the gospel, showing they were of a “different Persuasion” from the majority, an exemption from those tax-es. In Rockingham, 250 exemptions were filed over the years that law was in effect.5

This was a Protestant state at first. The Vermont Constitution, in Article 3, guar-anteed the “natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding, regulated by the word of God,” and held that no man

ought, or of right can be compelled, to attend any public worship, or erect, or support any place of worship, or main-tain any minister, contrary to the dic-tates of his conscience; nor can any man who professes the protestant reli-gion be justly deprived or abridged in any civil right as a citizen, on account of his religious sentiment, or peculiar mode of religious worship … 6

Each legislator was required to take and subscribe a declaration, stating, “I do be-lieve in one God, the Creator and Gover-nor of the universe, the rewarder of the good and punisher of the wicked. And I do acknowledge the scriptures of the old and new testament to be given by divine inspi-ration, and own and profess the Protestant religion.”7

Photo by D.D. Ryan


Weathersfield residents had built and paid for a house of public worship with-out assistance from the town, perhaps be-cause the town was unwilling to pay for it, but turned to the legislature in 1785 for a tax. The General Assembly obliged, levy-ing a three pence per acre tax on all lands, except public lands and those of residents who could show they were of a different sentiment than Congregational or Presby-terian.8 No vote of the town was required or sought in this instance. Thetford was giv-en the same authority.9

The practice of raising funds for the building of meeting-houses by subscription was first recognized in statute in 1787. That year the law authorized the societies who erected the houses to exercise the same powers as town tax collectors, in collecting the money promised when the buildings were first erected.10

Ten years later the legislature expand-ed the law on the establishment of hous-es for social and public worship, ratifying the contracts with ministers, and address-ing how new residents of a town would be treated. Unless they produced a certificate signed by a minister of another denomina-tion, they “would be considered as being of the religious opinion and sentiment with the major part of the society in which he re-sides,” and so held liable to pay the taxes. The act also recognized that a town may be made up of different parishes, so that the tax could be properly allocated to the min-ister or meeting-house serving that part of town.11

The Council of Censors was troubled by this law. In 1799, the Council declared it un-constitutional, as a violation of Article 3, as the legislature had “assumed upon them-selves, and exercised greater powers, than they are entitled to by the Constitution.” Only conscience, not law, can bind a per-son to support houses of public worship or ministers, the Council declared, and urged the repeal of the law.12 The legislature ig-nored the Council, but after the 1806 Council repeated the admonition, the leg-

islature finally repealed the law in 1807.13 Pews earned their first explicit mention

in Vermont law in 1853, when a pew or slip in a house of public worship was add-ed to the definition of “real estate,” in an act that also allowed pews exemption from levy of execution.14 In 1856, however, the Supreme Court confirmed that a pew is not part of the homestead, denying a claim by a surviving spouse at probate.15

Laws relating to pews are now tucked into Title 11 in a separate chapter. Large-ly a product of the 1864 legislature, but amended from time to time, the statutes were written to address the problems en-countered by aging church buildings, as a way of resolving disputes among pew-owners over paying for improvements. The money or goods paid for a pew-right origi-nally was not the end of the pew-holder’s obligation. When the building needed re-pairs, they would be assessed for a propor-tionate share of the cost.

The law authorizes a public sale of pews, when owners fail to pay assessments, after a three-week notice and demand. The pro-ceeds are distributed to the society first to pay for the assessments and costs of the sale, with the remaining money returned to the owner.16 There is a six-month period of redemption, before a deed may be issued and recorded to the new owner.17 The law also governs how the meeting is run to ap-prove assessments. Each pew owner has one vote per pew. The value of pews is de-cided by a committee of three, elected by ballot, to appraise the interest in each pew and “establish the proportion each interest shall bear to the whole,” using that equa-tion to allocate each proportionate share of the assessment.18

Occasionally the General Assembly in-tervened to resolve legal problems with pews. In 1900, for example, the legislature authorized the proprietors and pew own-ers of the Union Meetinghouse in Chel-sea to remove about one-third of the pews from the church and compensate the own-ers for their losses, rearranging the pul-

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ed one vote per pew in perfecting the de-sign.19 In 1906, Plainfield’s Restoration So-ciety was authorized to dispose of its prop-erty by conveying it to the town, one vote to a pew, divisible in proportion to the in-dividual’s allocative share of the pew, and the pew in proportion to the total number of pews, in approving the sale or lease of the building.20

Churches

Services at early churches commonly in-cluded sermons of more than two hours in length.21 The relative comfort of the pew was important, particularly if there was no heat source in the house. Wood seats, no matter how beveled, seem to harden over an hour’s time, and discomfort can inter-fere with worship or attention span.22 Only the most compelling sermons can over-come the distractions of the seating ar-rangements.

The square pews likely made concentra-tion on the proceedings even more chal-lenging. As described in the history of the Pawlet Congregational Church, “one-third of the audience sat with their backs to the speaker and another third had to look over their shoulder.”23 Or you could look at the other members of your pew, and see them at prayer. Recalling the church at Andover, one former parishioner described the fam-ily pew. It

had a seat on three sides and the door that shut us in on the fourth side, so we were boxed up for two long hours, un-less we chose to run out a while, which was a common practice. During the long sermon some of the men used to stand up and lean on the pew door to rest. One day old Uncle Pete was do-ing this, he fell asleep, and leaned so heavily that the pew door became un-latched, and Uncle Pete fell clattering to the floor, to the astonishment of the congregation and to the great delight of us young folks.24

The Strafford meeting-house’s square pews were described as “surmounted by high ballustrades, shutting families in so many pens.”25

Design

The design of many early New England churches came from Asher Benjamin’s The Country Builder’s Assistant (1797).26 Form books like Benjamin’s were the equivalent of the DIY videos available on YouTube to-day, providing designs for balustrades, pul-pits, steeples, ornamental moldings, and the arrangement of pews.27

The church at Westminster was designed


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ing was done, refused to pay, claiming the work was extravagant, and that the com-mittee had exceeded its authority in build-ing a church costing nearly $2,000. The church included fifty-two pews, with each pew-holder paying $30 for the right. The articles of the association on the subject, as construed by Judge Stephen Royce when the dispute reached the Supreme Court, did not limit the charge to the pew-own-ers, however. They were

designed to secure a sale of the pews, and not as an absolute limit to the cost of the house. As to this the plan of the house, as settled by vote of the soci-ety, was the necessary guide of the committee, and no suggestion is made of any extravagance or needless ex-pense in building it in conformity with that plan.

Judgment for Sawyer.36

A Class System

Not all churches adopted the system of awarding pews based on how much the bidder would pay. In Cornwall, the church pews were sold in 1796 “without assessing or dignifying one pew above another … ”37 But at Westminster, the pews nearest the pulpit

were the first built and were occupied by those whose social rank was the highest. Gen. Stephen R. Bradley oc-cupied the wall-pew next to the pul-pit, on the right hand of the minis-ter, and John Norton, with his numer-ous daughters, had the corresponding pew on the right. The front pew on the right of the central aisle was the min-ister’s pew, and directly opposite, was the pew of Hon. Mark Richards.38

The history of Westminster notes that Brad-ley, the most distinguished person to own a pew at the meeting-house, never paid for it, and never formally joined the church, but his presence was essential, because of his status.

On New Year’s day, 1862, the congre-gation of the Northfield Episcopal Church adopted the free seat system advocat-ed by Rev. William C. Hopkins, and the pews were made “unconditionally free,” and “were never thereafter rented.”39 You could sit wherever you wanted, as long as you were first to arrive.

The old square pews, when they were owned by individuals or families, took on the character of the pew-holders. In Con-necticut, the pew of Tory Joshua Cham-berlain was torn out of a meeting-house in 1780.40 Entering a church for the first time, you would know the pews by the name of

with blocks of pews on either side of a center aisle, the pews a step higher than the aisles, which frequently caused peo-ple to stumble at the doorway. The pews were high-backed, built up as as high as the heads of those who worshipped there, with seats on four sides, leaving only a door free of seats, each seatting twelve to six-teen persons. Persons of importance en-joyed the best pews, measured by proxim-ity to the pulpit.28 Because the pews were often crowded, the seats were hinged, and raised when standing for hymns or prayer. At Guilford a parishioner remembers how, after the end of a hymn, “the seats were lowered and were usually allowed to fall to their places with a great clatter.”29 This clat-tering “music once furnished amusement for the little ones” according to the history of Westminster.30

The church at Shelburne was built in 1808, and included three aisles on the ground floor, “two rows of body pews of square form, seats on all sides, and a single tier of like construction around the outside, called wall pews, with a wide gallery on the front and two sides above, and a large el-evated pulpit in the extreme back end of the building.” It cost $5,000, and was un-heated.31 At Brookfield, the high pulpit is remembered, not just for the sermons preached from that aerie, but for its effect on the holder of the pew directly under it.

Deacon Kellogg occupied a pew so near the pulpit that to see Father Ly-man he had to look up more than for-ty degrees. In doing so he always let his lower jaw drop down, stopping to swallow at the end of each head; so he did almost through the whole sermon. The young people said he was swal-lowing the preaching, and so he was.32

At Castleton, a “pew in the gallery ele-vated above the top of all others, was the tithing-man’s seat; where, in exalted digni-ty he watched the deportment of the boys and girls, whose allotment it was to occupy seats above; where it was not easy to resist the temptation to amuse each other dur-ing service.”33

Extravagance was not what the people wanted for their churches, but they cared enough to make the church attractive. The pews, balustrades, and pulpit at Newport were made of brown ash.34 The meeting-house at Stowe, constructed in 1860, had eighty-six pews, “constructed in a form at once convenient and pleasant to look upon, being supplied with elegant and ex-pensive upholstering.” The pews in that church only sold, according to the church history, to “responsible persons.”35

Oramel Sawyer served on the committee to build the Royalton Methodist Episcopal church in 1839. The society, once the build-

www.vtbar.org 10 THE VERMONT BAR JOURNAL • SPRING 2013

the owner, and you would not enter a pew without permission. There were always benches, perhaps in the gallery, for those who were just visiting, or unable to pur-chase the better seats.

Auctions and Sales of Pews

There were several different ways of valuing pews. For the pews in the Water-bury meeting-house, the 1823 plan estab-lished the cost each pew-owner would pay initially.41 At Bradford, beginning in 1793, pews sold from £32 to £4 11s each, the gal-lery from £8 to £6 6s.� The Congregational Meeting House in Rutland cost $6,600, and to raise those funds the committee sold six-ty-six pews at $100 each. The subscribers were then authorized to vote on the site of the building, and appoint a committee of three to superintend the construction. Once the church was erected, the choice of specific pews was decided by auction. Each pew in numerical order was sold to the highest bidder. If more money was raised than needed, it would be returned to the subscribers based on the number of their shares, not the amount they paid for the pews.43

These auctions were called the sale of the “pew ground.” At Norwich, in 1781, twenty-six of the thirty pews were sold at

prices ranging from £8 to £31. The origi-nal plan was for three families to occupy each pew, but in 1782 this was amended to place five families in each.44 The General Assembly met in that building in 1785. That year the town voted to assume full control of the building, repaying the pew-owners from town taxes.45

The first State House was built with funds raised by the Town of Montpelier, with the understanding that it could serve as the meeting-house. There were 122 pews, which were sold with the requirement that parishioners would pay one-half in neat stock and grain, one-half in money, for the pew-rights.46 In 1795, the twenty-eight pews on the floor of the Barnet Meeting House were sold at vendue for £300, the gallery pews at £110. One-tenth of the cost had to be paid in money, the rest in wheat, at five cents a bushel.47 The pews at the Shelburne Union or White Church sold to the highest bidder in 1808, “and each pur-chaser became a stockholder in the prop-erty in proportion to the amount of his pur-chase, and could assign his interest to any order of Christian worship he chose.” Pew No. 1 was bid off by Uzal Piersons at $630, No. 2 by Ziba Piersons at $550; and the cheapest pews sold for $20, raising $6,000 in all.48

At Vershire, a “plan of the meetinghouse

having been exhibited, the pew-ground of said house was set up at vendue, and the person, or persons, who bid highest for choice of pew-ground was to have it, provided they were of the Congregational or Presbyterian order.” One-eighth of the cost was paid in sales of lye delivered to Jonathan Maltby’s. No pew to be sold for less than £10.49 It took eleven adjourned meetings between January 1, 1799 and March 8, 1802 to sell the pew-ground at the Benson Meeting-House, to finish the building. Two pews “as we go into the gal-lery, the one on the north side, and the oth-er on the south side of the house,” were reserved for blacks to use. The bids were paid in neat cattle or grain, in three yearly installments, and the congregation raised $5,895.25 in all.50

Alcohol was apparently a necessary in-gredient in the sale of pews. The town meeting of Wheelock voted to bear the ex-pense of the rum for “vendueing off” the pews in Wheelock in 1796. The local his-tory suggests that this beverage helped stimulate the members “to bid [on] what they did not want.”51 At Waitsfield, rum was provided for the men at the raising of the walls.52 The practice had its risks. At St. Johnsbury, during the construction of the meeting-house in 1804, Zibe Tute, stand-ing on the highest timber, took a last drink from his flask and descended headfirst to the ground.53

Construction and Payment Woes

Some men representing the Congrega-tional Meeting House in Rutland hired a contractor to build it, but when the time came to pay him, the subscribers balked at payment. They had not incorporated; they were but a voluntary association. The con-tractor attempted to hold the committee personally responsible for the bill, but the Supreme Court refused to treat them as li-able. More importantly, the contractor was not even allowed to sue, as he was also a member of the association.54

In order to persuade others to join in subscribing for a pew in the church at Randolph, a church member, without the knowledge of the association, told Benja-min Blodgett if he bought a share, valued at $25, he could redeem his subscription at any time. When he sued to have his mon-ey returned, the Supreme Court refused to enforce a contract created as a sham to deceive and defraud others.55 Judge Isaac Redfield held him to his promise. He add-ed, wryly,

If the defendant were told, that his own subscription was a mere sham, to impose upon others, what right had he to expect, that it was not so with any one or all of the others, which went be-

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fore? He might, perhaps, suppose that some were genuine. But why should he be the only decoy used to bait oth-ers.56

Courts don’t enforce illegal contracts.

Which Denomination?

In Jericho, Congregational was regarded as the “town religion,” and the meeting-house was funded by all taxpayers, wheth-er they were of that persuasion or not.57 The Congregational minister was deeded the ministerial lot.

At the Lyndon Meeting House, the pro-portion of pews owned by members of the different sects determined the amount of Sundays each denomination could use the church. That building, constructed in 1809, was paid for entirely by the sale of pews.58

There were fifty-two pews at the Coven-try Meeting-House, finished in 1832, “and by the constitution of the society in which the legal title was vested, each holder of a pew was authorized to have the pulpit oc-cupied one Sabbath in a year by a preach-er of such denomination as he preferred.” Over time, the Baptists became the major-ity denomination, and their preacher be-came a familiar figure on Sundays.59

Pews in Court

You might imagine that church-going people would avoid litigation in the reso-lution of their issues with the church soci-ety, but you would be wrong. Frequently during the years after the Civil War, individ-uals went to war with their churches over the right to pews, usually involving claims over compensation when a church was torn down or replaced, but in other, interesting conflicts as well. The buildings aged, theol-ogy changed, and new ideas assailed the churches, from temperance to abolition-ism to women’s suffrage, threatening dis-cord and division. While the buildings last-ed, the churches held together, but when it came time to replace the old meeting-house, fractures emerged in the surface of the associations.

Vermont is not unique in having courts decide legal questions of pew ownership. There are cases in other New England states, as well as New York and New Jer-sey. In New Hampshire, the right is called a pew-tenancy, and Massachusetts the courts have described it as a qualified and usufructuary right, qualified because the society could remodel and alter the build-ing, enlarge, remove, or sell it, as a supe-rior interest.60 There is a reported decision from Massachusetts involving a fight over an undivided one-fourteenth part of a pew in Shrewsbury.61A Massachusetts court in 1842 recognized the right of a pew-owner

to lock himself and his family into the pew, and sue intruders for trespass.62 The sale of pews is not limited to Christian places of worship. There is a decision from New York of a claim by the owner of pew No. 24 in the Temple Beth El in New York City, based on his conviction that the location of the new pew he was assigned when the temple moved to another building was worth less than what he had purchased.63

Who Owns the Pew?

Rodman Chapman gave Samuel Eddy a note for $30 for the undivided share of a pew at the Bristol Meeting-House in 1835, but a deed was never delivered, although the Chapman family occupied the pew for several years, “without molestation,” as the court described the use. When Chap-man sued to force Eddy to convey the pew right by deed, the Supreme Court, in a de-cision from 1841, found that the mutual promises, as shown by the note, were suf-ficient consideration to justify requiring a deed to be given.64

Religious differences separate people into denominations. Sometimes, churches split into parts, when members disagree about doctrine, social issues, or the qualities of the minister. In 1843, Ba-kersfield was torn by two sects vying for control of the meeting-house. The Bakers-field Congregational Society sued the Uni-versalists for trespass, when the Congre-gationalists were locked out of the church. On appeal, Chief Judge Charles K. Wil-liams ruled in favor of the Universalists. The pleading in this case was trespass quare clausum fregit, but the claim was defective; the church was not the exclusive posses-sion of the Congregationalists, and for that reason the claim for adverse possession failed.65 Pews played an important part in the decision, because they were owned in-dividually, and the pew-holders could not be “divested, except by their own con-sent.” Williams noted his ruling relied on his belief that a pew is not real estate, and so its owner has no right to claim trespass. But this was not the rule followed after 1843 by the court in subsequent cases, be-fore the legislature settled the question fi-nally in 1853 by amending the definition of real estate.

Luke Williams purchased pew No. 32 in the Congregational Meetinghouse in Springfield in 1832. He sold it to Henry Bar-nard, using a certificate of ownership pro-vided by the association that lacked the formalities of a deed, including an acknowl-edgment. In a decision from 1857, Judge Pierpoint Isham ruled the conveyance de-fective, and upheld the association’s forfei-ture action of the pew based on Williams’s failure to pay an assessment. Because a pew is real estate, it could only be trans-

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ferred using the statutory procedure for deeds.66

When the Pew Is Destroyed

When the Congregational meeting-house in Benson was demolished in 1842, John Kellogg was upset. He had purchased a pew in the house, completed in 1803, af-ter a vote at town meeting. But almost for-ty years later, the old meeting-house had become “inconvenient, decayed, and unfit longer to be used as a place of public wor-ship.”67 Kellogg sued for damages. Follow-ing an appeal, Chief Judge Charles K. Wil-liams wrote the decision for the court, and began by recognizing Kellogg’s “beneficial interest in the property,” which the town or society held in trust for them.

The interest of the pew-holders is sev-eral. They have an exclusive right to occupy a particular seat, to the exclu-sion of all others, when the house is used for the purposes for which it was erected. This right of the pew-holders, however, must necessarily be a quali-fied and subordinate right. They may occupy their seats for the purpose of attending public worship; but the indi-vidual cannot convert his pew to other uses, not contemplated.

hold on to their pews by challenging the process.

Silas and Julia Hodges owned a slip at the Baptist Meeting House in Rutland. As the building was in need of repair, a com-mittee was charged with buying up the slips of non-members. The committee’s representative offered Silas Hodges, Julia’s husband, $15 for the slip, and Julia agreed, in 1852. Not many slips were purchased, but the committee went ahead and made the improvements, remodeling so that the “identity of the old slips was destroyed.” Silas left town before deed was conveyed, so the transaction was entirely oral, with nothing in writing, and Julia was left with trying to collect the money. The Baptists refused to pay, arguing that for lack of a writing the suit could not be maintained, in light of the statute of frauds.70 Pierpoint Isham, who wrote the decision of the court, started with recognition that the pew was real estate, but that as the suit was for payment of money, not the pew, no writ-ing was necessary, particularly as the soci-ety had acted as if it owned the pew after agreeing to the price. Julia should be paid for the pew.

In 1860, the Supreme Court ruled on the claim of Philander Perrin, administrator of the estate of Lebbeus Edgerton, for a pew in the Union Meeting House in Randolph. The society had sold the pew at public auc-tion to a man named Cheedle after pay-ment for an assessment to improve the church went unpaid by the estate. The ar-ticles of the association authorized the pro-prietors of the church to tax themselves to repair the house when it was out of repair, and to conduct the public auction when payment was not made. The dispute made two trips to the Vermont Supreme Court. At first, the decision was reversed and re-manded for lack of proof that the assess-ments were voted by two-thirds of the pro-prietors. Two years later, after Perrin was awarded $1.00 in damages, Chief Judge Isaac Redfield repeated the rule, “that in ordinary cases the pew holders in meeting-houses, or churches, built by incorpora-tions under the statute, have only a right of occupancy in their seats, subject to the su-perior rights of the society owning the fee of the church, and worshiping in it.” Red-field explained that the proper pleading for disturbance of the enjoyment of the rights of the pew-holder is trespass on the case, not ejectment.71

This is a fine distinction, but in common law pleading forms were critical. One year later, in O’Hear v. DeGosbriand (1861), the court upheld a suit for possession of a pew at the Roman Catholic chapel in Highgate brought as trespass quare clausum fregit. This time the challenge was doctrinal. The defendant, who was Bishop of the Vermont Diocese, explained that the chapel would

Williams believed Kellogg would have had a right to compensation in cases where a building was simply sold or abandoned, but not when the edifice was uninhabitable for purposes of public worship, because “it was not in the power of any individual to say, that an old, ruinous, or inconvenient house should remain as a place for public worship.”68

Pay or Forfeit

Here is the habendum used in pew deeds by the Brattleboro East Society:

To have and to hold the same to him the said James M. Reed, his heirs and assigns forever, provided, however, if the said James M. Reed, his heirs or assigns shall neglect or refuse for the space of six months after personal no-tice to pay such assessments as shall be made by the Brattleboro East Soci-ety, agreeably to their by-laws, for the sole purpose of repairs of said house and appurtenances, then this deed shall be void and said pew shall revest in said society.69

The replevin clause was built into the deed, making it harder for those who sought to

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not qualify as a Roman Catholic house of worship if pews were held in individu-al ownership, as that was contrary to the dictates of the church. Thomas O’Hear had purchased his pew for $3.00, and on ap-peal, Loyall C. Kellogg, for the court, held in his favor. Kellogg explained,

Pews constitute a subject of peculiar ownership. They are defined to be in-closed seats in churches, and it is said that according to modern use and idea, they were not known till long af-ter the reformation, and that enclosed pews were not in general use before the middle of the seventeenth century, being for a long time confined to the family of the patron.

Noting that in England a pew is a “mere easement,” Kellogg explained that

in this country the owner of pew has an exclusive right to its possession and enjoyment for the purposes of public worship, not as an easement, but by virtue of an individual right of proper-ty, derived in theory at least from the proprietors of the edifice or freehold, and hence trespass quare clausum lies for a violation of the owner’s right of possession.72

Parsing “Catholic,” the word used in the agreement among the parishioners who subscribed to build the chapel, he stated,

we should disregard a most palpable reality if we failed to recognize the fact that large bodies of Christians, not in communion with the church of Rome, assert in their creeds and daily worship their right to the name of Catholic, and reject as heretical and schismatical any assumption that the terms Catholic and Roman Catholic are equivalent or even allied in signification.

Kellogg explained that the church by its rules has no power to decide the legal rights of parties, unless there was evidence that those rules were part of the agree-ment. Thomas O’Hear owned the pew, and the church could not dislodge him.73

Chief Judge Charles K. Williams had been firm on that point in 1846, ruling on a case where two church associations claimed a legacy left to their predecessor church, prior to its bifurcation on doctrinal grounds. Church law was not going to rule Vermont courts on matters of contract.

[W]e have no religious establishment, no ecclesiastical law, or courts, estab-lished by any authority. All their laws

are wanting in this essential requisite to give them any authority, that they are not ‘prescribed by the supreme power in a State.’ And though they may form constitutions, enact canons, laws or ordinances, establish courts, or make any decisions, decrees or judg-ments, yet they can have only a volun-tary obedience, [and] cannot affect any civil rights, immunities or contracts, or alter or dissolve any relations or obli-gations arising from contracts.74

What Happened Then?

In 1842, the town of Benson quitclaimed its interest in the meeting-house to the church, retaining the right to a room to use for town meetings.75 Joint ownership was not a favored practice. One entity needed to take responsibility, as the church did at Rockingham.76 By 1871, the meeting-house at Lyndon became exclusively a town hall, the various denominations having con-structed their own churches.77

The 1859 alteration of the Pittsfield meeting-house converted pews into “mod-ern slips,” which the history of that town concluded “renders it a convenient house of worship.”78 That conversion process, fol-lowed in many churches, proved risky, and sometimes resulted in litigation. In Big-

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elow v. Congregational Society of Middle-town (1839), the court held that a meeting-house cannot be sold to cover the debts of the society when its pews are separate-ly owned. The widow of the preacher Abi-jah Bigelow attempted to collect moneys owed her husband after his death.79 Chief Judge Charles K. Williams held that

this property is not liable for the debt. The several pew holders have an indi-vidual interest in the meeting-house. They may or may not be members of the society, and although the fee of the land may be in the society, yet it is subject to the rights of the individu-al pew holders, as well as to any right which the public may have acquired, to have it kept for the purpose for which it was originally dedicated. It is not li-able to be taken on execution issuing on the judgment of the oratrix, and for the same reasons that it is not liable, a sale of it should not be decreed.80

Jericho School District No. 3 took over the Brick Meeting-House in that town, af-ter it ceased to be used for worship servic-es, and tore out the pews to make room for a classroom. Fifteen years earlier the con-gregation had voted not to repair the roof, and the building had “not been used for any purpose except as a resort and sport-ing place for the children of the neighbor-hood, and, to some extent, for the storage of lumber belonging to neighboring inhab-itants.” The heirs of the man who had ded-icated the land to the town for the use of a church or meeting-house sued to recov-er the property on a theory of reversion and breach of trust, and several pew-own-ers joined the suit to ensure their interests were respected.

Judge Hoyt Wheeler, on appeal, ruled that the school’s use of the building was no breach of trust, denied the heirs’ claims, and concluded the pew-owners were prop-erly admitted as parties, in spite of the long period of inactivity.81 He explained that the lack of maintenance did not necessarily mean that the church had abandoned the building. “It is well known,” he wrote,

that many churches have been weaker than this is, and the owners and pro-prietors of houses of religious wor-ship more cold than these are, and af-ter that the churches have revived and prospered, and the societies become strong and efficient. In view of all expe-rience in such matters, it cannot be as-sumed but that a time of strength and prosperity will follow the present time of weakness of this church while it has so many members as it now has, and still less, that it has abandoned its hope of existence or its house of worship.82

Wheeler extended that reasoning to the pew-owners as well.

The failure to so keep the house in re-pair that it could be occupied for the purposes of public worship, for which it was built, would not, of itself, termi-nate the plaintiff’s right to his pew, nor leave him without right to maintain an action for an injury done to his right to it by a stranger; but would only make his right to it less valuable, and in that way lessen the amount he could recov-er.

The pew, even though he did not own the wood or have exclusive right to it, was his real estate, and the pew-owner could sue to recover damages for its destruction. But his hope for a large award was dashed when the high court ruled he was entitled to nominal damages only. Since there were no services held at the building during its dilapidated period, he missed no opportu-nity to exercise that right.83

Over time, the churches changed. The pews were removed, replaced by slips, and the pulpits lowered accordingly, the sound-ing board no longer needed to project the minister’s sermon and the gospel to the congregation.84 Reserved seating in church-es is no longer tolerated. The old churches are mostly gone now, but the ones that re-main are cherished by their communities. To sit in an old square pew now, at Rocking-ham for instance, is to be transported back to another time, when towns and churches were linked by location; when the right to worship, guaranteed by the Vermont Con-stitution, was conditioned on paying for seating; when where you sat defined who you were. In your reverie, were this an ear-lier time, you could be asked to leave.

____________________Paul S. Gillies, Esq., is a partner in the

Montpelier firm of Tarrant, Gillies, Merri-man & Richardson and is a regular contrib-utor to the Vermont Bar Journal. A collec-tion of his columns has recently been pub-lished under the title of Uncommon Law, Ancient Roads, and Other Ruminations on Vermont Legal History by the Vermont His-torical Society.____________________1 Lyman SimpSon HayeS & WiLLiam DanfortH HayeS, tHe oLD rockingHam meeting HouSe, erecteD 1787 anD tHe firSt cHurcH in rockingHam, Vermont, 1772-1840, 18 (1915).2 abby maria HemenWay, 5 Vermont HiStoricaL gazetteer 1563 (1867).3 Id. at 83.4 “An act to enable towns and parishes to erect proper houses for public worship and support ministers of the gospel,” Oct. 17, 1783, 12 State paperS 195.5 HayeS, supra note 1, at 37. 6 Vt. conSt. of 1777, ch. 1, art. 3 in recorDS of tHe Vermont counciL of cenSorS 6 (1991). 7 Vt. conSt. of 1777, ch. 1, sec. ix in recorDS of tHe Vermont counciL of cenSorS 10 (1991).

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Weathersfield to raise a tax for the purpose of building a house for public worship in said town,” June 17, 1785, 14 State paperS 9.9 “An act to authorize the inhabitants of Weathersfield to raise a tax for the purpose of building a house for public worship in said town,” June 17, 1785, 14 State paperS 13.10 “An act supporting ministers of the gospel,” Oct. 19, 1787, 14 State paperS 348. 11 “An act for the support of the gospel,” Oct. 26, 1797, LaWS of tHe State of Vermont 1797 (1798) at 477. 12 recorDS of tHe Vermont counciL of cenSorS at 158.13 “An act, to repeal a certain act, and parts of an act, therein mentioned,” Oct. 24, 1807, LaWS of Vermont of a pubLick anD permanent nature (1825) at 600.14 LaWS of 1853, No. 33, § 2; compiLeD StateS (1850) 45:13, 363; 1 V.S.A. § 132.15 True v. Estate of Morrill, 28 Vt. 672 (1856). 16 LaWS of 1864, No. 75; 11 V.S.A. § 1471.17 11 V.S.A. § 1476.18 11 V.S.A. § 1473.19 “An act to enable the proprietors and pew owners of the Union Meetinghouse on West Hill in Chelsea to make repairs therein and to re-move a portion of the pews therefrom,” LaWS of 1900, No. 263.2 “An act to enable the restoration society at Plainfield to dispose of its property,” any three pew-holders able to call a meeting, each pew or part of a pew entitled to one vote for each pew “so by them owned, and in proportion for each part of a pew so owned,” LaWS of 1906, No. 355. Section 69 of the Vermont Constitution authoriz-es the legislature to regulate charitable corpora-tions, which is likely the basis for these acts. 21 peter beneS, meetingHouSeS of earLy neW eng-LanD 30 (2012).22 Churches were used for a variety of functions. The Baptist ministers would hold their associa-tion meetings at churches.

Beds were made up on the floor and the men were sometimes compelled to sleep in the pews in the meeting-house. It was on one of these occasions that Elder Leonard, who was a very fleshy man, snored loudly. One ner-vous minister, unable to sleep on account of Leland’s snoring, bore his trial as long as he could, and then, standing up full length in the pew he called out: ‘Elder Leland, Elder Le-land, the glory of your nostrils is terrible.

reV. Henry crocker, HiStory of tHe baptiStS in Ver-mont 77 (1913). 23 abby maria HemenWay, 3 Vermont HiStoricaL gazetteer 896 (1877).24 Dorothea Manning Pettingill, Old Time Meet-ings and Sunday School in Andover, Vermont, in 2 tHe Vermonter 46 (1918).25 abby maria HemenWay, 2 Vermont HiStoricaL gazetteer 1068 (1871).26 american arcHitectS anD tHeir bookS to 1848, 143 (Kenneth Hafertepe & James F. Gorman eds., 2001). See aSHer benjamin’S tHe country buiLDer’S aSSiStant (1797, 1798, 1917). 27 Id. at 159.28 jeSSie HaaS, WeStminSter, Vermont 1735-2000, 66, 81 (2012).29 HemenWay, supra note 2, at 51.30 Id. at 604.31 abby maria HemenWay, 1 Vermont HiStoricaL gazetteer 728 (1867).32 HemenWay, supra note 25, at 1163. “Head” seems out of place in this memoir, but it likely means section or part of the sermon.33 HemenWay, supra note 23, at 526.34 Id. at 298. 35 Id. at 719.36 Sawyer v. Methodist Episcopal Society, 18 Vt. 405, 406-407 (1846).


37 reV. Lyman mattHeWS, HiStory of tHe toWn of cornWaLL, Vermont 150 (1862).38 HemenWay, supra note 2, at 631.39 abby maria HemenWay, 4 Vermont HiStoricaL gazetteer 657 (1882).40 geneaLogieS of connecticut famiLieS 431 (1998, 2006). 41 HemenWay, supra note 39, at 838.42 HemenWay, supra note 25, at 820.43 Cheeny v. Clark, 3 Vt. 431, 433 (1830). 44 Henry ViLLierS partriDge, a HiStory of norWicH, Vermont 65 (1905).45 Id. at 67-70.46 HemenWay, supra note 39, at 568.47 HemenWay, supra note 31, at 278.48 Id. at 872. 49 HemenWay, supra note 25, at 1133.50 HemenWay, supra note 23, at 412.51 HemenWay, supra note 31, at 433.52 HemenWay, supra note 23, at 781.53 HemenWay, supra note 31, at 265. The mas-ter-builder of the Rockingham Meeting-House, General John Fuller, held his bottle of rum in one hand and a tumbler in the other, and rode the plate of the final structural member (called a “bent”) up into the rafters on the final day of construction in 1787. HayeS, supra note 1, at 21. Zite may have been attempting to follow the same tradition when he fell.54 Cheeny v. Clark, 3 Vt. 431, 435 (1830).55 Blodgett v. Morrill, 509 (1848). 56 20 Vt. at 516.57 HemenWay, supra note 31, at 830.

58 Id. at 215, 345. The same rule guided the Newfane Union Church, erected in 1831 and the meeting-house at Lyndon. HemenWay, supra note 2, at 725; HemenWay, supra note 31, at 345.59 HemenWay, supra note 23, at 155.60 Jones v. Towne, 58 N.H. 462 (1878). Interest-ingly, the New Hampshire Supreme Court relied on two Vermont Supreme Court cases as au-thorities for the law of pews—Howe v. Stephens (1878) and Perrin v. Granger (1860).61 Bartlett v. Munroe, 21 Pick. (Ma.) 98 (1838). 62 Jackson v. Rounseville, 46 Mass. 127 (1842). 63 Mayer v. Temple Beth El, 52 N.Y.St.Rep. 638 (1893). 64 Chapman v. Eddy, 13 Vt. 205, 208 (1841).65 Bakersfield Congregational Society v. Baker, 15 Vt. 119, 129 (1843). 66 Barnard v. Whipple, 29 Vt. 401, 402-404 (1857).67 Kellogg v.Dickinson, 18 Vt. 266, 268 (1846).68 In Kellogg v. Dickinson, Williams also recog-nized the right to a pew by prescription, if the statutory requirements were satisfied. 18 Vt. 266.69 Brattleboro East Society v. Reed, 42 Vt. 76 (1869). 70 Hodges v. Green, 28 Vt. 358, 358-359 (1856). 71 Perrin v. Granger, 30 Vt. 595 (1858); Perrin v. Granger, 33 Vt. 101, 105 (1860).72 O’Hear v. DeGosbriand, 33 Vt. 593 (1861). 73 33 Vt. 593.74 Smith v. Nelson, 18 Vt. 511, 549 (1846).75 Kellogg v. Dickinson, 18 Vt. at 268.

76 HayeS, supra note 1, at 37.77 HemenWay, supra note 31, at 345.78 HemenWay, supra note 23, at 937.79 Bigelow v. Congregational Society of Middle-town, 11 Vt. 283 (1839).80 11 Vt. at 287.81 Howe v. School District No. 3 in Jericho, 43 Vt. 282, 283(1870). 82 43 Vt. at 289.83 43 Vt. at 271-272.84 Frederick P. Cheney wrote a poem, “To the Old Church in West Glover.” Nostalgic and sen-timental, the poem criticized the change of ele-vation of the modern churches.

Thine architecture somewhat ancient is no doubt,And might by facing pews and people “right about”More nearly ape the modern and fashionable style,By letting down your preachers,--pshaw! You must not smile,No levity is meant,--by letting down your preacherSomewhat lower,When he; instead of climbing up aloft, might walk across the floor.

HemenWay, supra note 23, at 209.

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In baseball, the role of the lead-off hit-ter is to get on base by any means possible so heavier-hitting teammates can drive him home with a double, triple, or home run. As the “lead-off hitter” here, I will save the heavy hitting for my colleagues’ forthcom-ing columns on persuasive writing tips, ef-fective organization of briefs, and editing, respectively. I will set the table for my col-leagues’ work by emphasizing the need for lawyers to view themselves as professional writers and to seek out ways of improving their writing throughout their careers.

According to Bryan A. Garner, a prolific and noted legal-writing authority, “Writing is one of the two great skills that will ad-vance your career in law. (The other is peo-ple skills).”1 As an introverted academic, I can offer no tips on improving your “people skills”; you will have to look elsewhere for such help. So this column will address only half of Garner’s observation: the importance to a lawyer of written communication skills.

Mr. Garner is not alone in emphasizing the need for lawyers to write well. Marie Buckley who, like Garner, runs writing work-shops for lawyers, notes, “[N]ow that all law-yers are essentially in the writing business, the ability to write clearly and efficiently has become a survival skill. You cannot be an ef-fective lawyer today if you cannot write.”2 In this environment, it is not good enough merely to communicate; a lawyer must per-suade.3

If judicial evaluations are any indication, few lawyers write persuasively. According to Judge Thomas Reavley of the United States Court of Appeals for the Fifth Circuit, only five-to-ten percent of the appellate briefs he reads help him to resolve the cases in which the briefs were filed.4 Judge Frank Easterbrook of the Seventh Circuit gives the briefs filed in his court even lower marks, noting: “It would be extravagant to say that three percent of the briefs are of a high pro-fessional caliber.”5

The silver lining in this cloud, though, is that amidst all the pedestrian prose judges must read, a brief or memorandum that is clear, concise, and persuasive can stand out and perhaps win a case a lesser effort would have lost. Says Judge Murray Cohen of the

Texas Court of Appeals: “Is good writing rewarded? I used to think it doesn’t mat-ter much, in comparison with legal author-ity, justice, and the like. Now I know better: Good writing is rewarded so automatically that you don’t even think about it.”6

Considering the centrality of writing to the lawyer’s enterprise and the likelihood that judges will reward good writing, law-yers should embrace their status as profes-sional writers and take every available op-portunity to improve their writing, whether they primarily advise businesses, draft leg-islation, or litigate personal injury claims. A smooth writing style improves the sub-stance of the writer’s message consider-ably, and when the style is cumbersome or opaque, substance suffers, making persua-sion, even comprehension, unlikely.7 Keep-ing in mind the intimate connection be-tween style and substance, the rest of this column will assume the reader has accepted the role of professional writer and wishes to perform it effectively. The column will offer some basic tips on improving your writing style, which will surely enhance the power of your arguments, too.

Madman, Architect, Carpenter, Judge: Organizing Your Writing

Charles Alan Wright, the legendary Uni-versity of Texas law professor whose name was synonymous with scholarship on civ-il procedure, once observed: “I never sit down to the keyboard … until I am clear in my mind how I am going to organize what-ever it is that I am doing.”8 Underlying that wise practice is a recognition that, in Marie Buckley’s words, “[r]eading legal writing is work.”9 “All legal writing,” she continues, “is technical writing and our readers are all unwilling captives to our writing.”10

Because most readers of legal writing do not choose to read it, but instead, must read it, the authors should strive to make their writing as clear, concise, and well organized as possible. Toward that end, legal writers should consider adopting a writing process featuring four distinct roles that facilitate creativity, organization, and precision in the final product. The respective roles are Mad-

man, Architect, Carpenter, and Judge.11 During the Madman phase, the writer brain-storms ideas about the potential compo-nents of the planned document and scrib-bles notes identifying those components, not necessarily in a particular order.12 If, in a busy law practice, you have an hour to spend on a writing project, allow yourself ten minutes or so as the Madman to gener-ate ideas your document should address.13

After the Madman has finished scribbling notes, the writer should switch to the Ar-chitect role and devote five minutes of the one-hour endeavor to organizing the Mad-man’s ideas into a logical structure in the form of an outline.14 Once the Architect has built an outline, the Carpenter takes over, using the outline, along with notes derived from careful research, to build a draft docu-ment that addresses each subject identified in the outline in an order designed to help the reader resolve a dispute.15 The Carpen-ter “writes” the document in the most fa-miliar sense of that word, so give the Car-penter at least twenty-five minutes in a one-hour writing project.16

Finally, when the Carpenter’s draft is com-plete, the persnickety Judge takes charge and scrutinizes the draft’s organization, transitions, grammar, and punctuation, that is, everything from the document’s “tone” (excessively strident or meek?) to whether it is unnecessarily repetitive or beset by com-ma splices, misplaced modifiers, or a lack of subject-verb agreement.17 Allow the Judge ten minutes or so to edit the document.18

Leading from the Top: Headings, Paragraphs, and Sentence Structure

The OpeningA legal document should “lead from the

top” with an opening paragraph that iden-tifies the key background facts, the issue to be decided, and the writer’s conclusion about the appropriate decision.19 Like jour-nalists, lawyers should consider carefully the beginning of a legal document. Instead, we often begin with musty boilerplate such as: “Now comes Pantheon Corporation, by and through its attorney, and files this motion for summary judgment,” followed immedi-

Reluctant Literati: Lawyers as Professional Writers

by Brian Porto, Esq.

This is the first in a series of columns on legal writing that will be a regular feature of future issues of the Vermont Bar Journal. The authors, who are members of the Legal Writing Department at Vermont Law School, will draw on their considerable experience as practitioners and teachers of

legal writing to help Vermont lawyers write clearly, concisely, and persuasively.


solidated motion to suppress and dismiss”), then add the information necessary to es-tablish the factual context, the legal issue, and the resolution you favor. The following example orients the court to context and conflict. It was part of a patent-infringement action against Amazon by Pinpoint, object-ing to Amazon’s “recommendation engine,” which offers customers personalized recom-mendations based on their past purchases. It reads as follows:

This is a case about online personal rec-ommendation systems. The inventors of the patents in suit pioneered tech-niques to deal with information over-load. They invented systems and meth-ods to help users sort out the plethora of information available and to help on-line shoppers at the “electronic mall” find items of interest.22

Similarly effective was Ruth Bader Gins-burg’s amicus brief in Regents v. Bakke, the Supreme Court’s historic affirmative action case. The introduction stated:

The issue in this case is not whether the Constitution compels the University to adopt a special admission program for minorities, but only whether the Consti-tution permits the University to pursue that course.”23

ately by the facts of the case, thereby jump-ing to the middle of the document without identifying the context in which the dispute arose.20

The boilerplate is not necessarily prob-lematic, but the author should follow it with a short (i.e., no more than one page) intro-duction that orients the reader to the case. Boilerplate alone, as in the following exam-ple, fails to identify the facts that precip-itated the dispute, the legal nature of the dispute, or the resolution the writer favors. Lawyers who rely on boilerplate write as if the reader has all day to decipher the mean-ing of their prose. Nothing could be farther from the truth, so avoid openings like the following:

The Plaintiffs, Acme Corporation, Bak-er, Inc., and Cary Grant (hereinafter the “Plaintiffs”), commenced this ac-tion for alleged patent infringement of U.S. Patent No. 2,859,137, entitled Vi-sual Enhancement Mechanism (herein-after referred to as the ‘137 Patent’). The Plaintiffs have asserted claims 1 through 3 of the ‘137 patent.’21

Instead, either abandon the boilerplate al-together or restrict it to identifying the doc-ument (e.g., “Now Comes the Defendant, Mary Smith, by her attorney, and files this memorandum of law in support of her con-

Thus, good legal writing leads from the top by explaining right away the facts un-derlying the dispute at hand, the legal issue(s) to be decided, and the writer’s pre-ferred resolution. It does not just promise those goods to the reader by means of a boilerplate opening followed by a detailed discussion of the facts. Instead, it reveals them immediately, in one or more introduc-tory paragraphs.

HeadingsBut leading from the top does not end

with a title that signals a document’s pur-pose and an introduction that paints a viv-id picture of a particular dispute. Rather, it continues with headings revealing the aim of each section of the document and open-ing paragraphs explaining the author’s con-clusion about the subject of the section that paragraph introduces.24 Strong headings, writes Ross Guberman, are like newspaper headlines. They “give you the gist of what you need to know, draw you into text you might otherwise skip, and even allow you a bit of creativity and flair.”25 The test of good headings is whether a reader of your docu-ment could skim them and know why your client should win the case.26

Guberman analogizes the relationship between headings to Russian nesting dolls, colorful wooden figures, each of which con-

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ing resources, such as those cited here. Your efforts will be rewarded because today’s le-gal profession demands that one not only think like a lawyer, but write like a profes-sional writer, too.

____________________Brian Porto, Esq., is Professor of Law at

Vermont Law School.____________________1 bryan a. garner, garner on Language anD Writ-ing 379 (2009).2 marie buckLey, tHe LaWyer’S eSSentiaL guiDe to Writing: proVen tooLS anD tecHniqueS 1 (2011).3 garner, supra note 1, at 40.4 Id. at xxiv.5 Id.6 Id. at 62.7 Id. at 38.8 Id. at 5.9 buckLey, supra note 2, at 5 [Emphasis in origi-nal].10 Id.11 garner, supra note 1, at 4. The inventor of this approach to writing is Dr. Betty Flowers, Profes-sor of English at the University of Texas—Austin. See Betty S. Flowers, Madman, Architect, Car-penter, Judge: Roles and the Writing Process, 44 proceeDingS of tHe conference of coLLege teacHerS of engLiSH 7-10 (1979). 12 Id.13 Id. at 5.14 Id. at 4-5.15 Id. at 4-5.16 Id.17 Id. at 5.18 Id. at 6. According to Bryan Garner, “The rest of the time [approximately ten minutes] you need for short breaks in between, both to step back from the project and to put yourself in the mind of another character.” Id.19 buckLey, supra note 2, at 9-10.20 garner, supra note 1, at xxxi. 21 roSS guberman, point maDe: HoW to Write Like tHe nation’S top aDVocateS 7 (2011).22 Id.23 Id. at 33. See also Regents of the Univ. of Cali-fornia v. Bakke, 438 U.S. 265 (1978).24 buckLey, supra note 2, at 77.25 guberman, supra note 21, at 75.26 Id.27 Id. at 79.28 Id. at 84.29 buckLey, supra note 2, at 77.30 See HeLene S. SHapo, mariLyn r. WaLter, & eLiza-betH fajanS, Writing anD anaLySiS in tHe LaW 205 (6th ed. 2013).31 Id. at 208.32 Id. at 229.33 Id. at 226.34 Id. at 230.35 Nominalizations convert verbs to noun forms ending in –tion, -ment, -ance, -ity, and -sure, among others. See Bryan A. Garner, The Red-book: A Manual of Style (2002), ss. 10.43(a), 13.3(c).36 garner, supra note 1, at 51.37 SHapo, WaLter, & fajanS, supra note 29, at 236.38 garner, supra note 1, at 52.39 Id.40 Id. at 88.41 SHapo, WaLter, & fajanS, supra note 29, at 237.42 Id. at 240.43 guberman, supra note 21, at 58.44 garner, supra note 1, at 297.45 Id. at 55, citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 547 (1978).46 buckLey, supra note 2, at 81, 134.47 Id. at 146.

lents.37 For example, do not write: “There was a disagreement between the parties about whether there had been a final resolu-tion by Judge Bertelsman of Fannin Corpo-ration’s request.”38 Instead, write: “The par-ties disagreed about whether Judge Ber-telsman had finally resolved Fannin Corpo-ration’s request.”39

Word UsageAt the individual-word level, prefer simple

words to fancy ones (e.g., use, not utilize; house, not residence) and concrete words to abstract ones (pay, not remuneration).40 Omit intensifiers, such as clearly or certain-ly, because if a matter is in litigation it is un-likely to be clear or certain, and using an in-tensifier will not clarify it.41 Besides, lawyers have so overused these words, both orally and in writing, that they are almost mean-ingless.

When discussing case facts, write in the past tense, but when discussing a legal proposition, write in the present tense. For example: “The court held that due process requires court-appointed counsel.”42 Omit dates unless you wish to convey the impor-tance of a particular date, such as the end of a limitations period; in place of insignificant dates, use words suggesting the passage of time, such as “next,” “later,” “two years lat-er,” or “just three days earlier.”43 Also omit double (and triple) negatives. They reflect confusion, not erudition, and they are likely to confuse the reader, too. So shun sentenc-es like the following: “The investments need not be revalued at intervals of not more than two years if the trustees and the ben-eficiary do not disagree.” Instead, write: “If the trustee and beneficiaries agree, the in-vestments need not be revalued every two years.”44

Despite their restrictions, these rules leave room for a bit of colloquialism, such as Chief Justice Rehnquist’s use of the term “Monday morning quarterbacking” and other linguistic flourishes.45 I once began a brief in an appeal from a default judgment by quoting Woody Allen’s famous state-ment that “ninety percent of life is showing up.” Legal writing need not be dull, which will be the subject of a future column.

ConclusionFinish your document by reminding the

court what relief you seek or by recommend-ing to the client or a superior what steps to take next.46 Before editing, leave your work for a few hours or a few days, because, as Marie Buckley notes, “[w]riting ferments,” so the more time you leave between writ-ing and editing, the better your editing will be.”47 Editing, and other important writing issues, will be the focus of future columns in this series. I hope this leadoff effort has whetted your appetite for the columns to follow and has inspired you to consult writ-

tains a smaller doll. Just as the dolls be-come smaller when one begins opening them, headings and subheadings become increasingly specific as a document pro-ceeds from introduction to conclusion; yet, like the separate dolls, the individual head-ings and subheadings can be reassembled to create a unified whole.27 Specificity is en-hanced when headings include the word “because,” which alerts the reader to the result the writer favors and why.28

Paragraphs and SentencesThe first paragraph of each section should

explain the author’s conclusion about the subject of that section. Within each para-graph, in turn, the first sentence should summarize the author’s conclusion about the subject of that paragraph.29 It should not “tread water” by using words that fail to advance the argument, thereby necessitat-ing a follow-up sentence. For example, the first sentence below is unnecessary.

This court has had to deal with the issue of a child’s suit for parental consortium. In a recent case, this court has held that the child has no cause of action.

A more effective expression of this idea would be one sentence stating: “Recently, this court has held that a child has no cause of action for loss of parental consortium.”30

Paragraphs should always be less than a page long,31 and sentences should vary in length, but not include more than twenty-five words.32 Sentences are clearest when the character in the sentence (e.g., Judge Jones, the defendant, or the Ways and Means Committee) is the subject, and the verb describes what the character did, does, or should do.33 Write in the active voice by following a subject-verb-object sequence indicating who did what to whom.34 In oth-er words, write that the Ways and Means Committee amended the tax code, not that the tax code was amended by the Ways and Means Committee. Only deviate from this rule when you do not know who the actor was or you want to deemphasize the actor’s identity, such as when your client punched the plaintiff in a bar fight. In the latter con-text, write, “The plaintiff was injured in a bar fight, resulting in this action,” not “My client punched the plaintiff in a bar fight, resulting in this action.”

Similarly, avoid “nominalizations,” which convert assertive verbs to hesitant nouns. Contribute; do not “make a contribution.” Indemnify someone; do not “make a pro-vision for indemnification.” Invest, do not “make an investment.”35 And remember that the defendant violated a restraining order; do not write that he “was in viola-tion of” it.36 Another means of eliminating unnecessary words is to avoid starting sen-tences with “it is,” “there are,” and equiva-

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It is an unfortunate reality that the admin-istration of trusts often results in disputes that must ultimately be resolved in court proceedings. In a typical trust dispute, it is one or more trust beneficiaries seeking to remedy a perceived breach of fiducia-ry duty by a trustee, or otherwise have a trustee removed. As every lawyer knows, litigation is expensive, and these disputes often raise the question of who should bear the cost of the litigation. The Uniform Trust Code includes provisions to address this is-sue. This article explores two primary ques-tions related to litigation between trustees and beneficiaries: which section should ap-ply and what factors should be considered in the analysis? The first part of the arti-cle sets out the relevant provisions of the Trust Code that might apply. Next, I dis-cuss some recent case law on the subject. Finally, I offer my own thoughts and con-clusions.

The Trust Code

In July 2009, Vermont adopted the Trust Code, Title 14A § 101, et seq., which is de-signed to be a comprehensive piece of leg-islation to govern the creation, administra-tion, and termination of express trusts.1 It includes three different provisions relating to the payment of attorney fees. First, sec-tion 706, is narrow in scope and applies only to actions to remove a trustee, and it allows (but does not require) a court to or-der a trustee removed under this section to reimburse the trust for attorney fees spent by the trustee in litigating the action.

Second, section 709 permits a trustee to be reimbursed for expenses in two cir-cumstances: first, for authorized expenses or those that are properly incurred in the administration of the trust—including at-torney fees; second, for reimbursement of expenses “to the extent necessary to pre-vent unjust enrichment of the trust, ex-penses that were not properly incurred in the administration of the trust.” The latter provision applies to expenses that are not properly incurred in the administration of the trust, but result in a benefit to the trust. As noted in the Official Comment, the pur-pose of this provision “is not to ratify the unauthorized conduct of the trustee, but to prevent an unjust enrichment to the trust.”2 With respect to attorney fees, the Official Comment states that “[r]eimbursement under this section may include attorney’s

fees and expenses incurred by the trustee in defending an action. However, a trustee is not ordinarily entitled to attorney’s fees and expenses if it is determined that the trustee breached the trust.”3

The third provision relates to the pay-ment of attorney fees in connection with ju-dicial proceedings. Section 1004 provides that:

In a judicial proceeding involving the administration of a trust, the probate division of the superior court, as justice and equity may require, may award costs and expenses, including reason-able attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

One preliminary inquiry relates to the in-terplay between these three different fee provisions in connection with judicial pro-ceedings or litigation. Clearly, section 706 is narrow in scope and applies only where a trustee has used trust funds to defend an action for removal. If the trustee is re-moved, the court may order that the trust-ee reimburse the trust. Depending on the circumstances, a court might also find that a trustee’s breach was so egregious that the trustee should also pay the attorney fees of the beneficiary bringing the remov-al action, pursuant to section 1004.

Which section applies also may depend on which party is seeking fees. If it is a ben-eficiary, section 709 has no applicability be-cause it relates only to a trustee’s request for reimbursement from the trust. Where it is the trustee, the question becomes

whether the request should be analyzed under section 709, section 1004, or both. The Official Comments offer some discus-sion on the relationship between these two sections.

Recall that section 709 deals with autho-rized expenditures and unauthorized ex-penditures. A trustee is permitted to be re-imbursed for unauthorized expenses only if there is a benefit to the trust and it would be unjust for the trust to have obtained that benefit at the expense of the trustee. Gen-erally speaking, an “authorized” expense is one that is necessary in the administration of the trust.4 By stating that attorney fees expended in the successful defense of an action—i.e., a finding of no breach—may be reimbursed under this section, the Of-ficial Comment suggests (but does not ex-pressly state) that such an expense is an au-thorized expense (as opposed to an unau-thorized expense that benefits the trust).5 I say this because the other option is to con-clude that the fees are unauthorized, but a benefit to the trust, and it is difficult to see how the depletion of trust funds is a benefit to the trust, or that the successful defense of a claim against the trustee is a benefit to the trust.

The Official Comment to section 1004 also discusses the relationship between these two sections, stating that “[w]ith re-spect to a party’s own fees, Section 709 authorizes a trustee to recover expendi-tures properly incurred in the administra-tion of the trust. The Court may award a beneficiary litigation costs if the litigation is deemed beneficial to the trust.”6 Collec-tively, these comments seem to suggest (1)

Attorney Fee Awards in Litigation Between Trustees and Beneficiaries

by Kevin M. Henry, Esq.


if it is a trustee seeking fees, section 709 applies, and if it is a beneficiary then sec-tion 1004 applies; and (2) a trustee must successfully defend an action in order for the fees to be an “authorized” expense un-der section 709.

Once it is determined that section 1004 applies, courts must determine how it is to be applied. This provision is an exception to the American rule that each party to a litigation bear their own attorney fees. On its face, it is very broad and appears to give courts significant discretion to formulate a remedy to address the issue of attorney fees. For the most part, the Official Com-ment to this section provides little guid-ance in its application. It notes that the sec-tion “codifies the court’s historic authority to award costs and fees, including reason-able attorney’s fees, in judicial proceedings grounded in equity.”7 Perhaps the most significant aspect of the Official Comment is with respect to the prospect of ordering one party to pay the fees of another, where it states that “[g]enerally, litigation expens-es were at common law chargeable against another party only in the case of egregious conduct such as bad faith or fraud.”8 This suggests that the Trust Code is departing from common law and setting a lower bar to justify a fee award from one party to an-other. Thus, while it codifies the common law with respect to the authority to award fees, it seems to contemplate a different standard for doing so.

Recent Case Law

One of the first appellate decisions to address the issue under the Trust Code was Atwood v. Atwood,9 a case in which trust beneficiaries sued a trustee for misman-agement of trust funds, seeking his remov-al and damages.10 Specifically, the benefi-ciaries alleged a breach of duty for failing to properly diversify the trust portfolio.11 On the merits of the claim, the trial court granted summary judgment in favor of the trustee based on the fact that the trust ex-pressly gave him broad discretion and ex-onerated him from claims of mismanage-ment of investments, and this decision was upheld on appeal.12

On the issue of the trustee’s attorney fees and expert witness expenses, the trial court ordered that they be paid from the trust. On appeal, the trustee argued that this decision should be upheld because he was entitled to be reimbursed for his attor-ney fees and expenses under the general powers of trustee provision of the Okla-homa code, which allows trustees to hire attorneys and other agents in connection with the administration of the trust (section 709), and under section 1004.13 The court determined that the general provision did not apply with respect to “litigation-

related expenses” because “the action is against the Trustee for alleged breaches of the Trust and for removal so that the out-lays are for the benefit of the Trustee as op-posed to protection of the Trust.”14 Rath-er, the court held, it is section 1004 that applies, finding that this provision “serves to eliminate the foregoing distinction.”15 Citing a pre-Trust Code case standing for the proposition that a trustee is not enti-tled to be reimbursed for attorney fees un-less there is a benefit to the trust, the court explained that section 1004 “has changed that result.”16

Interpreting the phrase “as justice and equity require,” the court concluded that it “serves two functions, first as a criteri-on for entitlement and second, as a mea-sure of the size of the award.”17 Further, the court explained that “[t]he highly sub-jective phrase ‘justice and equity’ … con-notes fairness and invites flexibility in order to arrive at what is fair on a case by case basis.”18 Drawing from other types of cas-es that provide nonexclusive guidelines for awarding fees, the court applied the fol-lowing five factors to the analysis:

(a) reasonableness of the parties’ claims, contentions, or defenses; (b) unnecessarily prolonging litigation; (c) relative ability to bear the financial burden; (d) result obtained by the liti-gation and prevailing party concepts; and (e) whether a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons in bringing or con-duct of the litigation.19

Ultimately, the court concluded that the trustee was entitled to recover fees and ex-penses, based primarily on the notion that the trustee was the prevailing party. In do-ing so, the court stated that “when a par-ty prevails in a judicial proceeding contem-plated by [section 1004], then that is suffi-cient to invoke the discretionary authority granted in Section [1004], so that the trial court may then decide whether justice and equity warrant assessment of fees, expens-es, and costs.”20 This holding suggests that a trustee seeking litigation-related expens-es must be a prevailing party before invok-ing this provision, or to even have the court consider whether “justice and equity” re-quires an assessment of fees. Such a hold-ing would seem to conflict with the notion that prevailing party status is but one of the factors to be considered. Accordingly, a better reading of this holding is that pre-vailing party status is neither a prerequisite requirement nor guarantee, but will entitle a party to further consideration.

Next, the court addressed the issue of whether expert witness fees are recover-able “expenses” in light of the fact that the general rule is that “a party is not enti-

tled to recover expert witness fees as costs in litigation.”21 Given the equitable nature of trust proceedings and the fact that the term “expenses” has been given a more liberal interpretation by courts sitting in equity, the court held that “the word ‘ex-penses’ in Section [1004] [includes] expert witness fees.”22

In sum, the court in Atwood decided three important issues with regard to at-torney fees and expenses under the Trust Code. First, when it is a trustee seeking fees under section 1004, it is not necessary that the fees were incurred for the benefit of the trust as required by section 709 and many common law decisions. Second, the court set forth a five factor standard for in-terpreting section 1004’s “justice and eq-uity” language. Finally, the court held that litigation-related expenses may include ex-pert witness fees.

Earlier this year, the Iowa Supreme Court considered the award of attorney fees un-der section 1004 for the first time in In the Matter of Trust #T-1 of Mary Faye Trimble (In re Trimble).23 There, one of the sixteen trust beneficiaries (Miller) filed a petition to compel an accounting for the time period prior to the death of the grantor and also sought attorney fees pursuant to section 1004.24 The trustee answered and asserted that the beneficiaries had no right to an ac-counting for this time period because the grantor was alive and retained the power to revoke the trust.25 Fourteen of the ben-eficiaries joined the trustee’s answer, and none joined Miller’s request.26 In a sepa-rate action, a temporary administrator of the estate was appointed (Wibe) at Miller’s request, who also sought an accounting for the period prior to the grantor’s death.27 In response, the trustee provided Wibe with the bank records that had been provid-ed to the grantor prior to death.28 Subse-quently, the parties engaged in litigation regarding the sufficiency of the accounting and the probate court ordered the trustee to supplement the accounting, which she did.29 Once provided, there were no signifi-cant objections.30

The probate court concluded that the trustee was obligated to provide an ac-counting and further ordered that the trust-ee personally pay the attorney fees of Mill-er and Wibe, as well as her own fees stat-ing that the trust beneficiaries should not “bear the expense because ‘the question was one which a prudent trustee should not have debated at all, and certainly not at the expense of the trust beneficiaries.’”31

On appeal, the court reversed the pro-bate court’s ruling on the merits holding that “[a] trustee owes no accounting to beneficiaries while the trust is revocable [and] should not face retroactive account-ing duties for the same period upon the settlor’s death.”32 With respect to attorney

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fees, the court began its analysis by not-ing that no prior Iowa decision has required a trustee to personally pay a beneficiary’s attorney fees absent a breach of fiduciary duty.33 Next, the court adopted the five At-wood factors as the “criteria in interpreting what justice and equity require under sec-tion [1004].”34

The court went on to hold that, in a case in which a trustee is seeking fees, section 709 “provides the court with other fac-tors to consider” and thus, courts “should first consider whether the expenditures were properly incurred in the administra-tion of the trust or otherwise benefited the trust.”35 In this case, the court held that “Miller does not contend section [709] de-feats Cunningham’s right to reimburse-ment, so we move on to consider section [1004].”36 This holding is contrary to that of Atwood because, there, the court held that litigation related expenses are governed by section 1004, and not section 709.

Having adopted the Atwood factors, the court held that the probate court ap-plied the wrong legal standard by measur-ing the trustee’s decision not to provide an accounting against the “prudent trust-ee” standard.37 Applying these factors, the court first considered the “reasonableness of the parties’ claims, contentions, or de-fenses” and noted that the probate court

acknowledged that the trustee’s position “was at least debatable” and because she ultimately prevailed the court found that her position was reasonable.38 Likewise, the court also found that the fourth factor—re-sults and prevailing party concepts—also weighed in favor of the trustee.

Next, the court considered whether the trustee unnecessarily prolonged the litiga-tion and noted that the trustee could have simply provided the accounting when re-quested and avoided the litigation alto-gether, but also considered that she “was within her rights to withhold the account-ing for the period the trust was revocable, and the accounting ultimately showed no malfeasance.”39 While the court concluded that the accounting should have been pro-vided to Wibe more quickly, it found that the failure to do so did not “unnecessar-ily prolong the litigation to an extent that warrants requiring her to personally pay at-torney fees.”40

With respect to the ability to bear the fi-nancial burden, the court did not consid-er this factor because there was no breach of duty.41 Finally, the court considered the issue of bad faith. It noted the probate court’s finding that the trustee’s refusal to provide an accounting “was ‘grounded on pre-existing animosity,’” but gave this con-clusion little weight stating that “regard-

less of her personal motive’s, [the trustee’s] position that no such accounting was owed was based on a reasonable and ultimate-ly correct interpretation of the Iowa Trust Code.”42 For these reasons, the court or-dered that the trustee’s fees be paid by the trust.

As for the attorney fees of Wibe, the court stated that this was a closer question because, having stepped into the shoes of the decedent, he, unlike the beneficiaries, was entitled to an accounting for the pe-riod prior to death.43 Because the trustee provided Wibe with the relevant bank re-cords, the court concluded that this was really an issue regarding the format of the accounting and, on balance, determined that the information provided to Wibe was close enough to an accounting for that pe-riod such that the trustee did not act “so unreasonabl[y] as to require her to pay Wibe’s fees” and that they should be paid by the trust.44 Finally, the court ordered Miller to bear her own attorney fees, not-ing that fourteen of the sixteen beneficia-ries did not side with her in the dispute, and her litigation was ultimately unsuccess-ful.45

In another case decided earlier this year, the New Hampshire Supreme Court, in Shelton v. Tamposi,46 considered whether the superior court abused its discretion in

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holding a trustee personally liable for attor-ney fees where the trustee’s role in the liti-gation was in her capacity as trustee, and if so, whether voluntary intervenors were properly awarded fees in light of the fact that they joined the litigation voluntarily.

The facts in Shelton involved a com-plex family trust established by the father of six children.47 Upon his death, the trust was subdivided into twelve trusts—one for each child and their issue.48 The trust di-rected that two of the children—Sam, Jr., and Steve—serve as investment directors for all twelve trusts.49 A long-running dis-pute between Sam and Steve and two oth-er siblings—Betty and Nick—resulted in a settlement whereby Betty and Nick were able to appoint their own trustees for their trusts and Sam and Steve resigned as in-vestment directors for all but ten assets held in their sub-trusts.50 Betty appointed Julie Shelton as her trustee.

Within approximately eight months of the settlement, Shelton and Betty filed a complaint seeking to (1) separate or “de-couple” the assets of Betty’s trust from the other sub-trusts, (2) remove Sam and Steve as investment directors, (3) surcharge them for losses, and (4) award them attorney fees.51 Two other children—Michael and Celina—intervened in the action in support of Sam and Steve.52

After a five-week trial, the superior court concluded that the complaint was meritless and essentially frivolous and ill-advised.53 In short, it was a waste of resources for all in-volved. Not only did the superior court dis-miss the complaint, it concluded that Betty had violated the in terrorem clause of the trust and ordered Shelton and Betty to pay the attorney fees of the respondents (Sam and Steve) and the intervenors (Michael and Celina) in an amount to be determined at a further hearing.54

Shelton and Betty appealed the deci-sion of the superior court, with Betty lat-er withdrawing her appeal. With respect to attorney fees, the court began its analysis by stating that “when acting in the prop-er exercise of her official duties, a trustee should not generally be held personally li-able under the Uniform Trust Code for at-torney’s fees incurred by any party.”55 That said, the court noted that section 1004 of the Trust Code conveys broad authority to award “fees to any party ‘to be paid by an-other party’ ‘as justice and equity may re-quire’” as determined on a case-by-case basis.56 Further, the court explained “that the words ‘as justice and equity may re-quire … establish a broad standard, one that certainly reaches beyond bad faith or wrongful conduct.’ Nevertheless, before an award of fees is made, the trial court must provide a reason, grounded in equity, as to why such an award should be made.”57 Accordingly, the court concluded that the

statute does “under certain circumstances” authorize the award of fees against a trust-ee personally.58 The court then concluded that it is also permissible for a court to or-der that the intervenors’ fees be paid, de-spite the fact that they joined the litigation voluntarily, on the theory that all beneficia-ries are impacted by the litigation.59

Having concluded that Section 1004 per-mits a court to order that a trustee is liable for the attorney fees of another party, the court did not have any trouble in upholding the superior court’s decision to do so in this case, noting that the superior court made extensive findings and rulings that the lit-igation was a breach of Shelton’s fiducia-ry duties and brought in bad faith. Accord-ingly, it held that “the trial court sustain-ably exercised its discretion in concluding that justice and equity require that Shelton, rather than the innocent beneficiaries of the trust, bear the burden of paying fees to the parties based on her own bad faith.”60

Shelton was an example of a case involv-ing sophisticated parties, a complex set of trusts and sub-trusts, and millions of dollars at stake. The facts were just the opposite in Garwood v. Garwood, a case decided by the Wyoming Supreme Court in 2010.61 In Garwood, a seemingly unsophisticated couple was sold a “Revocable Living Trust ‘kit’ from a door-to-door salesman,” de-spite the fact that their assets were well below the federal estate tax exemption.62 They created a trust and transferred their home into the trust. In 2005, Mrs. Garwood passed away, resulting in the creation of the Martial Trust and the Family Trust.63 Mr. Garwood was the trustee of the Mari-tal Trust and the three children were trust-ees (and beneficiaries) of the Family Trust.64 The division of assets and formalities of the trust were ignored until 2006 when Mr. Garwood sought to sell his house to raise funds to live on.65 The problem was that the house was held in the Family Trust and two of the three children, as trustees, objected to the sale.66

An action was filed in the district court by Mr. Garwood seeking liquidation of the house in order to fund his living expenses, and the trustees counterclaimed for an or-der directing Mr. Garwood to repay the trust a sum of money that they alleged was expended in violation of the terms of the trust.67 The court ordered Mr. Garwood to repay $21,000 to the Family Trust and di-rected the trustees to sell the home to fund Mr. Garwood’s living expenses.68 This deci-sion was upheld on appeal.69

While the district court’s order was on appeal, several motions and applications were filed with the district court. First, Mr. Garwood filed an application for the pay-ment of attorney fees in the amount of $20,559.85 pursuant to section 1004, to which the trustees objected.70 Second, Mr.

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sGarwood filed an application with the court seeking an order that the trustees make payments to him in the amount of $58,300 for the purchase of a wheelchair, hearing aids, and an a wheel chair accessible van.71 Again, the trustees objected, primarily on the grounds that this request, together with the payment of attorney fees, would consume all of the trust funds.72 Next, Mr. Garwood filed an application seeking the payment of $5,000 to $7,000 for attorney fees in connection with the pending appeal of the district court’s first order.73 The dis-trict court granted Mr. Garwood’s request for attorney fees and costs in the amount of $24,220 and denied the application for payment of expenses for the wheel chair and other equipment.74

The trustees, Mr. Garwood’s children, appealed the decision and filed a motion to stay the order pending appeal.75 At the same time, they informed the court that only $17,666 remained in the Family Trust.76 They further informed the court that the trustees had used Family Trust funds to pay their own litigation expenses, which amounted to approximately $50,000.77 This led to a motion by Mr. Garwood seeking recovery of the attorney fees paid for the benefit of the trustees, and for the removal of two of the trustees.78

The district court ordered that the trust-ees repay of all but $10,000 of the fees to the trust. In doing so, the district court concluded that it was appropriate to spend $10,000 “and after that, the whole purpose of the trust became undermined by what should have been done to assure that the great majority of the money go to Mr. Gar-wood … [t]he remaining [funds] were fees incurred by the trustees for representation of their personal interests … ”79 On appeal the trustees argued that the fees were in-curred “as an ordinary expenditure in the course of administering the trust” and the district court abused its discretion by al-lowing only $10,000 to be paid from the trust.80

The Wyoming Supreme Court began by stating that “a trustee should not be per-sonally liable for litigation expenses with the proper exercise of its official duties … however, [we] do not believe that the only way to honor a trustee’s ability to defend or prosecute appropriate legal actions is to allow the trustee unfettered discretion over payment of litigation expenses.” Rather, the trial court is authorized to determine if fees were properly incurred, and if so, what is a reasonable amount.”81

Next, the court considered whether to apply the more general provisions of sec-tion 709, or section 1004 and concluded that section 1004 “is more specific to the question of litigation expenses and there-fore controls over the general UTC provi-sions authorizing a trustee to defend claims

and pay expenses related to trust adminis-tration.”82 The court then adopted the At-wood factors as the criteria for determin-ing whether the district court’s decision and determine if there was an abuse of dis-cretion.83

Having adopted the Atwood factors, the court did not separately apply each fac-tor. Rather, it focused on the overall cir-cumstances of the case stating that it is “unfortunate that Mr. and Mrs. Garwood were persuaded to execute trust instru-ments that clearly were of no use to them … [and] that it was the intention of both Mr. and Mrs. Garwood that their estate would be available in its entirety to the surviving spouse until death, and that the focus of Trustees Orlan Garwood and Carol Jones was wholly on their own financial interests rather than fulfilling the clear intentions of their parents as reflected in the trust docu-ments.”84 The court went on to hold that there was no abuse of discretion given that the litigation did not benefit Mr. Gar-wood or the Family Trust.85 Thus, the court seemed to focus on the question of wheth-er the litigation expenses resulted in a ben-efit to the trust, despite holding the Sec-tion 1004, and not Section 709 is the appli-cable provision of the Trust Code.

Thoughts and Conclusions

In my view, there are two overall conclu-sions to be reached from the review of the Trust Code and these cases. First, the five Atwood factors have been well received and appear to be the preferred criteria to apply in the section 1004 “justice and eq-uity” analysis. And for good reason. These factors capture the essence of the equita-ble analysis that a court must conduct in or-der to arrive at a result that is fair and just. With that said, courts should not feel con-strained to apply only the five Atwood fac-tors given the equitable nature of the anal-ysis. The facts and circumstances of a given case may dictate that additional factors be considered.

Second, there remains some uncertain-ty with respect to the role of section 709, at least when it is a trustee that is seeking fees in connection with litigation. For ex-ample, the court in Garwood specifically considered the question of which section should apply in connection with the trust-ees request to have fees paid by the trust and concluded that section 1004 was ap-plicable and not section 709. Having so concluded, the court adopted the Atwood factors and based its decision entirely on the conclusion that the fees were not ex-pended for the benefit of the trust, which is a section 709 analysis. Similarly, the Iowa Supreme Court, in In re Trimble, also held that section 1004 was the relevant section, yet suggested that a beneficiary could de-


feat a trustee’s claim for fees paid by the trust by demonstrating that there was no benefit to the trust—a section 709 analysis. Conversely, the court in Atwood held that section 1004, in effect, trumps section 709 where the question relates to litigation ex-penses, and eliminates the distinction be-tween expenses that benefit the trust and those that do not.

I would argue that, in the context of liti-gation between a trustee and a beneficia-ry, any confusion regarding the relationship between section 709 and 1004 is unneces-sary and the Atwood court got it right: Sec-tion 1004, and only section 1004 should ap-ply. I reach this conclusion for two reasons.

First, applying both sections when it is a trustee who is seeking fees results in an unwarranted modification of section 1004, and a somewhat tortured application of section 709. Section 1004 is modified be-cause, alone, it allows a court to award fees to “any party” to be paid by “another par-ty or from the trust,” “as justice and equity may require.” Applying section 709 when it is a trustee seeking fees effectively chang-es the language of section 1004 to include an exception, whereby the trustee must first show that the fees were, as the Court in In re Trimble put it, “properly incurred in the administration of the trust or otherwise benefited the trust.”86

The “torture” of section 709 results from trying to characterize litigation fees and ex-penses as trust administration expenses or having benefited the trust. As noted previ-ously, clearly the depletion of trust funds is not a benefit, and it seems difficult to con-clude that the vindication of the trustee is a benefit to the trust.87 It is similarly awk-ward to say that litigation fees and expens-es in an action against a trustee are trust administration expenses—at least in terms of what is typically considered so.

This issue is most prominent in the case in which a trustee is sued by a beneficiary and successfully defends the action. Most would agree that it would be inequitable for a trustee wrongly accused of a breach to bear his or her own fees in this circum-stance. Presumably, this is why the Official Comment to section 709 says that “[r]eim-bursement under this section may include attorney’s fees and expenses incurred by the trustee in defending an action. How-ever, a trustee is not ordinarily entitled to attorney’s fees and expenses if it is de-termined that the trustee breached the trust.”88 This is also presumably why the Of-ficial Comment to section 1004 states that “[w]ith respect to a party’s own fees, Sec-tion 709 authorizes a trustee to recover ex-penditures properly incurred in the admin-istration of the trust.”89 Taken together, it seems that the drafters intended for courts to conclude that the successful defense of an action is an authorized trust administra-

tion expense in order to avoid this unjust result.

To say that a successful defense is trust administration and an unsuccessful defense is not, strikes me as an artificial distinction that is crafted only to avoid the potential inequitable result of applying section 709, which leads me to the second reason: sec-tion 1004 is simply better suited to achieve the right result in every circumstance. When a trustee is sued by a beneficiary the outcome is often a blend of success and failure for the trustee. In other words, the trustee is not always clearly right or clear-ly wrong. For example, a trustee might be found to have breached a duty, or that it is best for him or her to be removed, while also finding that the trustee acted in good faith, or that the question is a very close call. In this circumstance, a court might conclude that justice and equity dictate that the trustee’s fees should be paid by the trust because he or she was doing what they thought was appropriate.90 This is par-ticularly true given the nature of the trustee position and the difficulty of the task in bal-ancing the duties imposed upon them. As explained long ago by Justice Cardozo, a trustee owes “a duty to the estate to stand his ground against unjust attack [and resist] an attempt to wrest the administration of the trust from one selected by the testator and to place it in strange hands.”91

By applying the artificial bright line of successful defense versus unsuccessful de-fense, a court is unnecessarily handcuffed. Conversely, not applying section 709 does nothing to impede a court from ordering that a trustee pay his or her own fees.

Further, section 1004 is also better equipped to deal with the situation in which there are multiple beneficiaries and some bring an ill-advised action against a trust-ee, who successfully defends the claim. If analyzed under section 709, the remedy is for the trustee to be reimbursed from trust funds, which is a detriment to those benefi-ciaries who did not agree with the decision to bring the action. Here again, section 1004 provides the court with more flexibil-ity and permits an order that the benefi-ciaries who brought the action must reim-burse the trustee.92

In sum, the application of both sections is inconsistent with the rule of statutory construction that states that two statutes involving the same subject matter should be construed harmoniously whenever pos-sible.93 While the application of section 709 might work just fine in some circumstances, in many cases, it creates a situation in which the court is forced to squeeze a round peg into a square hole. Rather, I would argue that harmony is achieved by applying each section in the appropriate circumstance: section 1004 in judicial proceedings involv-ing the administration of a trust, and sec-

tion 709 when analyzing a trustee’s expen-ditures in all other circumstances. I would also agree with the Court in Garwood, that this approach is consistent with the princi-pal of statutory construction that the more specific statute (applying to litigation) con-trols over the more general.94 In apply-ing section 1004, courts should find the five factors set forth in Atwood as a useful (though not exclusive) guide to reach the appropriate result in each case.

____________________Kevin M. Henry, Esq., is a litigation attor-

ney with Primmer Piper Eggleston & Cra-mer PC. He represents clients in connec-tion with probate and commercial litigation matters.____________________1 See 14A V.S.A. § 102. The Vermont Trust Code uses the same section numbers as the Uni-form Trust Code. For ease of reference I refer to each section in their short form—i.e., “section ____”, and where I discuss cases from other ju-risdictions that have adopted the Uniform Trust Code using different section numbers, I insert the Vermont (and Uniform Trust Code) section numbers. 2 14A V.S.A. § 709, Official Comment. The Of-ficial Comment further notes that a court “may delay, or even deny reimbursement of expens-es which benefitted the trust” in appropriate cir-cumstances, considering “(1) whether the trust-ee acted in bad faith in incurring the expense; (2) whether the trustee knew that the expense was inappropriate; (3) whether the trustee rea-sonably believed the expense was necessary for the preservation of the trust estate; (4) wheth-er the expense has resulted in a benefit; and (5) whether indemnity can be allowed without de-feating or impairing the purpose of the trust.” (citing Restatement (Second) of Trusts § 245 cmt. g (1959)).3 Id. 4 See 14A V.S.A. § 709, Official Comment.5 See id.6 14A V.S.A. § 1004, Official Comment.7 Id. 8 Id. 9 25 P.3d 936 (Okla. Ct. App. 2001).10 See id. at 940.11 See id.12 See id. at 945.13 See id.at 946. Section 1004 of the Trust Code is codified in the Oklahoma statutes at 60 O.S. Supp. 2000 § 175.57(D) and is identical to sec-tion 1004. 14 Id. at 947.15 See id. 16 Id. 17 Id. I would argue that this phrase also relates to the question of who pays—the trust or the parties.18 Id. 19 See id. 20 Id. at 948.21 Id. at 949. 22 Id.23 2013 Iowa Sup. LEXIS 8.24 See id., at *5-6. Section 1004 is codified in the Iowa Code at 633A.4507.25 See id. 26 See id.27 See id. at 7-8.28 See id. 29 See id. at 10.30 See id.31 Id. at 12.32 Id. at 36-37.

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89 14A V.S.A. § 1004, Official Comment. 90 Interestingly, Utah has supplemented sec-tion 1004 of the Uniform Trust Code with a sub-section providing that “[i]f a trustee defends or prosecutes any proceeding in good faith, wheth-er successful or not, the trustee is entitled to re-ceive from the trust the necessary expenses and disbursements, including reasonable attorney’s fees, incurred.”Utah Code § 75-7-1004. 91 Jessup v. Smith, 223 N.Y. 203, 207 (1918).92 It is true that this same result can be achieved by applying both sections. A court might hold that the trustee is entitled to reimbursement un-der section 706 and also hold that section 1004 dictates that the fees be paid by the offending beneficiary and not the trust. However, there is no reason to blend the statutes in this way be-cause section 1004 does both. 93 See e.g., DelSanto v. Hyundai Motor Finance Co., 882 A.2d 561, 562 n. 2 (R.I. 2005) (“It is a fundamental principle of statutory interpretation that every effort is to be made to harmonize stat-utes.”); Maryland State Police v. Warwick Supply & Equip. Co., 624 A.2d 1238 (Md. 1993) (“when construing two statutes that involve the same subject matter, a harmonious interpretation of the statutes is ‘strongly favored.’”). 94 See Garwood, 233 P.3d at 985; see also In re Clifford, 2012 VT 95, ¶9 ( 2012) (“When constru-ing statutes and regulations, specific provisions ‘generally trump more general ones.’”) (citations omitted).

33 See id. at 38.34 Id. at 42. 35 See id. at 42-43. 36 Id. at 43.37 See id. at 43.38 See id. at 45.39 See id.40 Id. 45-46.41 See id. at 46.42 Id. at 47.43 See id. at 48. 44 See id. at 48.45 See id. at 49. 46 2013 N.H. LEXIS 3.47 See id. at *2-3.48 See id. 49 See id. 50 See id. at *4-5.51 See id. at *5-6.52 See id. 53 See id. at *8, 20-21.54 See id. 55 Id. at 23-24. 56 See id. 57 Id. at 23 (quoting In re Estate of King, 455 Mass. 796, 920 N.E.2d 820, 827 (Mass. 2010).58 See id. 59 See id. 60 Id. at 25-26.61 233 P.3d 977 (Wyo. 2010).62 See id. at 980. 63 See id.64 See id. 65 See id. 66 See id.

67 See id.68 See id. at 981.69 See id. 70 See id. Section 1004 is codified in the Wyo-ming Statutes Annotated § 4-10-1004. 71 See id. at 981.72 See id. 73 See id. 74 See id. 75 See id.76 See id. 77 See id. 78 See id. at 982.79 Id. at 983.80 See id. at 985.81 Id. 82 Id. 83 See id. 84 Id. 85 See id. at 987. Given the findings by the dis-trict court it seems remarkable that it allowed even $10,000 of the legal fees to be paid by the trust as the litigation was clearly an effort by Mr. Garwood’s children to withhold much needed funds from their father, solely to preserve the as-sets for themselves. 86 2013 Iowa Sup. LEXIS 8 * 43. 87 That said, some courts have done just that by holding that “[i]t is well-established that the good faith defense of a lawsuit to remove a trustee falls within the ambit of actions that up-hold the trust and preserve the trust property.” Bernheimer v. First Nat’l Bank of Kansas City, 225 S.W.2d 745, 844 (Mo. 1949). 88 Id.

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Working with sexual offenders presents several unique challenges. Better under-standing this population, including treat-ment and legal options, will enable an at-torney to represent the individual in a way that benefits both the community and the defendant.

This article will focus on the definition of a sex offender, treatment options, and legal considerations (such as civil commit-ment), with a particular focus on evidence-based treatment and Vermont’s approach to sex offender management.

Defining the Sex Offender

The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), defines paraphilia as recurrent sexual fan-tasies, urges, or behaviors involving non-human objects, suffering or humiliation, children, or other non-consenting persons. Those who most frequently seek psychiat-ric treatment for sex offenses are those ac-cused of or involved in child molestation, voyeurism, exhibitionism, fetishism, frot-tage (rubbing up against an unsuspecting person for sexual gratification), and pub-lic masturbation.1 The term sex offender is used to refer to an individual who has been legally convicted of a sex offense. The is-sue with the term “sex offender” is that it doesn’t provide any context regarding the offender’s reason for committing the sexu-al offense, nor does it indicate whether the individual has been diagnosed with para-philia.

Recent changes to sex offender legisla-tion in certain states have mandated treat-ment for offenders deemed “sexually dan-gerous” or “sexually violent” in psychiatric hospitals as civilly committed individuals. Vermont does not have a civil commitment statute. Civil commitment legislation has fueled long-standing debates on the diag-nosis of paraphilias, the nature of mental ill-ness, and the treatability of sex offenders.2

Treatment of Sex Offenders

The efficacy of sex offender treatment is unknown. While several studies comparing treated and untreated sex offenders have been conducted, the findings have been criticized due to issues such as sample se-lection, study design, and outcome mea-sures. Most treatment efficacy studies are conducted with incarcerated or civilly com-mitted offenders as the subjects. Those individuals who are incarcerated or civil-ly committed represent a unique popula-

tion with treatment outcomes that may not generalize to the non-incarcerated or com-munity-residing sex offender.

In addition, many studies do not differ-entiate between types of offenders. For example, a study that evaluates child mo-lesters may not differentiate between in-tra-familial and extra-familial offenders. Re-search suggests that incest offenders reoff-end at approximately half the rate of extra-familial child molesters.3

A well-designed study of treatment effi-cacy in sex offenders would compare treat-ed offenders with a matched, randomly as-signed control group. However, the ethi-cal and public safety implications of such a study render it impossible. Sex offenders are heterogeneous and, when this is not recognized, it is difficult to make compari-sons among treatment efficacy studies.4

The determination of treatment success in sex offenders is typically arbitrarily de-fined. Investigators have not agreed upon a standardized measurement of improve-ment. Although all treatment studies re-port sex offender recidivism, recidivism is measured in various ways. Some studies measure recidivism based on an offend-er’s self-report, whereas other studies de-fine recidivism based on an offender’s ar-rest records.

Studies measuring sexual arousal by penile plethysmography (circumferen-tial measurement of penile tumescence as a measure of sexual arousal) define im-provement as a reduction in deviant sexu-al arousal. In analysis by Hanson and Bus-siere, erections to children stimuli (as mea-sured by penile plethysmography) was the factor most highly correlated to recidivism in over 28,000 sex offenders.5 However, the use of penile plethysmography is not wide-ly accepted by the scientific community be-cause of the lack of reliability between the different types and models of plethysmo-graphs in addition to debate over the va-lidity and appropriate use of penile pleth-ysmography.6

The scientific literature is clear that more and better studies need to be conducted in order to answer the question of wheth-er treatment works for sexual offenders. Nonetheless, the evidence supporting ef-fective treatment for general offenders is strong, including large numbers of studies.7

Psychosexual Evaluation

Prior to treatment, individuals should un-dergo a psychosexual evaluation. The psy-chosexual evaluation is a complete psychi-

atric and sexual behaviors assessment that includes a clinical interview, self-assess-ment instruments, and laboratory testing. Some individuals may be referred for ob-jective testing such as a penile plethysmo-graph, which measures penile circumferen-tial change in response to sexual stimuli.

The psychosexual evaluation is used to guide the offender’s treatment by identi-fying the sexual problem (diagnosis), risk factors for reoffending, and the offender’s readiness for treatment. Risk assessment instruments or actuarials are risk predic-tion instruments designed to estimate the probability of sexual and violent reconvic-tion in sex offenders. These tools, in con-junction with clinical interviews, increase the predictive accuracy in assessing sex of-fender risk. These tools have become the standard of care in the prediction of sex of-fender recidivism.

Psychosexual evaluations can provide valuable information to attorneys repre-senting sex offenders. Psychosexual eval-uations can identify the offender’s risk for recidivism as well as identifying ways to re-duce the risk through treatment. Psycho-sexual evaluations are commonly used in mitigation when they provide low-risk find-ings or identify treatable reasons for sexual offending.

Treatment Options

Research has shown that the most effec-tive course of treatment is a combined ap-proach that includes biological and psycho-logical therapies. Typically, treatment in-cludes at least one of these elements:

Biological treatment: The scientific basis of biological treatment in sex offenders is the reduction of sexual behaviors by de-creasing sexual arousal. The earliest and most studied treatment of sexual offenders is based on the principle of decreasing sex-ual arousal by decreasing testosterone lev-els. Testosterone strongly influences both male and female sexual drive and the re-sultant sexual behavior.8 Early studies were conducted on surgically castrated offend-ers. Surgical castration has largely been re-placed by chemical castration, the use of testosterone lowering medications to cre-ate a castration state.

This includes antiandrogen treatment, which blocks production or interferes with the action of male sex hormones or hor-monal treatment that causes a lowering in testosterone production by negative inhi-bition through the hypothalamus. SSRIs

Sex Offenders and the Lawby Renee Sorrentino, M.D.


(Selective Serotonin-Reuptake Inhibitors) are another pharmacologic treatment op-tion. While SSRIs might be well known due to their use in treating depression, anxiety disorders and some personality disorders, they have also been shown to be effective in reducing paraphilic symptoms in certain patient populations.

Psychological and behavioral treatment: Psychological approaches to the treatment of sex offenders focus on direct treatment approaches to modify offenders’ cogni-tions and attitudes. Cognitive approaches described the concept of cognitive distor-tions (minimizations, excuses, justifications) as one factor that may maintain offender behavior.9

Cognitive-behavioral therapy: This can be an effective treatment for offenders, ac-cording to research. An offender prevents relapse by the identification and arrest of the thoughts and actions that lead to sex-ual offending.

The early models of psychological treat-ment for sex offenders were based on re-lapse prevention. Relapse prevention mod-els were focused on identifying high-risk situations that could lead to relapse and on eliminating deviance. However, review of the relapse prevention models of treat-ment failed to consistently demonstrate ef-ficacy. Recent research in the field of sex offender treatment rejects the relapse pre-vention model.10

The most recent adopted model of sex offender treatment in the United States and Canada is the “Good Lives” model. The Good Lives model is a strength-based perspective concerned with promoting of-fenders’ goal alongside managing their risk.11 Preliminary data has demonstrated the effectiveness of the Good Lives Model.

The modification of an individual’s be-havior is achieved by altering individual re-actions to stimuli through positive and neg-ative reinforcements. These reinforcements condition an individual by reinforcing posi-tive behaviors and extinguishing negative behaviors. More specifically, the behavioral techniques used to control sexual arousal employ aversion therapy such as bad odors or unpleasant visual images. Masturbatory satiation also helps extinguish deviant sex-ual arousal and reinforce appropriate sex-ual arousal. In the United States, over half of all programs use one or more behavioral sexual arousal control techniques.12

Recidivism rates from cognitive and be-havioral treatment programs range from 3% to 31% depending on the study.13 In a meta-analysis by Hall, it was found that cognitive-behavioral treatment and antian-drogen treatment were comparable in their treatment effects and significantly more ef-fective than behavioral treatment alone.14

Effectiveness of Treatment Models

There is inadequate research to identify which treatment model is the most effec-tive. However, many studies suggest that the combination of medication and therapy results in the most significant reduction in sex offender recidivism.

Current models of treatment are based on the principles of treating the highest risk individuals by targeting characteristics that have been shown to relate to reoffending.

The treatment of individuals with para-philias and sex offenders has primarily fo-cused on two areas: cognitive-behavior group treatment and pharmacologic treat-ment. A survey conducted by the Safer So-ciety in 2009 asked sex offender treatment providers to identify the treatment models that were part of their program. The results revealed that 86% or more of programs in the United States utilized the cognitive-be-havioral model of treatment.

Relapse prevention was the second most-endorsed model. The self-regulation and Good Lives models were utilized by one-third of the US programs. According to the survey, physicians prescribed SSRI medications in 47% of the programs. The use of antiandrogen or testosterone lower-ing medications is not common in US pro-grams. The majority of treatment programs in the US do not include medication treat-ment despite the studies suggesting effica-cy of biological treatments.

Civil Commitment

Civil commitment of sex offenders is a model of treatment that has gained accep-

tance in twenty states, although Vermont is not one of them. Civil commitment re-fers to the civil law used to confine a sex of-fender to an institution for treatment with the goal of reducing the risk of future dan-gerous sexual behavior. The determination of whether an individual is eligible for civ-il commitment is based on a judicial find-ing that the person meets the statutory re-quirements of sexual dangerousness. The individual is committed for treatment un-til such time he or she is determined to no longer pose a danger to the community.

Civil commitment has met with contro-versy for a variety of reasons. It is consid-ered by many to be incarceration for an act an individual has yet to commit. Treat-ment for sex offenders during incarcera-tion is not widely available. Many offend-ers will not have access to treatment while they are serving their sentence. As a result treatment is possible only when and if an individual is civilly committed.

In 2006, the Vermont House voted against civil commitment as an amendment to legislation aimed at toughening penal-ties and expanding prosecution of sexual offenders. The bill (H 856) would have in-creased minimum sentences for people convicted of sexual assault and extended to a life sentence for some sex offenders. The legislation also would have also made treatment programs available to virtually all sexual offenders.

Ethical and Legal Considerations

The legal and ethical issues that arise in the course of sex offender treatment are unique to this population. As such, the tra-

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ditional codes of ethics employed in med-ical treatment are not applicable to the treatment of sex offenders. The courts have mandated a significant percentage of sex offenders receiving treatment as part of incarceration or in order to be released into the community. The concept of man-dated or involuntary treatment raises the issue of whether informed consent is pos-sible in sex offender treatment. An element of informed consent for medical treatment is that the consent must be voluntary. The majority of sex offender treatment is not voluntary.

Individuals who reject treatment are sub-ject to punishment imposed by the courts. Individuals who have been ordered by the court to receive treatment do not have a choice regarding the type of treatment or the treatment provider. Sex offenders are required to complete particular pro-grams, irrespective of any other treatment that they might be receiving, in order to gain community release or avoid imprison-ment.15

In the medical model, patients have a right to refuse various types of treatment. The right to refuse treatment is based on an individual’s constitutional right to priva-cy. The court views sex offenders as incom-petent patients, and as such the court be-comes the decision maker regarding treat-ment.

Sex Offenders and Vermont Law

Vermont’s sex offender laws came un-der scrutiny after the 2008 kidnapping and murder of twelve year-old Brooke Ben-nett of Braintree. The state did not meet the mandate set forth in 2006 by the Adam Walsh Child Protection and Safety Act. That meant significant changes to how the sex registries were handled in the state. While Vermont typically maintains the privacy of sex offenders who have served their time and are transitioning back into society, the Adam Walsh law requires all sex offenders to be registered.

The state has a two-tier program for weighing sex offender risk, including high risk and moderate risk. The federal rules however, call for a three-tier system that is not based on professional evaluation (the way Vermont had done in the past) but based on the category of the crime the of-fender was convicted for.

Adhering to federal requirements also meant that offenders need to report in person to a designated law-enforcement agency. In the past, Vermont allowed sex offenders to make contact with the Depart-ment of Public Safety via mail when they register and annually after that, unless they moved.

Another significant change is that the state was required to notify schools, day-

care centers, and other organizations that work with children on a weekly basis about sex offenders in the area.

As of July 2012, there were 2,940 regis-tered sex offenders in the state of Vermont, with an 85% rate of compliance to the rules set forth.

Yet in October 2012, according to the U.S. Department of Justice, Vermont was one of thirty-four states that had still not complied with the 2006 federal mandate to take part in the nationwide tracking of sex offenders. Five of the thirty-four states—Arizona, Arkansas, California, Nebraska and Texas—have completely given up try-ing, even though it means forfeiting mil-lions of dollars in federal grants.

Vermont Sex Offender Treatment

The Vermont Department of Corrections currently offers the VTPSA (Vermont Treat-ment Program for Sexual Abusers), which is designed to teach offenders “how to accept, understand, modify and maintain permanent changes in behavior relating to illegal sexual behavior.”

The state has three prison-based pro-grams and thirteen community-based treatment programs. These focus on clas-sifying sex offenders according to risk for future offending and matching the level of treatment intensity to the risk level of the offender. The treatment options include high-, moderate- and low-risk programs in a prison-based setting, as well as a female offender program and an after-care com-munity program.

Vermont’s approach to sex offender treatment is similar to other states. Most states identify an individual’s level of risk and then prescribe a treatment plan ap-propriate to the individual’s needs. Ver-mont does not commonly utilize biologi-cal treatments such as chemical castration. The scarcity of biological treatment may re-late to both the lack of psychiatrists skilled in this area as well as the lack of funding to provide such intensive treatment.

The Vermont Sex Offender Registry Board, like many state registries, is under-going reform. In February 2013, the state announced the purchase of a software pro-gram, Offender Watch, which will provide real-time detailed locations of offenders in addition to email notification to the pub-lic when offenders move into their neigh-borhood. It is unclear if these changes to the sex offender registry will result in a de-crease in sex offender recidivism. To date the majority of studies in community no-tification do not demonstrate a decrease in sex offenses by community notification. On the contrary, some studies suggest that community notification results in an in-crease in sex offender recidivism by the so-cietal and financial constraints imposed by

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registries. However, Vermont may not be as quick to refuse jobs to registered sex of-fenders. For example, Eric Blaisdell, a reg-istered sex offender, on probation for three counts of attempting to solicit a minor was hired as a reporter for the Barre-Montpe-lier Times Argus.16 The efficacy of the new Vermont sex offender registry will need to be studied before any conclusions can be made.

Best Practices

Best practices in sex offender treatment utilize the most current evidence assess-ment strategies and tools for the evaluation offenders. The research in the field rapidly changes as we learn more about those fac-tors, which are mostly closely tied to sexu-al reoffenses. As such, treatment providers must be familiar with the most current lit-erature detailing treatment modalities and treatment principles. Currently the Associ-ation for the Treatment of Sexual Abusers (ATSA) is establishing guidelines for best practices in sex offender management. Once established, the Vermont treatment program should be evaluated to determine whether their treatment paradigms incor-porate best practices.

Conclusion

Although studies have demonstrated the effectiveness of some sex offender treat-ment, the scientific literature does not identify a definitive effective treatment. The literature suggests that both therapies and medication decrease sex offender re-cidivism. However, the current sex offender legislation in the United States is not based on the literature.

Rather, the legislation focuses on the preventive detention of sex offenders with-out sex offender treatment. The future of research in the treatment of sex offenders lies in the development of evidence-based knowledge that will inform both clinical decisions and public policy. This effort re-quires interdisciplinary collaboration be-tween the scientific community, correction-al professionals, and policy makers.

As for perception of sex offenders, the general public sees them as a homoge-neous group of offenders who are not treat-able. However, sex offenders are a highly heterogeneous population with different rates of reoffending and responsiveness to treatment. The successful treatment of sex offenders is dependent, in part, on the support of the public and the courts. In or-der to implement an evidence-based treat-ment, the offender must be afforded the opportunity for treatment. The opportuni-ty for treatment is created by an informed society that legislates treatment that is in-formed by scientific evidence. The educa-

tion of the public is integral in the success-ful treatment of sex offenders.

Criminal defense attorneys in Vermont can play an important role in this process by ensuring their clients charged with sex offenses receive the treatment they need. This helps not only the sex offender but also keeps communities safer. This can be achieved through understanding the legal system as it applies to sex offenders in Ver-mont, and through calling in the appropri-ate experts for thorough assessment of the individual.

____________________Renee Sorrentino, M.D., is Director of

Clinical Services at the Boston-based In-stitute for Sexual Wellness and Clinical In-structor at Harvard Medical School. Dr. Sor-rentino is a Board Certified Forensic Psy-chiatrist with an expertise in the evaluation and treatment of individuals with paraphil-ias. Dr. Sorrentino often serves as an expert witness in criminal trials. She is also a board member for the Massachusetts ATSA (As-sociation for the Treatment of Sexual Abus-ers). She received her medical degree from Boston University School of Medicine and completed a residency in adult psychia-try at Massachusetts General Hospital and McLean Hospital. Following her residency, Dr. Sorrentino completed a forensic psy-chiatry fellowship with Phillip Resnick, MD at Case Western Reserve University and a clerkship with John Bradford, MD, an inter-nationally recognized expert in the treat-ment of sexually dangerous individuals.____________________1 american pSycHiatric aSSociation taSk force on SexuaLLy DangerouS offenDerS, DangerouS Sex of-fenDerS: a taSk force report of tHe american pSy-cHiatric aSSociation (1999).2 Howard Zonana, The Civil Commitment of Sex Offenders, 278 Sci. 1248 (1997).3 William L. Marshall & Howard E. Barbaree, The Long-Term Evaluation of a Behavioral Treat-

ment Program for Child Molesters, 26 Beh. Res. Th. 499 (1988).4 DangerouS Sex offenDerS, supra note 1.5 Richard K. Hanson & M.T. Bussiere, Predictors of Sexual Offender Recidivism: A Meta-Analysis, User Report No 1966-04, Dept. of the Sol. Gen. of Can. (1996).6 William R. Ferrell & Robert D. Card, Advance-ments in Physiological Evaluation of Assessment and Treatment in the Sexual Aggressor, Sex. agg.: cur. per. (1988).7 Don A. Andrews et al., The Risk-Need-Re-sponsivity (RNR) Model: Does Adding the Good Lives Model Contribute to Effective Crime Pre-vention? 38 crim. juS. beHaV. 735 (2011).8 Julian M. Davidson, et al., Comparative Anal-ysis of the Roles of Androgen in the Feedback Mechanisms and Sexual Behavior, in anDrogenS & antianDrogenS 137 (1977).9 W. D. Murphy, Assessment and Modification of Cognitive Distortions in Sex Offenders, in HanDbook of SexuaL aSSauLt: iSSueS, tHeorieS, anD treatment of tHe offenDer 331 (W.L. Marshall et al. eds., 1990).10 F. Thibault et al., WFSBP Task Force on Sexual Disorders, The World Federation of Societies of Biological Psychiatry (WFSBP) Guidelines for the Biological Treatment of Paraphilias, 11 WorLD j. bioL. pSycH. 604 (2010).11 Tony Ward & Claire A. Stewart, Criminogenic Needs and Human Needs: A Theoretical Model, 9 pSycH. crim. L. 125 (2003).12 Robert J. McGrath et al., Current Practices and Emerging Trends in Sexual Abuser Manage-ment, The Safer Society, no. amer. SurVey (2009).13 Linda S. Grossman, Brian Martis & Christopher G. Fichtner, Are Sex Offenders Treatable? A Re-search Overview, 50 pSycH. SerViceS 349 (1999).14 Gordon C. Nagayama Hall, Sexual Offender Recidivism Revisited: A Meta-Analysis of Recent Treatment Studies, 63 j. conSuLting & cLinicaL pSycH. 802 (1995).15 Bill Glaser, Therapeutic Jurisprudence: An Ethical Paradigm for Therapists in Sex Offender Treatment Programs, 4 W. crim. reV. 143 (2003).16 See Experts Question Paper’s Handling of Sex Offender Reporter, barre-montpeLier timeS arguS, Nov. 29, 2012, available at http://www. timesargus.com/article/20121129/NEWS03/711 299895.

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Because I’d missed the last two ABA/NLADA Equal Justice Conferences, this past May’s event in St. Louis beckoned. The gathering gave me a chance to reener-gize and re-educate myself about the work of providing universal and equal access to our courts.

Several hundred other conference at-tendees were there for the same reason. Judges and justices, legal services and pro bono project coordinators, staff of court, bar associations and foundations, and pri-vate attorneys, all convened to exchange ideas and learn from each other while strolling under the Arch and along the Mis-sissippi River.

Justice Beth Robinson, Angele Court of the Vermont Volunteer Lawyers Proj-ect, and I split up to cover as many of the of pre-conferences, workshops, network-ing lunches, plenary sessions, and Access to Justice meetings as we could. We came home to Vermont with a sense that we had done some good work, but more could be done.

The ABA’s Access to Justice checklist, a two page compilation of what is being done around the country, gave us a yard-stick to measure Vermont’s accomplish-ments so far:1

• Vermont state court rules now provide for unbundled legal representation, and the VBA promotes it as a means of increasing access to justice;

• The VT Bar Foundation runs a student loan repayment assistance program to encourage new lawyers to enter pub-lic service;

• The VT Access to Justice Coalition an-nually raises money for a Poverty Law

Fellow, and is meeting with county bar associations around Vermont to assess local legal needs;

• The VBA has hosted two statewide pro bono conferences, and annually recognizes generous private attorneys with its Pro Bono Service Award;

• The VBA, Legal Services Law Line of VT, the VT Law School, and VT Legal Aid have worked together to teach public librarians about online legal re-search tools and forms, and are join-ing again to provide an online referral service for low and modest means cli-ents.

But the checklist and the conference workshops also suggest new ways of pro-viding legal help to poor and near-poor. Here are a few of the projects we might consider for our state:

Court Self Help Centers

The California state court system has pi-oneered self-help centers where litigants can get forms, use computers to do le-gal research, and pick up packets and in-structional brochures. Litigants can also get help filling out the forms by attending free, court-sponsored workshops. These are two to three hours in length each, and cover such topics as how to file a petition and an-swer, how to get a default judgment, and how to apply for and calculate child sup-port.2

Online Filing for Relief from Abuse Petitions

In California, a victim of domestic vio-

lence can fill out a petition for relief from abuse order online using a self-guided smart form. Victims don’t have to go to the courthouse to file the petition—they can fax-file the completed form. That’s a good thing, because the standard California RFA packet is fifty-three pages long.

Form Reform

In Washington State, seventy volunteers have undertaken the task of converting 211 court forms from “court legalese” into plain language. The volunteers are formed into subject groups, work via conference calls and drop boxes, and develop forms which are posted online for public com-ment.3

In Vermont, the state courts, VT Legal Aid, and Legal Services Law Line of Ver-mont have developed smart forms to file for divorce and small claims actions. To view these products, visit the Vermont Ju-diciary webpage.4 CourtFormPrep is also available at the Vermont Legal Aid web-site.5

Federal courts aid to

self-represented litigants

We usually think about pro bono in the state courts, but less so in the federal court system. But the need in federal court may be even greater, as those courts are more complex, have no forms, and most fed-eral court law libraries are closed to the public. About half the cases in the federal court system are bankruptcies, followed by prisoners’ petitions and civil rights. There is also no LawHelp.org at federal level as there is at state level.

The Public Counsel Law Center at the Central District of California seeks to change that, with forms and checklists to assist the self-represented litigant.6 In Ver-mont, the small but very active bankrupt-cy bar partners with the Vermont Volunteer Law Project to provide pro bono and re-duced fee services for lower income clients who seek to file bankruptcy.7

Early Resolution Project

The Alaska court’s Early Resolution Proj-ect (ERP) allows divorcing couples to avoid the stress and expense of a prolonged pro-ceeding. New family cases are screened by the court to determine those appropri-

The Ideal Place: ABA/NLADA Equal Justice Conference

by Mary Ashcroft, Esq.


ate for ERP, what the contested issues are, and what is the likelihood of settlement. Each ERP case is set for a three-hour hear-ing block. A volunteer attorney is appoint-ed for each litigant to provide unbundled legal services solely for this block negotia-tion/settlement session. If the parties reach agreement, the stipulation is entered and the judge issues final orders while the par-ties are still at court.

Alaska lawyers like this project because it provides immediate gratification, training, and experience in unbundled representa-tion, meets their pro bono obligation with no prep or follow-up required, and occurs in regularly scheduled ERP sessions. The project has an 80% successful settlement rate.8

Help for Modest Means Clients

There is growing recognition that legal help is needed not just by the poor, but also by modest means clients—those who make too much to qualify for legal aid, but not enough to hire an attorney. Clients with income between 200% and 300% (or some-times 400%) of the federal poverty line now receive help from a variety of new projects. The Arizona Foundation for Legal Services and Education sponsors a program under which modest means clients pay $75 for a one hour meeting; attorneys can continue with the case at the rate of $75 per hour if both agree.9 A similar approach in Wash-

ington State uses law students to screen clients for income eligibility, find an attor-ney in the appropriate field of law, and give the client the attorney’s name. The client then contacts the attorney, who will charge a sliding scale fee (suggested rates only). There is no oversight of the fee arrange-ments.

Online Pro Bono Assistance

My favor project comes from Tennessee, and provides an answer to the challenge of providing legal services in rural areas. Un-der a project known as Online Tennessee Justice, low income clients can have their legal questions answered by a real lawyer, even if the client is in the rural hills and the lawyer is in a downtown city firm. This tech-nological partnership involves the Tennes-see Bar Association, the Tennessee Alli-ance for Legal Services, and the private law firm of Baker Donelson Bearman Caldwell & Berkowtiz, PC, who created the software for the project. Clients are pre-screened online for eligibility, and then post a legal question or questions to be answered with-in forty-eight hours. Volunteer attorneys enter the website, scroll through the ques-tions, and then select one or more to an-swer. Clients names are known by the law-yers, but the lawyers do not need to iden-tify themselves to the client unless they so choose. The work is limited to legal advice only, unless the lawyers choose to provide

more extensive pro bono representation to the client. Participating lawyers are cov-ered by professional liability insurance pro-vided by the project.

These volunteer Tennessee lawyers ap-preciate the convenience of being able to do pro bono work remotely, at any time of day or night, between cases in court, on lunch break or at home.10

____________________Mary Ashcroft, Esq., is the VBA Pro Bono

Coordinator and maintains a private prac-tice in Rutland.____________________1 http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defen-dants/2013/05/nat_l_mtg_of_accesstojusti-cecmmnchairs/ls_sclaid_atj_access_to_justice_checklist.authcheckdam.pdf.2 For more information, visit the Riverside, Cal-ifornia, website at http://www.riverside.courts.ca.gov. 3 View their work (and/or make a comment) at http://www.courts.wa.gov/forms/?fa=forms.static&staticID=20.4 http://www.vermontjudiciary.org/MasterPag-es/Court-Forms-CourtFormPrep.aspx.5 http://www.vtlawhelp.org. 6 See those self-help tools at www.publiccoun-sel.org/tools/materials/files/How-to-Write-a-Complaint.pdf.7 For more information, contact the VVLP on-line at http://www.lawlinevt.org/vvlp.8 For more information, see the Alaska Court Annual report at http://courts.alaska.gov/re-ports/annualrep-fy12.pdf.9 http://www.azflse.org/modestmeans. 10 For more information, watch this YouTube spot: www.youtube.com/watch?v=Z4uesStFQUw.

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I was asked by the Vermont Bar Founda-tion to talk about why a Vermont financial institution might make the choice to par-ticipate on the Vermont IOLTA Honor Roll. Mascoma Savings Bank has been a proud member of the IOLTA Honor Roll since its inception. As you know, Vermont’s Inter-est On Lawyers Trust Accounts (IOLTA) pro-gram ensures that certain client funds (spe-

Financial institutions on the IOLTA Hon-or Roll make an active decision to remit 1.5% (Silver Level) or 2.0% (Gold Level) on IOLTAs. In a market in which financial insti-tutions are not seeking as many deposits, and interest rates are substantially lower on most accounts, the decision to partici-pate on the IOLTA Honor Roll is a conscious choice to give back to the communities we serve. Those interest rates add up to a big difference in the amount remitted and dis-tributed by the Vermont Bar Foundation. For example, Mascoma Savings Bank has been able to contribute approximately $89,000 to Vermont over a three-year pe-riod.

Mascoma Savings Bank, like other IOLTA Honor Roll financial institutions, has made a commitment to pay an above-market in-terest rate on IOLTAs. As a mutually-owned bank, we are committed to improving our communities and our customers’ lives. We know that interest on IOLTAs helps pro-vide free legal services to our moderate-

to low-income neighbors. We also know that those neighbors are often in difficult, sometimes life-threatening situations. Help from Have Justice Will Travel, Vermont Le-gal Aid, and other Vermont Bar Foundation grantees can make all the difference to a family losing a home, a woman leaving an abusive relationship, or a senior victim of fraud. We are proud that our participation on the IOLTA Honor Roll helps to make that difference.

____________________Samantha Pause is Senior Vice President

of Marketing, Sales and Service at Masco-ma Savings Bank.

Serving Our Communities Through the IOLTA Honor Roll

by Samantha Pause

IOLTA allows banks to“improve our communitiesand our customers’ lives.”

cifically those too nominal in size or held for too short a time to accrue interest for the client) earn interest. IOLTA-holding fi-nancial institutions remit the interest to the Vermont Bar Foundation for distribution to nonprofits engaged in access to justice ef-forts in Vermont.

Honor Rollfinancial institutions andHonor Roll requirements


by Lisa A. Warren, Esq.

THE CHILDREN’S CORNERMaking Waves: Charging Sixteen andSeventeen Year-Olds in Juvenile Court

In February of 2010, I changed the poli-cy in Caledonia County and began charg-ing sixteen and seventeen year-olds in ju-venile court for most crimes, as opposed to charging them in criminal court. While sixteen and seventeen year-olds are per-fectly capable of breaking the law just as adults are, judicial notice could be taken of the fact that their brains are not fully devel-oped, and their treatment and rehabilitative needs are best addressed and met through the juvenile justice system, with few excep-tions. Crimes that are not charged in juve-nile court in Caledonia County for sixteen and seventeen year-olds include serious domestic assaults, the five major motor ve-hicle offenses (DWI, DLS, negligent opera-tion, attempting to elude, and leaving the scene of an accident) and offenses enumer-ated in 33 V.S.A. §5204(a). Lamoille County and Chittenden County have since adopt-ed similar practices to Caledonia County’s juvenile protocol.

all starts at home.” Never has this adage proven truer. I’ve seen juveniles need ex-tensions or modifications of their juvenile probation terms simply because a parent would not hold up his or her end of the bargain and get the juvenile to a specif-ic appointment or service. Fortunately, in Caledonia County, the majority of families of charged juveniles have been supportive, which has contributed to the juveniles’ suc-cess in the process.

In addition to being cited by law enforce-ment, juveniles are given what is called a Notice to Report for Risk Assessment at Northeast Kingdom Youth Services. Law enforcement distributes this form at the same time as the citation. Whether the ju-venile appears for the risk assessment is determined by the juvenile and his or her parent: it is purely voluntary. The process takes approximately forty-five minutes to an hour, and the juvenile is screened by a BARJ worker1 using an instrument called the “YASI pre-screen.”2 This process great-ly assists in assessing the level of risk that the juvenile truly presents, by considering what factors may be contributing to the ju-venile’s situation and behaviors and focus-ing on risk and protective factors. While the results of the pre-screen are not shared with our office, the worker makes a recom-mendation to our office based on the as-sessment. Recommendations range from having the juvenile appear before the Com-munity Justice Center (a pre-charge proce-dure), receive a diversion referral (charge is filed at court but if the juvenile chooses di-version, the juvenile meets with diversion at court, instead of appearing before the judge), or appear in court and be placed on juvenile probation.

There are a plethora of ways to address what the juvenile needs and receives by way of a “sentence” and treatment in the juvenile process. In addition to the Commu-nity Justice Center and diversion process-es, in which the juvenile may be required to appear before panels to discuss his or her crime and the impact it has had on the victim and/or community, juveniles in Cale-donia County can participate in restorative group conferencing. The juvenile must ad-mit to the crime in court before being con-

sidered for the restorative group process, and returns to court once the process is complete. An Easter Seals worker acts as the coordinator at a meeting with the ju-venile and his or her family3 and sets up a contract as to how to address the crime, with a timetable as to when the various contract conditions will be met. The state’s attorney recommends a “bottom line” for what conditions should be included in the contract. The Easter Seals coordinator may also meet with the victim to receive input on what would repair the harm to him or her. A victim may also attend a meeting in person with the juvenile and his or her fam-ily, to share how the crime impacted him or her and what he or she would like to see to make things “right.” If successful in the restorative group conferencing, the adjudi-cation is then wiped from the juvenile’s re-cord, similar to a deferred sentence in adult court.

Finally, for those juveniles who need court involvement due to the severity of the crime, their lack of apathy for the vic-tim, and/or their need for a higher level of monitoring and treatment, there is juvenile probation. Conditions can be very intru-sive, and may include such things as cur-few restrictions, associate restrictions, at-tending and completing substance abuse programs or other treatment programs that the juvenile probation officer thinks are necessary, community service, submit-ting to urine screens, staying out of trouble and attending school regularly. In extreme cases in which the juvenile is unsafe in the community and needs a higher level of su-pervision, the state can seek custody of the juvenile if the situation warranted it. Place-ments could range from therapeutic foster homes to residential facilities to Woodside.

While there are certainly many positive features of charging sixteen and seventeen year-olds in family court, there are negative features, too. Victims of delinquencies are limited in the process, due to their confi-dential nature. Their involvement and in-put is more limited than in the criminal pro-cess. Also, what they may be told about the process is minimal. And, depending on the nature of the offense, who informs them of their rights varies.4 I personally do

Delinquency petitions filed for16 and 17 year-olds in Caledonia County

Calendar Year

Delinquency petitions filed for 16 & 17 year-olds percent

2010 7 out of 33 21%

2011 25 out of 63 40%

2012 27 out of 61 44%

Vermont belongs to a small minority of states where sixteen and seventeen year-olds are typically chargedin adult criminal court rather than in juvenile court. Some state’s sttorneys are working to reform this.

Caledonia County State’s Attorney Lisa Warren was the first to break ground.

There are multiple benefits to the juve-nile by charging in juvenile court as op-posed to criminal court. Perhaps the most important aspect is the confidential nature of the proceedings. Juveniles are cited by law enforcement for a specific date and time (similar to adult court) and no publicity is given to the proceedings because of the closed courtroom. If a juvenile is successful in the process, he or she will have no per-manent record as a result of the crime and adjudication. The public cannot access the file at court as with an adult file. In turn, there is no stigma that follows the juvenile throughout his or her life.

A key to the juvenile’s success in the ju-venile court process necessarily involves his or her parents and their willingness to engage the juvenile in services. This fac-tor goes back to the old saying that “it


was elected in November 2010 to a four-year term.

For a related article on the collateral con-sequences of adult criminal convictions for minors, see Think Twice Before Pleading a Sixteen or Seventeen Year-Old to an Adult Criminal Offense by Pamela A. Marsh & Jennifer Wagner, which appeared in the Fall 2011 issue.6 ____________________1 Balanced And Restorative Justice.2 The Yasi pre-screen is a Youth Assess-ment & Screening Instrument that exam-ines such factors as legal history, family and environment, school, community and peer relationships, alcohol and drugs, mental health, aggression, and attitudes.3 Family members who may be invited to the restorative group conference are ex-

not like having the division of notification, and would prefer to have our office’s victim advocates notify delinquency victims for all crimes, but that would require a change in legislation.

Additionally, in some cases, a juve-nile may need more time for supervision. Therefore, careful screening at inception is important, because youthful offender sta-tus under §5281 may be a better approach than filing in the first instance in juvenile court. However, both the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevention and the Center for Disease Control and Prevention have spon-sored nationwide research regarding the ineffectiveness of juvenile transfer laws at providing deterrence for delinquency and reducing recidivism. Nationwide, approx-imately 250,000 youth under the age of eighteen are being handled by the adult criminal justice system each year, and of that amount, 100,000 youth are housed in adult jails and prisons on an annual basis in the United States. According to the Bureau of Justice Statistics, 21% and 13% of all substantiated victims of inmate-on-inmate sexual violence in jails in 2005 and 2006 respectively were youth under the age of eighteen. Research also shows that youth are thirty-six times more likely to commit suicide in an adult jail than in a juvenile de-tention facility.5

Since our change in policy, I have had a few cases that I charged in juvenile court, which, in hindsight, I believe I should have charged in adult court, due to the aging out of the juvenile, continual delinquent behavior, lack of parental control, and/or lack of strong enough sanctions in family court. With appropriate extension of the reach of the family court, however, this is-sue could be avoided.

Overall, I think the decision was a sound one. Most of the juveniles seem to “get it.” Judge M. Kathleen Manley always gives them the clear message that the state could have charged them in criminal court, emphasizes the seriousness of the offense and what the penalties could have been in criminal court, and tells them how they can benefit from the process in family court. The process appears to be working. Since 2010, we have had very few sixteen and seventeen year-olds return to either juve-nile or criminal court with new offenses. The system holds them accountable, pro-vides appropriate services to them after identifying their need areas, and lets the juveniles know that they can be successful, contributing members in the community, even after breaking the law.

____________________Lisa A. Warren, Esq., was appoint-

ed Caledonia County State’s Attorney in March, 2009 by Gov. James Douglas, upon the retirement of Robert Butterfield. She

plored by the juvenile, his or her parents, and the Easter Seals worker, who brain-storm and determine who would be most appropriate to be a part of the process.4 For listed crimes, the state’s attorney’s office notifies victims of conditions of re-lease and adjudications of delinquency, and for non-listed crimes, the court does. 33 V.S.A. §§5226, 5233. Upon the filing of a delinquency petition, the court notifies vic-tims of their rights. 33 V.S.A. §5233(a).5 See U.S. Department of Justice web-site: http://www.justice.gov/opa/pr/2012/December/12-ag-1487.html; http://www.justice.gov/defendingchildhood/cev-rpt-full.pdf6 http://content.yudu.com/A1v0ib/VBA-JournalFall2011/resources/content/22.swf

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BOOK REVIEWS

James Sheehan’s second novel, The Law of Second Chances, finds its flawed but likeable protagonist, attorney Jack Tobin, comfortably settled in Bass Creek, Florida, retiring wealthy from his lucrative insurance defense practice, married to his beloved childhood friend, Pat, and devoted to do-ing what he most believes in: elimination of the death penalty, one client at a time. Af-ter all, he’s come to strongly believe, every-body deserves a second chance. So Jack takes on, through various machinations and past-yet-new friendships, two very unlikely capital punishment cases while facing the biggest challenges in his personal life.

In the book’s opening scenes in New York, we are introduced to a small-time snitch named Benny Averile, who (of course) meets up with the gorgeous, long-legged, stiletto-booted, ‘Sharon Stone-esque,’ female crook-cohort, thinking he could hold his own with this real con artist who becomes the brains and coke-provid-er for the duo. Pursuant to her plan, Benny goes for a big score hoping to double cross his femme fatale boss and keep for himself the thousands they conspire to rob from an

Second Chances:More Than a Mere Thriller

Reviewed by C. Creek Kelsey, Esq.

The Law of Second Chances

by James Sheehan

Bantam Press; 2008; 424 pp.; $8.48

oil tycoon visiting his New York City mis-tress. Instead, as he approaches the mark, out of the dark another shot rings out kill-ing the target of their plan. Benny passes out awakening to find himself the patsy for a far larger conspiracy and facing a murder charge, likely to end in a cell on death row. Jack is thus drawn back to his hometown, New York. But back in the ‘hood, everyone is connected … everyone.

In fact, there are connections upon con-nections. In Florida Tobin had been in the process of defending Henry Wilson, an Af-rican American man who, for the eighteen years he has been on death row, has con-sistently proclaimed his innocence. Tobin, the conscientious objector to the death penalty, comes on the scene when Henry, is only about eight weeks away from exe-cution for a crime he didn’t commit. Jack is intrigued and becomes certain Henry is

not guilty. But is there time, even close to enough time? Jack befriends Henry’s origi-nal lawyer, now a judge, and the two tack-le a system more interested in procedure than innocence. In time, it is Henry who leads Jack to Benny, the small-time New York crook who is fleeing police for what they maintain is his part in the robbery-turned-murder.

If either man is to survive, it will take a devoted, experienced, pro bono, anti-death penalty litigator like Jack Tobin. But Jack has significant, heart-breaking prob-lems of his own.

Structurally, the book is captivating be-cause it involves three distinct story lines, beautifully tied together in the end. The third story-line is the most difficult chal-lenge on Jack’s plate: his wife, Pat, who has been bothered by a persistent pain in her abdomen, is diagnosed with fourth-stage stomach cancer, almost certainly a death sentence of her own. Yet with Pat’s en-couragement in the background, Jack bat-tles valiantly against time to save Henry’s life and to investigate and handle Benny’s New York case (after Benny’s original law-yer is suspiciously murdered). In horrible contrast, at home Jack can only impotently watch from the sidelines as his beloved Pat battles for her life.

The real strengths of this book are the way that Tobin handles the investigations that will help him during trial, as well as revealing the flaws of the criminal justice system. Unlike many legal thrillers, in this one the evidence doesn’t come easily. To-bin chases many leads that go nowhere—this felt quite realistic and led to a sense of shared frustration, in that the clock is tick-ing and Wilson may end up executed be-fore he can be proven innocent. Sheehan has the marvelous ability to incorporate le-gal points and analyses that are true to re-alities of the law. He does not fictionalize the law or significantly speed it up to match a story line.

“Second chances” in this book refers not only to the opportunity that is provided to a person on death row but also to Jack To-bin, who must force himself to take a sec-ond chance on life after the death of his beloved wife. It is his new-found, old-con-nection, and now exonerated client, Hen-ry Wilson who encourages him to return to his old New York stomping grounds to help wrongly-accused Benny Averile and be diverted from Pat’s death and move on. Sheehan does a wonderful job of engag-ing the reader’s emotions; the segments dealing with Pat were powerful and mov-ing without being maudlin or sappy. I hesi-tate to label The Law of Second Chances

only as a “legal thriller”—there is so much more to it than stunning courtroom scenes and fast-paced action. It’s a quieter, deeper book than that, which made it all the more appealing to me. It is a moving story about love, guilt, personal redemption, the deep bonds of both way-past and newly-form-ing friendships, love and trust. Sheehan is a truly gifted storyteller and the novel’s for-mat is fresh and clever … a genuine literary achievement.1

____________________C. Creek Kelsey, Esq., is an attorney at

Law in the Public Interest L3C in Thetford Center, VT. ____________________1 The Mayor of Lexington Avenue is Sheehan’s widely acclaimed debut novel published in 2005, followed by the The Law Of Second Chances in 2008, the remarkable book reviewed here. Most recently a third novel, A Lawyer’s Lawyer, moves the same riveting characters along—yet again, a well-woven, multi-layered winner. To get the full flavor of the depth of Mr. Sheehan’s multi-ple plot levels, complex, interesting characters, one should start with the first novel in the series. However, I was well able to follow the dynam-ic, legal thriller, story line of The Law of Second Chances without first reading Mayor, though I immediately went out to find Mr. Sheehan’s first novel to enjoy that read as well. His writ-ing blends courtroom nitty-gritty, Florida nature imagery, and sensory perception, flavored with special friendships from times long-past and un-expected, new one—working cases in steamy, backwoods Florida towns that are infested with shady lawyers, crooked cops, and slimy public officials.

Turning the affirmative action debate on its head, “Mismatch” argues that race-con-scious college admissions actually hinder minority education by tossing unready stu-dents into competition with classmates far better prepared. Dubbing this hindrance “the mismatch effect,” the authors con-clude that a lack of preparation has mini-mal impact in some fields, such as literature or politics, but severely penalizes students in others, such as mathematics or chemis-try. By admitting unprepared students, the authors contend that colleges push these students away from the science and math-ematics and into the study of the arts and social sciences.

That distinction makes intuitive sense. If you arrived at college having never read Herman Melville’s novels or short stories, and began your studies by writing an es-

Mismatch? Does Affirmative Action Help or Hurt Students?

Reviewed by Jeremiah Newhall, Esq.


Winning at Deposition

by D. Shane Read

Westway Publishing; 2012; 268 pp.; $69.95

say on “Bartleby, the Scrivener” (as I did), then you could probably do reasonably well just by reading the story despite your unfa-miliarity with the author. But if you enrolled in advanced calculus, having never before studied beyond high school algebra, then you would find yourself hopelessly out-classed—and graded against an unforgiv-ing curve. No wonder, then, that smart but less-prepared students of any color would opt for courses in which their lack of prepa-ration is less dramatic. Yet is pushing these students towards studying the arts and so-cial sciences at better colleges than they could otherwise attend really a disservice to them or their classmates? The authors as-sume that it is, but they don’t explain why.

But the book’s second critique, includ-

ed almost as an afterthought, is the more damning of affirmative action in college ad-missions: Mismatch cites compelling statis-tical evidence that the applicants most like-ly to lose admission to less-prepared “di-verse” students are Asian-Americans. Col-leges and universities justify race-conscious admissions programs in part by a desire to ameliorate the lingering ills from our na-tion’s tragic legacy of racial oppression. But that goal does not square with favoring one persecuted group over another, and the federal reporters are littered with infamous cases of discrimination against Asian-Amer-icans.1

These arguments are not new, but af-ter the publication of Mismatch they have gained new traction, most notably with the Supreme Court. Just this term, Justice Clar-ence Thomas in his concurrence in Fisher v. University of Texas at Austin cited the same scholarship relied upon by Sander and Tay-lor to conclude that race-conscious admis-sions have no real benefit.2 And although in Thomas’s words, “it does not, for constitu-tional purposes, matter whether the Univer-sity’s racial discrimination is benign,”3 that is a legal fiction. Of course it matters to the justices whether affirmative action helps or hinders education. The other justices did not reach the issues with which Thomas grapples in Fisher, but they will soon: the

Court has already granted certiorari in an-other affirmative action case.4 Readers who would better understand the arguments the Court will hear next term would do well to pick up Mismatch.

The recommendation carries a caveat: readers should cast the same skeptical eye on Mismatch as on an advocate’s brief. The authors are not two Detectives Friday, con-tent with “just the facts.” With the facts as set dressing, the authors thrust their own conclusions onto center stage. But that de-cision enhances the book, spurring readers to challenge or accept the authors’ conclu-sions, as in a free-wheeling conversation with opinionated but well-informed friends.

For myself, though I enjoyed the book, I cannot agree with its conclusion that racial diversity is a net loss for all students. I chose my own alma mater, Occidental College, partly because it emphasized a diverse stu-dent body and faculty. I knew that a politi-cal science education would not serve me half as well without diverse classmates.

But Sander and Taylor are right that race-neutral standards matter, too. Consider the example of Occidental’s most accom-plished former student, who famously re-ceived a poor grade in political philosophy from Professor Roger Boesche. The student protested that the grade was unfair, but Professor Boesche told him: “You’re smart, but not working very hard.” When I en-rolled at Occidental many years later, Pro-fessor Boesche hadn’t softened; he gave me the same poor grade with the same ad-vice. He was right. No doubt the first stu-dent, Barack Obama, benefited from study-ing politics with diverse classmates, as I did. But we both benefited from a favorite pro-fessor with tough standards, too.

____________________Jeremiah Newhall, Esq., is an associate

at the firm of Ellis, Boxer & Blake PLLC, where he represents clients in a variety of civil matters in state and federal court. He is a member of the bars of Illinois and New Hampshire.____________________1 See, e.g., Korematsu v. United States, 323 U.S. 214, 215 (1944) (discrimination against Jap-anese-Americans); Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (discrimination against Chinese-Americans).2 See Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, *20–21 (2013) (Thomas, J., concurring).3 Id. at *20.4 Schuette v. Coal. to Defend Affirmative Ac-tion, 133 S. Ct. 1633 (2013) (granting certiorari).

IN MEMORIAM

David Waller MacNiven Conard

David Waller MacNiven Conard, a man who lived his life with an enthusiasm and integrity that to this day inspires us all, died unexpectedly at his home on June 24, 2013. David loved, above all, his wife, Carol; their children, Lindsey and her hus-band, Nathaniel, Ian and his fiancée, Mina, and Addie; and his brothers, Nat and Pe-ter, and their families; as well as his late parents, Doris and Mac; his community of friends in and around Shelburne and Char-lotte; his law partners; his new home and his new tractor, his boats and his truck, his cowboy boots, dancing, skiing, biking, and good wine.

David was born in Pittsfield, Mass., and raised in Vershire, Vt., where his parents founded The Mountain School in 1962 and raised their three sons to love learning, the world, and especially its mountains. He attended Dartmouth College, where he rowed crew, worked on the ski patrol, and relished his friendships in the Beta Theta Pi fraternity. He graduated from Dartmouth in 1982, and from the University of Colo-rado School of Law in 1986.

After working briefly for the Denver law firm of Morganthaler Pharo doing oil and gas law, David returned to Vermont and joined the law firm of Miller Eggleston, then founded a law firm with Tom Little and Bert Cichetti, and finally found his colleagues for life at Langrock, Sperry & Wool, LLP. David led the Board of Direc-tors at the Committee on Temporary Shel-ter, the Board of Directors of the Vermont Youth Conservation Corps, the Thompson’s Point Association in Charlotte, and the De-velopment Review Board of the Town of Shelburne. He was appointed by the Ver-mont Bar Association to serve on commit-tees studying real estate law specialization, and the unauthorized practice of law, and was the co-author of Fifty State Construc-


IN MEMORIAM (cont.)

tion Lien and Bond Law, 2d ed. (2000). He served for many years as an acting judge in Small Claims Court, and as a special mas-ter by appointment of Chittenden Superi-or Court.

David’s keen judgment, sharp memo-ry, sense of humor, and boundless ener-gy made him a leading lawyer in real es-tate and construction transactions and dis-putes. His quick mind was matched with a huge heart that glowed with his family, reached out to friends and strangers alike, and spoke aloud every day in a rolling laugh that could be heard for miles. David was a builder, of wooden things and stone walls, of friendships and family, of commu-nity and of law firms. He is survived by all that he built, by the laughter he brought everywhere he went, and by all that he loved. People may wish to make contribu-tions in David’s memory to: The Vermont Youth Conservation Corps; The Committee on Temporary Shelter; or The Kelly Brush Foundation.

Frank F. Berk

Frank F. Berk, 61, of South Royalton, Ver-mont, died June 20, 2013. Born December 16, 1951, in Brooklyn, New York, he attend-ed Queens College, graduating in 1974. The following year he moved to South Roy-alton to attend Vermont Law School, from which he graduated in 1978. A dedicated member of the community, Frank served on the school board for many years, act-ed as town attorney, and coached youth sports. He is survived by his wife Kathleen, two daughters, and two sons.

George T. Favis IV

Born in Abington, Pennsylvania, George T. Faris IV, 64, formerly of Shelburne, Ver-mont, died January 9, 2013. After gradu-ating from Amherst College in 1970 with a B.A. in English, he attended Vermont Law School, where he earned his law de-gree and served on the law review. He also earned a Masters of City Planning from the University of Pennsylvania, where he was contributing editor of the quarterly news-letter of the American Institute of Planners. He completed a program on negotiation, bankruptcy, and public policy at Harvard Law School’s Negotiation Institute. After graduation from Penn, he returned to Ver-mont to practice with Hoff, Wilson, Powell & Lang. In 1997, he opened his own prac-tice in Shelburne, specializing in real estate and business transactions, as well as land

use and environmental issues. He served on the Shelburne Planning Commission and the Shelburne Selectboard, the Re-gional Planning Commission of Chittenden County, and the boards of Vermont Asso-ciation for Business Industry and Rehabili-tation and the Burlington Business Associa-tion. In 2007, he relocated in Collegeville, Pennsylvania. He is survived by his wife, Christine, three sons, a sister and three brothers, and a grandson and numerous nieces and nephews.

Porter E. Noble

Born May 16, 1927, in Rutland, Porter E. Noble, 86, died May 23, 2013, in Rutland. After serving in the U.S. Navy Air Force for two years, he graduated from Rutland High School in 1946 and attended Rutland Ju-nior College. An avid skier, his picture ap-peared in the January 27, 1947, issue of Life Magazine as he skied at Pico. He re-ceived his law degree from the University of Denver. After years of work in Colora-do and Washington, D.C., where he was le-gal consultant for Sun Oil, he became vice president, legal consultant, and assistant to the chairman at Central Vermont Public Service Corporation. Subsequently, he be-came vice president of the Orange Rock-land Utilities Corporation in Nyack, New York, before returning to Rutland, where he practiced real estate law until his re-tirement. He is survived by four sons and a daughter, a brother, and several grand-children, great-grandchildren, nieces, and nephews.

Patricia L. Rickard

Born August 23, 19563 in Keene, New Hampshire, Patricia L. Rickard, 59, of South Burlington died May 17, 2013. After grad-uating from St. Michael’s College in 1975 with a B.A. in American Studies, Patty read for the law at Miller, Eggleston & Rosen-berg and was admitted to the bar in 1983. She was General Counsel for Marlin Man-agement Services from 1985 to 1995, after which she returned to Primmer, Piper, Egg-leston & Cramer. Most recently, she was Vice President of Human Resources at Cen-ter Vermont Medical Center and an attor-ney in Human Services Division of the Ver-mont Attorney General’s Office. She is sur-vived by her son, her mother, several sib-lings, their spouses, and their children.

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Documents

THE VERMONT BAR JOURNAL • SUMMER 2013 Attorneys/VBA...4 THE VERMONT BAR JOURNAL • SUMMER 2013 VERMONT BAR JOURNAL Vol. 39, No. 2 Summer 2013 The Vermont Bar Association 35-37 Court