July 1997 - Vermont Bar Examination Essay Questions - Model Answers

[Model Answer - Question I]
[Model Answer - Question II]
[Model Answer - Question III]
[Model Answer - Question IV]
[Model Answer - Question V]
[Model Answer - Question VI]

Examination Essay Questions - February 1997

Defendant #1 - Bob Doherty
Defendant #2 - Ray's Potato Chips
Defendant #3 - Tom Donaldson
Defendant #4 - Town/County/State
Defendant #5 - Highway Design Firm
Defendant #6 - Highway Construction Firm

Mary J. may sue Bob D. in tort for negligence.  She may recover against him
for the damage to her car and any injury to her knee as a result of the
initial impact.  As in any negligence case, Mary J. will have to show that
Bob had a duty toward her, that he breached that duty, that she suffered harm
or damages and that he was both factually and legally the cause of her
injuries.  In addition, if it can be shown that the second accident was
foreseeable, then Mary J. can also recover from Bob D. for all of her
injuries as a result of being hit by Tom D.  She will argue that "but for"
the first accident, she would not have been walking along the highway, and it
is not unreasonable to anticipate or foresee that she was likely to be
struck.  Bob D. will argue that Tom D.'s conduct was grossly negligent,
reckless or intentional, and, as such, operated as a subsequent or
superseding intervening cause and was not foreseeable.

If further development of the facts establish that Bob D. was driving the
truck for Ray's Potato Chips within the scope of his employment, then Ray's
Potato Chips would also be liable to Mary J. for all of the same damages for
which Bob D. was responsible, under the legal doctrine of respondent
superior.  Ray's Potato Chips would be vicariously liable for the negligent
acts of its employee.  Factors tending to support liability against Ray's
Potato Chips include the convenience of the employer, whether Bob D. made any
pickups or deliveries between his house and his place of employment, and
whether he had the truck serviced on either his way to or from work.  As long
as Bob was not on a "frolic" or a detour unrelated to his scope of
employment, the argument for recovery against Ray's Potato Chips is strong.

Tom D. will also be liable to Mary J. in tort for his negligence in striking
her based on his apparent breach of duty to operate his vehicle in a safe and
responsible manner.  In his defense, he will argue that Mary J. was negligent
herself by placing herself on the highway or in a position to be hit by other
motorists.  As long as her negligence, if any, is 50% or less, she will
recover from Tom D.  Her damages would be reduced by the percentage of fault
which is attributed to her, again, if any.

Based on Mary J.'s fear of driving and depression, Tom D. may also be liable
to Mary J. for:

     1.  the intentional infliction of emotional distress, or
     2.  the negligent infliction of emotional distress.

For him to be liable for intentional infliction of emotional distress, Mary
J. must show: 

     outrageous conduct done intentionally or with reckless
     disregard of the probability of causing emotional distress, 
     resulting in the suffering of extreme emotional distress, actually 
     or proximally caused by the outrageous conduct.

For the negligent infliction of emotional distress, she must show:

     serious emotional distress that was reasonably foreseeable, that the 
     defendant's negligent conduct caused the victim to suffer critical 
     injury, that the plaintiff witnessed the victim's injury and that the 
     plaintiff was closely related to the victim.

Jamie may also recover from Bob D. and Ray's Potato Chips on the same
theories as Mary J. for the injury to his neck in the first accident.  Bob D.
and Ray's Potato Chips will also be responsible for any injuries caused by
Tom D. in the second accident to the extent that they were also foreseeable.

Although he did not suffer any physical injury in the second accident, Jamie
may recover for his emotional or mental distress as a result of being in the
"zone of danger" when his mother was hit.  This will be a factual question
for the judge or jury since it could be argued that as long as he was still
in the car, he was "safe".  The fact that it was Jamie's mother, as opposed
to a stranger, satisfies the other element of this basis for liability.

Other potential, lesser defendants include whichever governmental entity
(Town, County, State) was responsible for the design, construction and/or
maintenance of the highway if it can be shown that there was a defect in the
design or construction or that the government had notice of the existing
conditions, that they were unreasonably dangerous and that they failed to
take reasonable steps to correct the dangers.

Mitigating the government entities' liability is the fact that signs were
posted, although the danger noticed was snow drifts, not ice. It may also be
that other factors caused the prior accidents. Supporting liability are the
facts that there had been "at least six accidents" in this location in the
last two years or that "there had been several winter accidents" within 150
yards of this site in the last few years.

Theories of defective design or construction would also apply to third
parties if the government entity did not design or build the road.

Mary J.'s damages include the damage to her car, the original injury to her
knee, the physical injuries from the second accident, the medical bills, past
and future, for her injuries, her lost wages and benefits, her reduced
earning capacity, her pain and suffering, her mental or emotional distress,
any last fees or penalties charged by the bank, plus any costs associated
with defending or reinstating her mortgage.

Jamie's damages include any injury to his neck and any medical expenses
associated with that, the cost of counselling, past and future, his mental or
emotional suffering, any economic damages that can be established as a result
of his declining grades or his mental or emotional state.






Now come the plaintiffs in the above captioned matter, MARY JEAN POTTS and
her attorneys, Dewey, Chetum & Howe, P.C., of 111 Shark Lane, Brattlebury,
Vermont 11111, and does hereby complain and allege of the defendants, BOB


1. Plaintiffs, MARY JEAN POTTS and JAMIE POTTS, AN INFANT, are residents of
the Town of Brattlebury, in the County of Bensor and State of Vermont.

2. Defendant, BOB DOHERTY, is a resident of the Town of Brattlebury, in the
County of Bensor and State of Vermont.

3. Defendant, RAY'S POTATO CHIPS, is a Vermont Corporation organized and
existing under the laws of the State of Vermont. 4. Defendant,
TOWN/COUNTY/STATE, is a municipal corporation, organized and existing within
the Town of Brattlebury, County of Bensor and State of Vermont.

5. Defendant, HIGHWAY DESIGN FIRM, is a Vermont Corporation organized and
existing under the laws of the State of Vermont.

6. Defendant, HIGHWAY CONSTRUCTION FIRM, is a Vermont Corporation organized
and existing under the laws of the State of Vermont.

7. On or about January 10, 1996, plaintiff, MARY JEAN POTTS, was the driver
of vehicle travelling West on Slick Hill Road in Brattlebury, Vermont.

8. On or about January 10, 1996, plaintiff, JAMIE POTTS, was a passenger in
the vehicle operated by his mother, MARY JEAN POTTS.


9. Plaintiff realleges Paragraphs 1 though 8 of the Complaint.

10. On or about January 10, 1996, defendant, BOB DOHERTY, was operating a
vehicle owned by plaintiff, RAY'S POTATO CHIPS, while travelling West on
Slick Hill Road in Brattlebury, Vermont within the scope of his employment
with plaintiff, RAY'S POTATO CHIPS.

11. While the plaintiff's vehicle was travelling West on Slick Hill Road, it
was, without warning, suddenly and violently struck from ffie rear by the
vehicle operated by defendant, BOB DOHERTY.

12. Defendant, BOB DOHERTY, was at such time guilty of the following acts of
negligence, among others:

a) Defendant failed to keep a proper lookout;

b) Defendant failed to observe that the plaintiff's vehicle in front
of him;

c) Defendant failed to keep his vehicle under proper control;

d) Defendant failed to operate his vehicle in a careful and prudent

13. As a result of the collision, proximately caused by the negligence of
the defendant, BOB DOHERTY, plaintiffs, MARY JEAN POTTS and JAMIE POTTS, were
permanently injured.

14. As a direct and proximate result of the defendant's negligence and the
resulting collision, the plaintiffs have sustained, among others, the
following damages:

a) Pain and suffering, past and future;

b) Medical Expense, past and future;

c) Emotional distress;

d) Diminishment of enjoyment of life;

e) Injury to personal property;

f) Lost wages;

g) Lost earning capacity.

15. WHEREFORE, plaintiffs, MARY JEAN POTTS and JAMIE POTTS, demand judgment
against the defendant, BOB DOHERTY, in an amount to be determined, together
with her costs, interest, attorneys fees, and such other relief as this court
may deem just proper and equitable.


16. Plaintiff realleges Paragraphs 1 though 15 of the Complaint.

17. Defendant, RAY'S POTATO CHIPS, through its employee, was at such time
guilty of the following acts of negligence, among others:

a) ... [same as paragraph 12]

18. [same as paragraph 13]

19. [same as paragraph 14]

20. [same as paragraph 15]


21. Plaintiff realleges Paragraphs 1 though 20 of the Complaint.

22. On or about January 10, 1996, defendant, TOM DONALDSON, was operating a
vehicle while travelling West on Slick Hill Road.

23. After the collision the plaintiff, MARY JEAN POTTS, and defendant, BOB
DOHERTY, got out of their vehicles to exchange information. While plaintiff,
MARY JEAN POTTS, was walking back to her vehicle, she was, without warning,
suddenly and violently struck from the rear by the vehicle operated by
defendant, TOM DONALDSON.

24. At the time plaintiff, MARY JEAN POTTS, was struck, her son, plaintiff,
JAMIE POTTS, was in the backseat of their vehicle, "in the zone of danger",
from where he witnessed the event.

25. Defendant, TOM DONALDSON, was at such time guilty of the following acts
of negligence, among others:

a) Defendant failed to keep a proper lookout;

b) Defendant failed to observe that the plaintiff's vehicle in front of

c) Defendant failed to keep his vehicle under proper control;

d) Defendant failed to operate his vehicle in a careful and prudent

e) Defendant operated his vehicle in manner constituting outrageous

26. [same as paragraph 13]

27. [same as paragraph 14]

28. [same as paragraph 15]


29. Plaintiff realleges Paragraphs 1 though 28 of the Complaint.

30. On or about January 10, 1996, the road conditions on Slick Hill Road
were unreasonably icy due to inadequate water drainage and poor design and
construction. There was no sign of salt or sand on the road, making the road
dangerous for travel.

31. Said Slick Hill Road is a town owned road travelled regularly by a
large number of vehicles.

32. Within a few years prior to January 10, 1996, there had been several
winter accidents within 150 yards of the site of this accident.

33. Defendant, TOWN/COUNTY/STATE, had at all times retained control of Slick
Hill Road and knew, or in the exercise of reasonable oversight, ought to have
known of the existence of the dangerous condition and failed to provide
reasonable safeguards against it.

34. Defendant, TOWN/COUNTY/STATE, had at all tirnes a duty as owners of
Slick Hill Road, to take proper diligence in keeping the road reasonably safe
from the dangers incident to accumulations of ice and snow.

35. Defendant, TOWN/COUNTY/STATE, in breach of its duty described above,
negligently and carelessly;

a. Allowed ice to accumulate on Slick Hill Road;

b. Failed to remove such accumulated ice from Slick Hill Road;

c. Failed to provide safe driving conditions on Slick Hill Road;

d. Failed to adequately supervise and ensure Slick Hill Road was
maintained in a reasonably safe manner;

e. Failed to exercise due care with respect to the matters alleged
in this complaint.

f. Failed to warn plaintiffs of existing conditions on Slick Hill
Road of which defendant knew or should have known.

36. [same as paragraph 14]

37. [same as paragraph 15]


38. Plaintiff realleges Paragraphs 1 though 37 of the Complaint.

39. Said Slick Hill Road, was designed in or around 1992 by defendant,

40. Defendant, HIGHWAY DESIGN FIRM, had at all times a duty as designers of
Slick Hill Road, to take proper diligence in designing a reasonably safe road
free from the dangers incident to accumulations of ice due to poor water

41. Defendant, HIGHWAY DESIGN FIRM, in breach of its duty described above,
negligently and carelessly;

a. Designed the road to allow water and ice to accumulate;

b. Failed to design the road to provide for adequate drainage;

c. Failed to provide safe driving conditions on Slick Hill Road;

d. Failed to adequately supervise and ensure Slick Hill Road was
designed in a reasonably safe manner;

e. Failed to exercise due care with respect to the matters alleged in
this complaint.

42. [same as paragraph 14]

43. [same as paragraph 15]


44. Plaintiff realleges Paragraphs 1 though 43 of the Complaint.

45. Said Slick Hill Road, was constructed in or around 1992 by defendant,

46. Defendant, HIGHWAY CONSTRUCTION FIRM, had at all times a duty as
constructors of Slick Hill Road, to take proper diligence in constructing a
reasonably safe road free from the dangers incident to accumulations of ice
due to poor water drainage.

47. Defendant, HIGHWAY CONSTRUCTION FIRM, in breach of its duty described
above, negligently and carelessly;

a. Constructed the road to allow water and ice to accumulate;

b. Failed to construct the road to provide for adequate drainage;

c. Failed to provide safe driving conditions on Slick Hill Road;

d. Failed to adequately supervise and ensure Slick Hill Road was
constructed in a reasonably safe manner;

e. Failed to exercise due care with respect to the matters alleged in
this complaint.

48. [same as paragraph 14]

49. [same as paragraph 15]

Dated at Brattlebury, Vermont this ____ day of _________, 1997.



Howie Chetum, Esquire
of Dewey, Chetum & Howe, P.C.
Attorneys for Plaintiff

111 Shark Lane
Brattlebury, Vermont 11111


Plaintiffs demand Trial by Jury on all issues set forth herein.



Howie Chetum, Esquire
of Dewey, Chetum & Howe, P.C.
Attorneys for Plaintiff

MODEL ANSWER - QUESTION II - JULY 1997 1. Nasty might argue that Farmers' use of lots A and B violates the restrictive covenants imposed by Sam Subdivider in 1979. Subdivider attempted to restrict use of these lots to residential purposes, and Farmers are using Lot A to conduct a nursery and greenhouse business. Further, Farmers are now expanding their commercial use to Lot B and have already engaged in site development on this lot. There is some issue, however, regarding the validity of the restrictive covenants. It is not clear from the question whether the restrictive covenant language was incorporated in the deeds to the three lots. To the extent that it was not, Nasty's reliance on the covenants might be misplaced, since Farmers can argue that the declaration failed to meet the formal requisites of conveyancing (i.e., witnesses and acknowledgment). Otherwise, the restrictive covenants are likely to be enforced by the court. The residential use requirement clearly touches and concerns the land, and all purchasers were on constructive notice of the existence of the covenants by virtue of the declaration of subdivision recorded in the land records. Farmers may contend that their use of Lot A has continued unchallenged for years and that Nasty should not be permitted now to challenge this longstanding use. They may also argue that because the use is permitted under the Home Occupation Ordinance, it should be deemed to be a residential use within the meaning of the restrictive covenant. This argument will likely be unavailing. The restrictive covenant is effective independently of the local zoning, and the common understanding of the term "residential purposes" is more narrow than the commercial use to which Farmers are putting Lot A. Moreover, there is doubt as to whether the Home Occupation ordinance is effective, since it was enacted within fifteen days of the enabling statute. Nasty can request both legal and equitable relief for Farmers' violation of the restrictive covenants. Nasty can also assert that he is entitled to a privacy screen since Sam Subdivider's declaration so provides. Nasty will have no right to dictate the specifications for such a screen (such as its composition, height and setback). Instead, the court will analyze whether any screen is reasonable under the circumstances. Since the business activity in Lot B is in part the growing of trees and shrubs, it is not clear that extensive screening would be required. The Farmers may contend that Nasty must build a screen on his lot. With respect to Lot B, Nasty can argue that Farmers have no leasehold rights for two reasons. First, they can argue that the lessor, FFP, lacks good title since Ed Executor failed to obtain the requisite license to sell. This would appear to be a defect which could be cured by initiation of appropriate probate proceedings (see below). In addition, Nasty can argue that Farmers' lease is invalid under the statute of frauds. An oral lease for a term greater than one year is not enforceable, and the question suggests that the lease might be for a period of up to five years. Nasty might also look into the possibility that Farmers' actions violate applicable zoning. Finally, there is an issue as to whether the subdivision itself is effective, since there is no indication that a state subdivision permit was obtained. This would be required if any of the lots was under ten acres. 2. Farmers can assert that Nasty lacks good title in Lot C and thus is without standing to challenge Farmers' activities on Lots A and B. The deed to Nasty was witnessed by only one person, who also took the grantor's acknowledgment. While Vermont law permits a notary to also serve as a witness, the law as of 1980 required two witnesses for a valid conveyance. Since the conveyance apparently occurred more than 15 years ago, however, 27 V.S.A. §348 cures this technical defect. In response to Nasty's argument that Farmers' lease of Lot B violates the statute of frauds, Farmers will point to their efforts in improving the lot, contending that these efforts constituted Farmers' reasonable reliance on the existence of lease. In the usual situation, however, the reliance argument is made not to a third party but to the lessor himself. In this case, Farmers can also maintain that because Nasty waited before attempting to stop the allegedly improper use of Lot B, he is estopped from challenging Farmers' leasehold rights. Nasty may excuse his delay in view of the fact that the Farmers' clearing activities could be consistent with residential use. Further, Farmers will contend that Nasty's delay in pursuing his rights and his hostility to Farmers bar him from equitable relief under the doctrines of laches and unclean hands. While the unclean hands doctrine focuses on Nasty's conduct, laches requires only an unreasonable delay in asserting rights. Farmers can successfully challenge Nasty's demand for a 12-foot tall wooden fence 20 feet onto Lot B. As noted above, the specifications on their face appear unreasonable and may even subject Nasty to liability under the spite fence doctrine. 3. If FFP wishes to withdraw from its leasehold arrangement with Farmers, it could argue that any agreement it made was barred by the statute of frauds. To the extent that Farmers argue that their reliance in improving the lot removes the agreement from the statute of frauds, FFP can maintain that this reliance was not reasonable since Farmers knew or should have known that a written lease was to be prepared. Farmers should not have expended time and money to improve the lot until the terms of the written lease had been agreed upon and the lease had been executed. The lack of a license to sell Lot B renders FFP's title unmarketable. Sam Subdivider's estate should be reopened so that an appropriate license to sell can be obtained. MODEL ANSWER - QUESTION III - JULY 1997

1. Harry faces several charges including a charge of felony murder, i.e.,
murder committed during the commission of a sexual assault, plus separate
charges of sexual assault and murder. Charges can be brought in one of two
ways, either by a prosecutor filing an information and affidavit or convening
a grand jury and seeking an indictment.

2. The prosecutor should first argue that Harry is ineligible for release
on bail. Harry is charged with an offense that carries a possible sentence
of life imprisonment. 13 V.S.A. §2303. Under the Vermont Constitution, ch.
II, §40, a person accused of a crime punishable by a sentence of life
imprisonment may be held without bail when the evidence of guilt is great.
Pursuant to 13 V.S.A., §7553, if the court determines at a bail hearing that
the evidence of guilt is not great, the defendant is bailable, either as a
matter of personal recognizance or upon the posting of cash bail, as long as
the court is satisfied the defendant will reappear.

In evaluating the risk of non-appearance the court can consider, inter alia,
the defendant's ties to the community and the seriousness of the offense. If
there is a risk of flight, the court must impose the least restrictive
conditions to ensure appearance. For example, reporting requirements, travel
restrictions, supervision, etc. are possible conditions to guarantee

The prosecutor should argue, if the court rejects the no bail approach, for
sufficient cash bail to assure appearance coupled with the conditions
mentioned above. Emphasis should be placed on Harry's lack of connection
with Vermont, i.e., he is here from some other locale since he is on a
cross-country trip.

3. As a defense lawyer, you should move for a mental and physical
examination in order to determine Harry's competency to stand trial. Based
on the putative facts that Harry fell down while on his hike and has
expressed confusion, there is a good faith basis for arguing that Harry
suffers from a mental impairment caused when he struck his head.

A person cannot be tried if he is incompetent to stand trial. 13 V.S.A.
§4817. To succeed the defense lawyer should argue that Harry is not able to
consult with his lawyer and participate in his own defense and does not
understand the function and purpose of the court proceedings, given his
expressed disorientation and confusion at arraignment. In order to conduct
the examination, the proceedings should be stayed.

If the competency motion results in an evaluation and a court order that
finds Harry competent, the defense counsel may file a notice of insanity
under V.R.Cr.P. 12.1 and the court may order a mental evaluation pursuant to
V.R.Cr.P. 16.1 (a)(1)(I).

4. The prosecutor would seek blood samples and hair combings from Harry's
head and pubic area. These could be obtained by consent or through a
non-testimonial order or NTO either at the request of the prosecutor or a law
enforcement officer. See V.R.Cr.P. 41.1. Since Harry's competency is at
issue, consent is not a viable route. Note that the use of a non-testimonial
order is not violative of Fourth or Fifth Amendment protections.

5-6. An NTO requires a sworn affidavit that establishes that probable cause
exists to believe an offense has been committed, that there are reasonable
grounds to believe the defendant committed the offense, and that the results
of the NTO would be "of material aid" to the investigation by demonstrating
whether the person named in the affidavit committed the offense. The Vermont
Supreme Court has said that NTOs "are evaluated like search warrants in a
common sense manner under the totality of the circumstances." State v.
Towne, 158 Vt. 607, 618 (1992). The Court has not yet addressed whether the
"material aid" prong of V.R.Cr.P. 41.1(c)(3) must satisfy a probable cause

When the NTO contemplates the collection of pubic hair, the privacy interests
of the suspect, as provided by Article 11 of the Vermont Constitution,
require a probable cause showing in the affidavit that accompanies the NTO
application. State v. Towne, 158 Vt. at 621. If the hair to be analyzed was
head hair, a lesser showing is acceptable.

The prosecutor may not have probable cause to support the collection of pubic
hair from Harry. All the prosecutor arguably has are the volunteered
statements from Harry, i.e., Harry and Cathy had been together at the
campground and a possible guilty conscience (never get to use the camping
gear again). The prosecutor does have Harry's injuries and his blood-stained
shoes which may be linked with his alleged struggle with Cathy. The defense
lawyer should argue that obtaining samples from Harry will not materially
advance the State's hunt for the perpetrator of the felony murder since Harry
and Cathy were sharing the tent and presumably were intimately acquainted.
Harry's body and head hair and bodily fluids could be present on Cathy's body
through consensual acts.

7. As the defense lawyer you would file a motion for release on bail, a
motion for competency evaluation (discussed above), a motion to dismiss for
lack of a prima facie case (V.R.Cr.P. 12(d)), and a motion to suppress
(V.R.Cr.P. 41(f)) relating both to Harry's statements and to his shoes, based
on federal and state constitutional violations.

Relative to the dismissal motion, the defense should stress the absence of
proof regarding the essential elements of the crime. The State's proof is
too circumstantial and does not establish identity of the perpetrator or
intent. Because of the intimate relationship that existed between Harry and
Cathy, the forensic evidence sought in the NTO order will not be probative.

The defense should also file a motion to suppress the fruits of the invalid
arrest, given the lack of probable cause to believe that Harry had committed
a felony. In addition, the defense should file a motion to suppress based on
the absence of Miranda warnings. Because the police did not administer
Miranda warnings, the defendant's verbal admissions should be suppressed.
The defense must make a two-part argument, i.e., Harry was in custody, and
given his mental state, the comments by the police were the equivalent of
interrogation. The State will argue that no interrogation took place.
Harry's responses were spontaneous and not responsive to comments or the very
general questions from Ted Trooper. The State is also likely to prevail by
pointing out the absence of custody. At the outset of their conversation,
Harry had walked up to Ted and initiated their conversation.

The defense should move to suppress the boots since the boots were seized
without a warrant. The defense will argue that there was no probable cause
to seize them and that Harry did not, given his mental distress, have the
capacity to consent to their acquisition by the police. The State will argue
that the bloodstains on the boots were in plain view and stress the exigent
nature of the evidence. In light of these exceptions to the warrant
requirement, the State will argue that the warrantless seizure of the boots
was valid.

8. As the victim's next of kin, Cathy's parents have rights under §5301 et
seq. in Title 13. The Vermont Legislature has enacted laws that confer on
the victim and designated relatives rights of notice and information vis a
vis the criminal proceedings. The victim advocate employed in each
prosecutor's office is required to assist and emotionally support relatives
in order to help them understand the workings of the criminal process. To
that end, Cathy's parents must receive notice and information concerning
court hearings, their right to restitution, witness fees, counseling, the
return of property, and transportation to court hearings. They are also
entitled to information regarding the release of a defendant, should that
defendant make bail, be furloughed, or escape.

The Victims Compensation Board also is a resource. This Board covers
pecuniary losses including medical expenses and funeral expenses. See 13
V.S.A. §5351 et seq.

MODEL ANSWER - QUESTION IV - JULY 1997 Strongarm must file its U.C.C. financing statement in the Secretary of State's Office. As much of the equipment is likely to become affixed to the land, and the security agreement identifies fixtures as part of the collateral, a fixture filing should also be recorded in the town clerk's office where a mortgage would be filed. 9A V.S.A. §§9-401 and 9-402. The Uniform Commercial Code provides that a creditor may take possession of collateral without judicial process if it can be done without breach of the peace. Therefore, Strongarm lawfully repossessed the collateral. If a debtor refuses to allow the creditor to take the goods or some other breach of peace occurs, then judicial action would be required for Strongarm to take possession. Strongarm could request a Writ of Replevin from court in order to take possession of the property. Once in possession, Strongarm may proceed by either public or private sale, but every aspect of the disposition of the collateral, including method, manner, time, place and terms must be commercially reasonable. Notification must be sent to the debtor and to the junior secured parties who have previously notified the creditor of their junior interests. Title 9A, §9-504. Strongarm may keep the collateral in satisfaction of the Snow's obligations if there is no objection from Snow's or junior creditors entitled to notice. 9A V.S.A. §9-505(b). If Strongarm proceeds by commercially reasonable sale, then it will have a right to a deficiency if the proceeds of the sale do not satisfy the indebtedness. Vendor must file its financing statement in the Secretary of State's Office (as well as the Town Clerk's office for a fixture filing) within twenty days of the debtor's possession of the property. 9A V.S.A. §9-301(2). Vendor will argue that it holds a Purchase Money Security Interest in three snow guns, and as such, under §§9-107 and 9-301, it has a super priority interest over Strongarm in those three guns. Vendor could try to argue that its PMSI status runs to all the guns, but probably would not be successful. The special nozzles would be considered accessions to the underlying collateral and Strongarm would hold a priority interest in them, assuming they are easily removable, and its security interest attached prior to the time they were attached to the snowguns. 9A V.S.A. §9-314. Flo and Mo have a cause of action against Vendor if the snowguns were defective or did not operate as Vendor represented they would. Flo and Mo may proceed against Vendor for breach of express warranty, breach of warranty of merchantability and breach of implied warranty of fitness for a particular purpose. Vendor expressly told Mo and Flo that the guns would produce all the snow they needed. Under 9A V.S.A. §2-312, if the promises or affirmations by Vendor relating to the goods became the basis of the bargain, Vendor has given an express warranty. Vendor is a merchant of snowguns and under §2-314 there is an implied warranty of merchantability that the snowguns are fit for their ordinary purpose, unless there is an exclusion or modification of warranty. If Flo and Mo had accurately described to Vendor what type of snowmaking capability they needed, and Vendor knew of their particular needs and their reliance upon Vendor, then Vendor would have breached the warranty of fitness for a particular purpose under 9A V.S.A. §2-315 if the guns failed to so perform. Flo and Mo may file for bankruptcy either under Chapter 11 reorganization if they feel they can be successful with time and debt reorganization, or under Chapter 7 liquidation if they do not believe their business will succeed. Upon filing under either Chapter 7 or 11, the automatic stay will prevent creditors from pursuing their actions against Flo and Mo. A bank has a right of set-off against a deposit account owned by a debtor who owes money to the bank. Strongarm had the right to seize Mo and Flo's bank account if they were delinquent in its obligations to the bank. Bankruptcy proceedings, however, would limit Strongarm's options to freezing the account and then seeking a relief from stay. The relief would probably be granted and Strongarm could then apply the $5,000 against Mo and Flo's debt. See, e.g. Citizens Bank of Maryland v. Strumpf, 116 S. Ct. 286 (1995), In re Wildcat Construction Co., Inc., 57 B.R. 981 (Bankr. D. Vt. 1986), Moreira v. Digital Employees Federal Credit Union, 173 B.R. 965 (Bankr. D. Mass. 1994). MODEL ANSWER - QUESTION V - JULY 1997 1. The second will which John drafted for his father in the hospital is invalid because it was only witnessed by two people, the nurse and the father's friend. 14 V.S.A. §5 requires three or more credible witnesses. The first will controls since it was not revoked. Under 14 V.S.A. §11, a will is not revoked, except by implication of law, other than by some will, codicil or other writing executed as provided in the case of wills or by burning, tearing, canceling or obliterating the same with the intention of revoking it by the testator himself or by some person in his presence and by his express direction. Since the will drafted by John was not executed as provided in the case of wills, it did not serve to revoke the first will and since the original will is still in your office and has not been destroyed, it was never revoked. 2. Since the first will was not validly revoked, the property should be distributed in accordance with its terms. Under the first will, Gary would receive everything subject to his mother/the deceased wife electing against the will to take her share, under 14 V.S.A. §§401, et seq., and §461, et seq. If the mother elects to take against the will as it appears that she will, she will receive one-third of the personal estate and one-third of the realty. 3. Vermont law requires the custodian of the will to deliver it to the court or executor within thirty days of learning of the testator's death. See 14 V.S.A. §103. The will, therefore, should be delivered either to the executor or to the court. 4. The plan to distribute the estate as quickly as possible to defeat the creditors rights will not work. Publication of notice to creditors is required unless it is excused in accordance with 14 V.S.A. §1201. In order for such publication to be excused, there must be no debts existing against the decedent, the debts must all be known to the executor and there are funds to pay them, or the value of the estate must not exceed the sum of $2,500 and be assigned for the support of the surviving spouse. Id. If notice is not given for one of the above reasons, any assets distributed will be subject to any claims later established. Id. John's plans to distribute without notice therefor, even if it were possible to carry out, simply makes the assets subject to claim after distribution. 5. The facts present a variety of ethical issues which must be considered prior to undertaking the representation of John. The prior representation of the brother, who would be an adverse party in any will contest, presents one such issue. On the facts presented, it would not appear that any of the prior representations would have involved a subject matter substantially related to this representation nor would it appear likely that any information was acquired in the course of that representation which would be considered a confidence or secret which would be revealed or could be used on connection with this matter. See D.R. 4-101(B). See, also, Professional Conduct Board Opinions #92-11, #89-15, #88-12. It, therefore, does not appear that the prior representation of the brother would preclude representation of John in connection with this matter. Since your office did the original will under which John did not take anything, and the second will is invalid, it would appear that the only way for John to receive anything is to contest the original will which was drafted by your office and witnessed by you. This situation presents a clear conflict of interest and also makes it probable that you will be called as a witness. A lawyer should not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness except in very limited circumstances. See D.R. 5-101. Even if you were to agree to represent John, you could not honor his request to contact Gary directly since he and Gary are adverse parties and Gary is represented by an attorney. Under D.R. 7-104, during the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. MODEL ANSWER - QUESTION VI - JULY 1997 1. Rule-Making Authority Prior to initiation of the rule-making process, it is essential to make certain that the Board has the legal authority to adopt such rules. The rules must be based on a statutory grant of power to the Board to adopt rules, and any specific Board rule proposed under such a grant must be within the scope of the legislative power grant. See, e.g. In re Petition of Welfare Rights Organization, 132 Vt 622(1974). 2. Rule-Making Process A. Brief Description of Process Except for emergency rules, administrative rules are adopted by taking the following steps (outlined at 3 VSA §836): (1) prefiling, when required; (2) filing the proposed rule; (3) publishing the proposed rule; (4) holding a public hearing and receiving comments; (5) filing a final proposal; (6) responding to the Legislative Committee on Administrative Rules when required; and (7) filing the adopted rule. Details concerning these steps may be found at 3 VSA §837 (prefiling), 3 VSA §838 (filing of proposed rules), 3 VSA §839 (publication), 3 VSA §840 (public hearing and comment), 3 VSA 842 (final proposal), 3 VSA §843 (filing of adopted rules). A public hearing is not required unless requested by 25 persons, by a governmental subdivision or agency, or by an association having 25 or more members. 3 VSA §840(a). B. Objections During the rule-making process, objections to the rule may be raised by members of the public or by the Legislative Committee on Administrative Rules. Details regarding the kinds of objections that the Legislative Committee may make are provided at 3 VSA §842(b), (c), and (d). The Board may change the rule based on objections received or, even if the Legislative Committee objects, the Board may proceed with adoption of a final rule. 3 VSA §843. 3. Adoption Despite Objection A. Public Objections Public objections could be made regarding such matters as the content of the rule or the authority of the Board to adopt the rule. The Board must consider fully all written and oral submissions concerning the proposed rule, and all submissions on separate requirements for small businesses. 3 VSA §840(d). If the Board decides in its final proposed rule to override substantial arguments and considerations raised for or against the original proposal or to reject suggestions with respect to separate requirements for small businesses, the final proposal must include a description of the reasons for the Board's decision. 3 VSA §841(a). The failure of the Legislative Committee on Administrative Rules to object to a final proposal (which may reject public objections) is not an implied legislative authorization of the rule's substantive or procedural lawfulness. 3 VSA §842(b). B. Legislative Committee Objections (a) Authority, Legislative Intent, Arbitrariness The Legislative Committee on Administrative Rules may object to a final proposed rule if the rule is beyond the Board's authority, contrary to the intent of the Legislature, or arbitrary. 3 VSA §842(b). If such an objection is filed, the burden of proof would shift to the Board, in any action for judicial review or for enforcement of the rule, to establish that the part objected to is within the Board's authority, is consistent with Legislative intent, and is not arbitrary. If the Board fails to meet this burden, the Court must declare the whole or portion of the rule objected to invalid. 3 VSA §842(b). (b) Style, Economic Impact Statement The Legislative Committee may also object if the proposed rule is not written in a clear and coherent manner using words with common and everyday meanings, consistent with the text of the rule
or procedure. 3 VSA §842(c); 3 VSA §833. In addition, the Committee
may object if the economic impact statement fails to recognize a
substantial economic impact of the proposed rule that the Committee
describes in its notice of objection. 3 VSA §842(d). The Committee
may make this latter objection one time and return the proposed rule
to the Board as unacceptable for filing. The Board may then cure
the defect and adopt the rule, or it may adopt the rule without change.

(c) Necessity to Respond

Failure to respond to an objection of the Legislative
Committee as required under 3 VSA §842 prevents a rule from taking effect.

4. Procedural Objections After Adoption

A. Validity Affected

The following prevent a rule from taking effect under 3 VSA §846(a):

(1) failure to file with the Secretary of State, with
the Legislative Committee, or (if required) with the
Interagency Committee on Administrative Rules;

(2) failure to respond to an objection of the Legislative
Committee as required in 3 VSA §842.

B. Validity Not Affected

The following do not affect the validity of a rule after its
adoption under 3 VSA §846(b):

(1) inadvertent failure to make required assurances
relating to an incorporation by reference;

(2) amendment after public hearing of the test of a
proposed rule in a manner that does not cause the
published summary of the rule to become misleading
or inadequate;

(3) failure to certify that all procedures required
by the Vermont Administrative Procedure Act have
been satisfied;

(4) failure to meet the style requirements of
3 VSA §833;

(5) inadvertent failure to mail notice or copies of
any rule.

An action to contest the validity of a rule for noncompliance
with provisions of the Vermont Administrative Procedure Act, other
than those listed in 4(a), must be commenced within 1 year after
the effective date of the rule.

5. Emergency Rule

Unless the Legislature expressly authorizes adoption of an
emergency rule, such a rule may be adopted only where an agency believes
that there exists an imminent peril to public health, safety, or welfare.
3 VSA §844(a). Reasonable efforts must be made to ensure that emergency
rules are known to persons who may be affected by them, and they may
not remain in effect for more than 120 days. In light of an emergency
rule's limited life, if the Board meets the requirements for adoption
of an emergency rule, it should know that it may propose a permanent
rule on the same subject at the same time that it adopts an emergency rule.

5. License Revocation Procedures

Under the Vermont Administrative Procedure Act, no revocation of
a license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant
the intended action, and the licensee was given an opportunity to show
compliance with all lawful requirements for retention of the license.
3 VSA §814(c).

More detailed requirements concerning the notice and the hearing
are given in the Act. See, e.g., 3 VSA §809.

7. Judicial Review

A person who has exhausted all administrative remedies available
within an agency and who is aggrieved by a final decision in any
contested case may appeal that decision to the Vermont Supreme Court,
unless some other court is expressly provided by law. However, a
preliminary, procedural, or intermediate agency action or ruling is
immediately appealable if review of the final decision would not
provide an adequate remedy, and the filing of the appeal does not
itself stay enforcement of the agency decision. 3 VSA §815(a).

--------------------------------------------------------------------------- Board of Bar Examiners Mailing address: 109 State St. Montpelier VT 05609-0702 Office Locaation: 111 State St. Montpelier, VT Telephone: (802)828-3281