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In re Faignant

Supreme Court of Vermont

May 8, 2019

In re John Paul Faignant, Esq.

          ENTRY ORDER

         In the above-entitled cause, the Clerk will enter:

         ¶ 1. Petitioner filed a petition for extraordinary relief, asking this Court to order Bar Counsel to refer for investigation a complaint he made against an attorney. Bar Counsel moves to dismiss the petition. We grant his request. We agree with "every jurisdiction that has ever confronted" this issue and conclude that petitioner fails to "allege an injury sufficient to confer standing." Boyce v. N.C. State Bar, 814 S.E.2d 127, 134 ( N.C. Ct. App. 2018) (recognizing that many individuals have "taken issue with a state bar's failure to act on a disciplinary grievance and then sought relief from the courts," and "every jurisdiction that has ever confronted [this issue] has concluded that the complainant has not alleged an injury sufficient to confer standing" (citing cases)).

         ¶ 2. Before turning to the merits, we address petitioner's request, made almost two months after filing his petition, to add his client as a "co-petitioner" because she was "subjected to the conduct complained of." We deny his request. The subject of this petition for extraordinary relief is the complaint that petitioner filed with the Professional Responsibility Program; his client filed no such complaint. Even if we were to grant petitioner's request to add a co-petitioner, we would reach the same result. Neither petitioner nor his client has standing to pursue this case.

         ¶ 3. We begin with an overview of the attorney discipline process in Vermont. The Court, pursuant to its constitutional authority, "has established a program to enforce the Rules of Professional Conduct and provide for attorney discipline." In re Robinson, 2019 VT 8, ¶ 21, __ Vt.__, __ A.3d __. The Professional Responsibility Board administers the disciplinary program. See id. The purpose of attorney discipline "is to protect the public from persons unfit to serve as attorneys and to maintain public confidence in the bar, as well as to deter other attorneys from engaging in misconduct." Id. ¶ 73 (quotation omitted).

         ¶ 4. Pursuant to rules promulgated by this Court, Bar Counsel screens all complaints filed with the Professional Responsibility Program. A.O. 9, Rule 10(A). "If the conduct which is the subject of the complaint appears to constitute misconduct that may require disciplinary sanctions, disciplinary counsel shall investigate further to determine whether formal disciplinary proceedings should be pursued under Rule 11." A.O. 9, Rule 10(C). "Bar counsel may close or dismiss complaints, which, in bar counsel's judgment, do not require either formal investigation by disciplinary counsel or referral to an assistance panel." A.O. 9, Rule 10(D). "In such cases, Bar Counsel must inform the complainant in writing of the decision and the reasons therefor; and shall notify the complainant that he or she may seek review from the Board chair." A.O. 9, Rule 10(D).

         ¶ 5. Petitioner here filed a complaint with the Professional Responsibility Program in August 2018. Bar Counsel reviewed the complaint and dismissed it, explaining to petitioner the reasons for his decision. Upon petitioner's request, the Chair of the Professional Responsibility Board reviewed the matter and upheld Bar Counsel's decision. Petitioner then tried to appeal the Chair's decision to this Court. We dismissed the case, finding that petitioner had no right to appeal.

         ¶ 6. Petitioner has now filed a petition for extraordinary relief under Vermont Rules of Appellate Procedure 21. Rule 21 abolished the "extraordinary writs of certiorari, mandamus, prohibition, and quo warranto" and provides that "[a]ny relief that would have been available through those writs by original action in the Supreme Court may be sought only as provided for in this rule." V.R.A.P. 21(b)(1)-(2). A petitioner "must concisely set forth the reasons why there is no adequate remedy under these rules or by appeal or through proceedings for extraordinary relief in the superior court." V.R.C.P. 21(a)(3).

         ¶ 7. We conclude that petitioner lacks standing to pursue his petition for extraordinary relief. In Vermont, a court has "subject matter jurisdiction only over actual cases or controversies involving litigants with adverse interests." Brod v. Agency of Nat. Res., 2007 VT 87, ¶ 8, 182 Vt. 234, 936 A.2d 1286; see also In re Constitutionality of House Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949) ("The judicial power, as conferred by the Constitution of this State upon this Court, is the same as that given to the Federal Supreme Court by the United States Constitution; that is, the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction." (quotation omitted)).

         ¶ 8. "To satisfy the threshold requirement of standing, a plaintiff must present a real- not merely theoretical-controversy involving the threat of actual injury to a protected legal interest rather than merely speculating about the impact of some generalized grievance." Turner v. Shumlin, 2017 VT 2, ¶ 11, 204 Vt. 78, 163 A.3d 1173 (per curiam) (quotation omitted). "To meet this burden, a plaintiff must show (1) injury in fact in the form of an invasion of a legally protected interest, (2) causation, and (3) redressability." Id. (alterations omitted); see also Parker v. Town of Milton, 169 Vt. 74, 78, 726 A.2d 477, 480 (1998) (explaining that to have standing, "injury must be an invasion of a legally protected interest, not a generalized harm to the public" (quotation omitted)). Petitioner cannot satisfy these requirements.

         ¶ 9. In reaching our conclusion, we find persuasive a recent decision by the New Hampshire Supreme Court, In re Petition of Lath, 154 A.3d 1240 (N.H. 2017), which echoes the holdings of numerous other courts that have considered this issue. In Lath, the petitioners sought extraordinary relief, seeking to challenge the dismissal of a grievance that they filed against an attorney. After examining "the nature and purposes of the attorney disciplinary system," the court concluded that the grievants lacked "a personal interest in an attorney disciplinary proceeding . . . sufficient to confer standing." Id. at 1244. As the court explained:

[T]he purposes of attorney discipline include the protection of the public and the maintenance of public confidence in the bar. Attorney discipline is not intended to punish attorneys, nor does it exist as a means of redress for one claiming to have been personally wronged by an attorney. Instead, the real question at issue in a disciplinary proceeding is the public interest and an attorney's right to continue to practice a profession imbued with public trust.
As a consequence, disciplinary proceedings are not treated as lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent attorney. The grievant participates in the proceedings not to enforce his or her own rights, but to supply evidence of the alleged attorney malfeasance.

Id. (alterations and quotations omitted).

         ¶ 10. Consequently, as the Lath court explained, "no personal rights or remedies of the grievant are adjudicated in, or directly affected by, a disciplinary proceeding," and a "grievant neither receives a legally cognizable benefit when an attorney is disciplined, nor sustains a legally cognizable injury when the attorney is not disciplined." Id. at 1245. "[T]he only one who stands to suffer direct injury in a disciplinary proceeding is the lawyer involved," while "the benefit of attorney discipline is bestowed upon the public at large." Id. The court analogized the situation to a victim's role in a criminal prosecution, explaining that a private citizen generally "lacks a judicially cognizable interest in the prosecution or nonprosecution of another" because a crime is a public wrong and a matter between the state and the accused, rather than between the accused and the accuser. Id. (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). The court found "this logic applie[d] with equal force to the attorney disciplinary system." Id. Thus, for ...

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