In re John Paul Faignant, Esq.
In re John Paul Faignant, Esq.
Opinion
ENTRY ORDER
¶ 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 "an allege injury sufficient to confer standing."
Boyce v. N.C. State Bar
,
¶ 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
,
¶ 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.A.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.
,
¶ 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
,
¶ 9. In reaching our conclusion, we find persuasive a recent decision by the New Hampshire Supreme Court,
In re Lath
,
[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.
¶ 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."
¶ 11. Numerous other courts have reached the same conclusion. Like the
Lath
court, they emphasize the nature and purpose of the attorney-discipline process and the limited role that a complainant plays in this process. See, e.g.,
Boyce
,
¶ 12. Like the states above, our attorney-discipline system serves "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."
Robinson
,
¶ 13. Petitioner offers no compelling argument to show standing. For all the reasons set forth above, we reject his argument that he (or his client) suffered an "injury in fact" from Bar Counsel's screening decision through "the violation of [his client's] constitutional right to trial free of conflicts." As previously discussed, the disciplinary process is not designed to vindicate the rights of a third-party complainant or that complainant's client. The Court has no "inherent power," as petitioner suggests, to dispose of standing requirements in extraordinary relief proceedings. Indeed, we note that the Lath court, like this Court, was presented with a request for extraordinary relief and dismissed for lack of standing. We reach the same conclusion here.
The petition for extraordinary relief is dismissed .
Reference
- Full Case Name
- In RE John Paul FAIGNANT, Esq.
- Cited By
- 6 cases
- Status
- Published