ENTRY ORDER

201 9 VT 29

SUPREME COURT DOCKET NO. 2019

- 093

MAY TERM, 2019

In re John Paul Faignant, Esq. } Original Jurisdiction } }

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 hi s request. We agree with “every jurisd iction 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” (ci ting

cases ) )

.

¶ 2. Before turning to the merits, w e 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 su bject of th is 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 ha s 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 th is 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 disciplina ry 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,2

B ar C ounsel 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. P etitioner here filed a complaint with the Professional Responsibility Program in August 2018 . Bar C ounsel 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 B ar C ounsel’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 V ermont 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 provid ed 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. W e conclude that p etitioner 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. Re s. , 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 thresho ld 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. Sh umlin , 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

. ( al teration s 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 intere st, not a generalized harm to the public ” (quotation omitted))

. Pet itioner cannot satisfy th e se 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 hav e considered this issue. In Lath

, the petitioners sought extraordinary relief, seeking to challenge the dismiss al 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 t he court explained :

[ T ] he purposes of attorney discipline include the protection of the pub lic and the maintenance of public confidence in the bar.3 Attorney discipline is not intended to punish a ttorneys, 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 proce e dings not to enforce his or her ow n 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 b enefit 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 d i s c i plinary proceeding is the lawyer involved,” while “ the benefit of

atto r n e y disci pline 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 “lack s a judicially cognizable interest in the prosecut ion 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 l ogic applie[d] with equal force to the attorney dis ci pl i nary system. ” Id

. Thus, for these and other reasons, the court joined “ the many courts that have likewise held that a grievant does not have standing to challenge the disciplinary authority’s dispos ition of a grievance. ” Id

. (citing cases).

¶ 11. N umerous 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

, 814 S.E.2d at 134 (explaining that purpose of attorney discipline is “to protect the public, the courts, and the legal profession,” and once complaint is filed, “complainant’s i nterest in the case going forward is the same as all other members of the public

— to see a state agency protect the public from attorney misconduct by pursuing discipline for unethical behavior”) ; see also Akinaka v. Disciplinary Bd. of Haw

. Sup

. Ct

. , 979 P .2d 1077 , 1084 (Haw. 1999) (per curiam) ( reiterating that only person “ who stands to suffer direct injury in a disciplinary proceeding is the lawyer involved ,” and that “ complainant has no more standing to insert himself substantively into a license

- based discipline system than he has to compel the issuance of a license ”)

. As the Akinaka court observed, allowing complainants, “who have no actual stake in the outcome of disciplinary proceedings,” to force disciplinary
authorities “to conduct a full

- scale in vestigation and hearing into every complaint it receives,” regardless of merit, would be “an absurd waste of time and resources,” it would “effectively usurp the discretionary authority” given to state disciplinary authorities, and it would “distort the a im and purpose of the disciplinary process.” 979 P.2d at 1084.4

¶ 12. Like the states above , o ur 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 , 2019 VT 8, ¶ 73 (quotation omitted). To this end, the rules allow for the imposition of various sanctions against attorney s for misconduct. See A.O. 9, Rule 8 (identifying possible sanctions). The attorney

- discipline process does not provide “a means of redress for one claiming to have been personally wronged by an

attorn ey.” Cotton v. Steele , 587 N.W.2d 693, 699 (Neb. 1999). P etitioner cannot show any “ threat of actual injury to a protected legal interest” from Bar Counsel’s dismissal of his ethics complaint

, Turner

, 2017 VT 2, ¶ 11 , because the only individual “who sta nds to suffer direct injury in a disciplinary proceeding is the lawyer involved

, ” Lath , 154 A.3d at 1245. To conclude otherwise
would “ shift the focus of the disciplinary process from the public interest ” to a grievant’s “private interests,” thereby contr avening “ the essential purpose of the attorney discipline system

— to protect the public.” Lath , 154 A.3d at 1245.

¶ 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 th e 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

.

BY THE COURT:

Marilyn S. Skoglund, Associate Justice

Publish Beth Robinson, Associate Justice

Do Not Publish

Harold E. Eaton, Jr. , Associate Justice

Karen R. Carroll, Associate Justice