ENTRY ORDER

2019 VT 29

SUPREME COURT DOCKET NO. 2019-093

MAY TERM, 2019

In re John Paul Faignant, Esq. } Original Jurisdiction

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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, 
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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. 
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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 

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 disposition of a grievance.” Id.

(citing cases). 

¶ 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, 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 interest 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 investigation 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 aim 

and purpose of the disciplinary process.” 979 P.2d at 1084.
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¶ 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, 2019 VT 8, ¶ 73 (quotation 

omitted). To this end, the rules allow for the imposition of various sanctions against attorneys 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 

attorney.” Cotton v. Steele, 587 N.W.2d 693, 699 (Neb. 1999). Petitioner 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 stands 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 contravening “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 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. 

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