Won't Stand For It

A merry-go-round of litigation
In re Faignant, 2019 VT 29 (mem.)

By Andrew Delaney

I like Google Scholar a lot. In fact, that’s what I usually link to because the Judiciary is always fiddlin’ with its website and I never know if the links will work a week or two from now (go ahead—look at some of our older posts and click those links for a super-fun 404 error). Google’s links have a much better shelf life. But sometimes the Google’s pdf-to-text conversion gets it all wrong. In this case, for example, Google’s version says: “Do Not Publish” in bold type at the top. Wrong. This is a published entry order.

Now that my you-kids-get-off-my-lawn rant about the interwebs and its quirks is out of the way, let’s talk about what’s going on in this case.

The Professional Responsibility Board (PRB) administers the disciplinary program and Bar Counsel (BC) screens complaints. If it looks like a legit complaint, then BC refers it for formal investigation and proceedings. If BC reasons it doesn’t need to go further, then BC sends a letter explaining why and notifies the complainant that he or she can seek review from the board chair (which we won’t abbreviate here for obvious reasons).
  Reading between the lines here, another attorney did something that Attorney Faignant (petitioner) just couldn't stand, so petitioner filed a complaint with the PRB in August 2018. BC reviewed and dismissed it, explaining why. Petitioner asked the board chair to review and the board chair upheld BC’s decision. Petitioner tried to appeal to SCOV, but SCOV dismissed the case, concluding that petitioner had no right to appeal.

Not to be deterred, petitioner files a petition for extraordinary relief with SCOV.

Before getting to the merits, SCOV notes that petitioner’s request to add his client as co-petitioner because she was “subjected to the conduct complained of” isn’t worth getting into because neither petitioner nor his client have standing to pursue the case.

SCOV concludes that petitioner has no standing to bring his petition for extraordinary relief. It first notes that Vermont courts have “subject matter jurisdiction only over actual cases or controversies involving litigants with adverse interests.” To show standing, a plaintiff has to present a real controversy that involves threat of an actual injury to a protected legal interest. It can’t just be speculation “about the impact of some generalized grievance.” In terms of elements, a plaintiff must show: “(1) injury in fact in the form of an invasion of a legally protected interest, (2) causation, and (3) redressability.” SCOV concludes petitioner can’t make the cut.

SCOV reasons that attorney discipline’s purpose is to protect the public. It’s not an adversarial forum for litigants. The person who suffers direct injury is the potentially-to-be-disciplined lawyer, not the grievant. A direct action against the alleged-to-be-bad attorney is likely a different story.

If BC decides a case isn’t the kind of case that needs to be pursued by the PRB and the board chair agrees, then that’s the end of it—unless SCOV decides to get into the fray on its own.

SCOV points out that numerous other courts have reached the same conclusion. SCOV observes: “The attorney-discipline process does not provide ‘a means of redress for one claiming to have been personally wronged by an attorney.’” Because petitioner can’t show any “threat of actual injury to a protected legal interest” due to BC’s dismissal of his ethics complaint, it’s game over for this case.

SCOV rejects petitioner’s arguments in favor of standing (or for doing away with standing in a petition for extraordinary relief) and dismisses the petition for extraordinary relief.

I don't know about you, but I really want to know what the other attorney did here. There seems to be a lot of effort—even extraordinary effort—taken here to pursue the case. 


  1. Weird that only 4/5 justices signed this order with no indication why the 5th didn't?


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