Opinion
PC-2023-03468
07-25-2023
JOSEPH MCMANUS v. KELLY REILLY TRAVERS
For Plaintiff: Joseph McManus, pro se
For Plaintiff: Joseph McManus, pro se
DECISION
GIBNEY, P.J.
Now before the Court is Joseph McManus's motion to proceed in forma pauperis to allow the filing of a declaratory judgment action against the Supreme Court's Chief Disciplinary Counsel, Kelly Reilly Travers, and to serve process without payment.
Courts have the inherent power to allow a civil litigant to proceed in forma pauperis. Silvestro v. Almonte, 484 A.2d 900 (R.I. 1984). "[T]he burden of establishing indigency . . . remains at all times on" Mr. McManus. State v. Byrnes, 122 R.I. 110, 115, 404 A.2d 495, 498 (1979). To that end, Mr. McManus has provided an affidavit and sworn statement indicating that he is currently incarcerated and stating that he earns $90/month in income, has $900 in current court obligations, and otherwise has no assets. (Pl.'s Aff. in Supp. of Mot. to Proceed in Forma Pauperis.)
Nevertheless, indigency is not the only requirement to proceed in forma pauperis. Mr. McManus must show that he "is indigent and that the appeal is not frivolous[.]" Kelly v. Kalian, 442 A.2d 890, 892-93 (R.I. 1982) (emphasis added); see also Silvestro, 484 A.2d at 901 (holding that a trial court "has inherent discretionary power to waive a filing fee for an indigent plaintiff in the event that a justice of said court determines the plaintiff's claim to be meritorious").
As to the nature and viability of Mr. McManus's claim, he seeks a declaration that the Supreme Court Disciplinary Board erred in declining to take further action on Mr. McManus's disciplinary complaint against Attorney Robert W. Smith. (Compl. ¶ 21.) Attorney Smith allegedly handled probate of the estate of Mr. McManus's aunt in 2009. Id. ¶¶ 5-6. Mr. McManus claims he was due $35,000 from his aunt's estate, which he never received, and has accused Attorney Smith of various related ethical violations. Id. ¶ 18.
Mr. McManus has captioned his Complaint as a "Motion for Declaratory Judgment."
"The sine qua non of standing is that a plaintiff must have a personal stake in the outcome." Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 535 (R.I. 2013). The plaintiff must have (1) suffered an injury in fact, (2) caused by the conduct complained of-i.e., "'fairly . . . trace [able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court'"-and (3) the injury must be redressable by a favorable decision. Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Although Mr. McManus claims a $35,000 injury, an order of this Court requiring disciplinary counsel to conduct a rehearing on Mr. McManus's disciplinary complaint will not provide redress for that injury. Accord In re Faignant, 212 A.3d 623, 624 (Vt. 2019); Boyce v. N. Carolina State Bar, 814 S.E.2d 127, 133-34 (N.C. 2018); Petition of Lath, 154 A.3d 1240, 1245 (N.H. 2017); Lewis v. Slack, 955 A.2d 620, 625 (Conn. 2008); In re Request for an Investigation of an Attorney, 867 N.E.2d 323, 324 (Mass. 2007). Article III, Rule 3 of the Supreme Court Rules of Disciplinary Procedure allow for four types of attorney discipline: "(a) Disbarment by the Court; or (b) Suspension by this Court for a period not exceeding five (5) years; or (c) public censure by this Court; or (d) an order for restitution, community service, pro bono legal service, or substance-abuse treatment or other counseling." The Rules of Disciplinary Procedure do not provide a mechanism for challenging the probate of a will. Id. The proper action to attempt to redress Mr. McManus's claimed wrong would be a probate appeal in accordance with G.L. 1956 § 33-23-1.
This decision is not limited to the specific facts and posture of Mr. McManus's claim. More broadly, attorney discipline exists "as a means of redress for one claiming to have been personally wronged by an attorney," . . . [and] "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." Petition of Lath, 154 A.3d at 1244 (internal citations and quotations omitted). Consequently, "regardless of how [disciplinary counsel] ultimately addresses a grievance, no legally cognizable interest of the grievant is implicated in an attorney disciplinary proceeding." Id. at 1245.
Because an order of this Court would not redress Mr. McManus's claimed injury and because he does not have a personal interest in attorney disciplinary proceedings, Mr. McManus lacks standing to assert this claim against the Chief Disciplinary Counsel. Accordingly, Mr. McManus's request to proceed in forma pauperis is denied.