An attempt to use the law to shut up a  windmill critic fails

As a reward for her efforts to assist New Englanders threatened by industrial wind energy, citizen advocate Annette Smith was sued for practicing law. Fortunately this sham was resolved shortly, in favor of common sense

The Vermont Attorney General’s Office has closed its investigation into a complaint about Annette Smith’s actions in various proceedings before the Public Service Board (PSB). The Office has closed the investigation without further action. "This Office considers the matter closed," The AG's office said in a statement Monday.

Annette Smith has vigorously fought the complaint. In December 2015 the Office received a complaint regarding Smith alleging that her conduct in various matters before the PSB constituted the unauthorized practice of law. Specifically, Smith was accused of regularly providing legal advice to parties in proceedings before the Public Service Board, as well as helping to draft pleadings for those parties. The complaint also represented that the minutes of an October 26, 2015, Town of Morgan Selectboard meeting characterized a proposed payment to Annette Smith as attorney compensation.

The allegations regarding Smith fell in three broad categories – (1) she sought to represent individuals in proceedings before the PSB, (2) she sought or obtained attorney compensation from the Town of Morgan, and (3) she consulted with and prepared and filed pleadings for persons in PSB proceedings.

Regarding the first allegation, the record reveals that Smith sought to intervene in a matter pending at the PSB on behalf of her organization – Vermonters for a Clean Environment. The Vermont Supreme Court has recognized that in certain circumstances non-attorneys may represent organizations in judicial proceedings. Vermont Agency of Natural Resources v. Upper Valley Regional Landfill, 159 Vt. 454, 458 (1992). The record reveals that the PSB offered Smith and her organization the opportunity to file a friend of the court pleading in the matter. Thus, the PSB clearly did not oppose Smith’s participation as a non-party.

The complainant also alleges that Smith had sought or obtained attorney compensation from the Town of Morgan. Information obtained from the Town as part of this investigation establishes that at no time did Smith represent herself to be an attorney or seek compensation of any kind from the Town as an attorney or otherwise. Additionally, it does not appear that the Town has, in fact, paid her for services rendered to the Town. This Office concludes that there is no merit to this allegation.

Finally, with respect to the third category of allegations, the Vermont Supreme Court’s definition of the practice of law is not limited to actual appearances before judicial or quasi-judicial tribunals, but has been interpreted to extend to outside activities. This 54-year old definition does not, however, reflect the modern reality of advocacy before the growing number of judicial and quasi-judicial boards and commissions that have been created since its adoption. By way of example, a rule of the Natural Resources Board Act allows a person to be represented by a non-attorney while the PSB allows an organization, but not an individual, to be so represented. Clarification of the scope of the practice of law is needed. Any definition of the practice of law must recognize the diversity of advocacy before different forums at the state and local levels, should not abridge First Amendment rights, and should insure that Vermonters have access to justice.

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