Civil Server

Entering his fourth decade in the legal profession, John Franco, a Burlington lawyer born in Barre, has turned his attention toward civil litigation

by Pip Vaughan-Hughes

Growing up in the home of a state Legislator had a "very big influence" on John Franco, who runs his own legal practice in Burlington.

I never get bored with the law, "and I've been a lawyer for 26 years," says John Franco, who for the past six years has run his legal practice from a welcoming brick office at 110 Main St. in Burlington, Franco runs his own practice after years of working in a number of capacities for the City of Burlington, U.S. Rep-resentative Bernie Sanders, and a large legal firm. Franco now shares office space with another law firm, Welch Graham & Manby. "It was just something I decided to try," he says. "I work well on my own, and I'm self-reliant.

"Solo practice allows me to approach clients and develop cases in my own time," he continues. "Because the practice of law is really an art, you just can't produce quality work if you're under the gun or on an assembly line. It's a very creative process, and having the time to allow that creative process to unfold is the difference, very often, between success and failure."

"Because the practice of law is really an art, you just can't produce quality work if you're under the gun or on an assembly line."
John Franco

While Vermont is the second least populated state in the union and possibly because of this fact Franco says the legal climate is very competitive. By way of illustration, he drags a heavy tome from a drawer and drops it with a thud onto the desktop. "In a state of 600,000 people, this is the directory just for lawyers," he says. "So yes, it's very, very competitive." Having been in the legal business since the 1970s, Franco says most of his cases come through referrals, although he does reap business through advertising. "There's no question that my experience is a big factor in this. To really begin to be well-rounded as an attorney takes time. It takes 10 to 15 years of practice before you've handled enough different kinds of cases to give you the tools to problem-solve effectively for your clients. It makes you versatile and gives you transferable skills and self-reliance."

Franco is a Vermont native, born and raised in Barre, a working-class town rooted in the granite industry. The city has always put a really big emphasis on education, and especially higher education, which had a lot to do with the immigrant experience and that heritage, he says.

Franco's father was an auto dealer. His mother, Helen, was a Vermont state senator. She was the first Democrat to be elected in Washington County since the Civil War, he says proudly. Before she went into politics, she was a full-time homemaker and worked part-time on the school hot lunch program, cooking meals for high school students. She represented the town of Orange in the Legislature from 1964 to 1972. After that, she was secretary to the Vermont secretary of state. "Of course my mother's career had a very big influence on me," Franco says. "All of a sudden you had the governor coming over to your house. That was during the Hoff administration, and there was a real Camelot feel in the air at that time."

Franco says his mother never wanted him to go into the automobile business, which suited him fine since he never felt drawn in that direction. Legislation, politics and the law were beginning to take hold of his fascinations.

Law was in the back of his mind at undergraduate school, but after graduating he decided to take a year off to make up his mind about whether law school was the path for him. "It's good to take a break from the academic world," Franco says. He was a ski bum, but after a year he says he had his fill and knew he was making absolutely the right decision to attend Vermont Law School. "For a year after I passed the bar exam, I would wake up every morning and pinch myself because I couldn't believe I was actually a lawyer." Franco spent the first 3 1/2 years of his legal career in Burlington as a public defender for Chittenden County and in 1982, he moved into the Burlington City Attorney's office as the assistant city attorney.

That was the most varied and interesting job he says he's ever had. During that time, he worked on a couple of major projects a major suit over the Burlington waterfront about who owned it and who had the right to develop it and one involving the cable television area during the mid-'80s, which ended with the city getting a multimillion dollar settlement from the cable company.

Franco served under city attorney Joe McNeil. The two first met when Franco was a law student at Vermont Law School, and McNeil delivered a seminar on labor law and relations. "That was our first mental skirmish," McNeil says. Adding that their legal relationship cemented during their tenure together has blossomed into a friendship that continues today.

"Opening your own legal practice is very difficult in today's world. It takes a lot of guts to do something like that," McNeil says. "I think he's doing more than making a go of it; I think he's doing damn well.

While Franco held the title of assistant city attorney, he says he seriously considered leaving criminal law. "Although many attorneys think differently, I find criminal practice to be very taxing emotionally," Franco says.

"Opening your own legal practice is very difficult in today's world. It takes a lot of guts to do something like that,">
Joe McNeil

He ended his service to Burlington in 1991 and went to Washington, D.C., as the legislative director for Sanders. "I really didn't enjoy Washington," Franco admits. "I found myself missing Vermont. Most staffers are in their 20s, just out of grad school. I was 40. It just wasn't the best use of my skills, so I came back to Burlington and worked in a private law firm for four years." Then, in February 1995, he decided to set out on his own and hung out his shingle.

Since then, Franco's specialty has been civil litigation. He's worked on an interesting variety of cases, he says. He handled one case for a group of people involved against a man who's since been convicted for Federal maple sugar fraud, he says, and he's currently involved in a case where he's the local agent for Lloyds of London.

Franco won't hazard a guess as to how many cases he handles in a given year. "In civil litigation, things move fairly slowly," he explains, "unlike criminal cases, which turn around very quickly." The Lloyds case, he says, has been pending since 1994 and involves litigation of coverage from 1989. Cases like that one can seem like the "case from hell – they never go away," Franco laughs.

Some of Franco's homeowner cases involve Act 250. He says he is not advocating scrapping the environmental impact law, but thinks the law "isn't consistent."

There is a growing trend in cases being settled through mediation. Opponents of this trend say it's taking a toll on the fundamental principle of the American legal system: the jury. Proponents counter that jury trials are backlogged as it is. "Mediation is good. It gets parties talking; it gets them to see a disinterested point of view," Franco says.

"People tend to fall in love with their positions, and that clouds their objectivity," he says. "Every mediation I've had has been successful. But with a trial you can win the jackpot or end up rolling snake-eyes. And lots of juries are increasingly skeptical of lawsuits since the O.J. Simpson trial, believe it or not. But mediation doesn't bypass the jury system; it's just an option before a case goes to trial."

Mediation took off in Vermont when the Federal Court adopted a mediation system by local rule, he continues. The Supreme Court has not required mediation as part of civil procedure, but local courts, including those in Chittenden County, require it. "It's been very, very successful," Franco says of mediation. The goal of the mediator is to identify what a case is reasonably worth and whether he can get both parties to negotiate, Franco says. He had one case that was rather contentious there was a lot of bad blood but he says mediation allowed both parties to reach a creative resolution.

With the Legislature looking at possible refinements to the law and construction season starting up, one of the more newsworthy cases Franco deals with involves Act 250, Vermont's environmental impact law; he says he has four or five cases involving Act 250. They tend to be homeowner cases, he says, not multimillion dollar ones. One of the more interesting Act 250 cases he's handling involves a landfill in White River Junction. "But I don't concentrate on that kind of case. I've handled commercial and residential landlord cases, employment termination cases.

Franco's acquaintance with Vermont's often controversial Act 250 goes back to its origin in 1969 when his mother was in the Legislature. In Franco's view, the law was crafted to provide an overview for cases that were large enough to have environmental impacts of statewide concern. He says that changed when the appeal process to the Superior Court on Act 250 matters was eliminated.

"The Superior Court probably felt that eliminating the appeal would streamline the system, but in my own judgment it set in motion the creation of a very procedurally complex system a whole body of law that's out of control. It gave the Environmental Board an enormous amount of power that, clearly, the Legislature had never contemplated in 1969. As a result, it's become procedurally very complicated, very daunting for anyone without deep pockets."

One of the problems is that the political climate doesn't lend itself to thoughtful rethinking of what legislators were initially trying to accomplish with Act 250, Franco says. "The basic problem, as I see it, is that Act 250's paradigm needs to be revisited. Now we have people campaigning for Act 250 reform, but when they get into power they don't address the problem.

"I've never had a good experience with Act 250," Franco admits. "Fair-minded people need to step back and have a discussion about what the act should be for. Nothing that's been proposed so far in the Legislature approaches the fair-mindedness that's required. If you say this kind of thing, you get labeled as anti-environment in this political climate," he says, "but Act 250 just isn't consistent."

A lot of the time the law winds up hanging up the smaller business but has been an abject failure in stopping big businesses such as those in Taft Corners, he says. "The full majesty of the law descends on the smaller guy, not on Wal-Marts and deep pockets. In fact, Taft Corners is really the poster child for the failure of Act 250. You can make an argument that it hasn't achieved what it was designed to achieve. You can make the case that it has failed in its mission."

Franco emphasizes he's not advocating scrapping Act 250, "but it's become both a media sweetheart and a whipping-boy," he argues. "That's what prevents rational discussion."

Given his political background and his continuing interest in matters legislative, one gets the idea Franco might be a prime candidate for a career in politics. Even so, it'll have to wait. "As they say, 'politics is for young people or old people,'" he smiles. "At this stage in my life I've got too much going on. I have a family and a busy legal career."

Franco is married to Kathi McCaffrey, is a sales associate for Von Bargen's Jewelers. Franco's two stepsons are in high school. Ryan is a sophomore, and Sean will attend the University of Vermont in the fall.

"I have two recreational passions," says Franco. One of them is obvious from the framed photograph of him descending a ski-slope in a flurry of powder that hangs on the wall among the diplomas and certificates of his profession. "I've skied since I was 5. I'm also a golfer – I picked it up in junior high, but in those days no self-respecting hippie played golf."

Originally published in May 2001 Business People-Vermont