Rhod e Isl and Bar Journal Rhode Island Bar Association Volume 60. Number 4. Janua ry/February 2 012
Modest Proposals for Rhode Island Superior Court Reform Arbitration and the Unauthorized Practice of Law Rhode Island Municipal Insolvency Lite Creative Receivership and Redevelopment RHODE I SLAND Bar Association 1898 17 28 RHODE ISLAND BAR ASSOCIATION LAWYER’S PLEDGE As a member of the Rhode Island Bar Association, I pledge to conduct myself in a manner that will reflect honor upon Articles the legal profession. I will treat all participants in the legal process with civility. In every aspect of my practice, I will be 5 Help Our Bar Foundation Help Others honest, courteous and fair. Michael A. St. Pierre, Esq. Editor In Chief , David N. Bazar 7 Modest Proposals for Rhode Island Superior Court Reform Editor , Frederick D. Massie David A. Wollin, Esq. Assistant Editor , Kathleen M. Bridge Editorial Board 13 Arbitration and the Unauthorized Practice of Law: A Legal Drama Victoria M. Almeida, Esq. Bryan W. Hudson, Esq. in Two Acts Ellen R. Balasco, Esq. Hon. Patricia A. Hurst Ernest G. Mayo, Esq. Susan Benfeito, Esq. Marcia McGair Ippolito, Esq. Moshe S. Berman, Esq. Tobias Lederberg, Esq. 19 Rhode Island Municipal Insolvency Lite Roland E. Chase, Esq. Courtney L. Manchester, Esq. Guy R. Bissonnette, Esq. Jerry Cohen, Esq. Ernest G. Mayo, Esq. Debra Conry, Esq. Elizabeth R. Merritt, Esq. 27 Lunch with Legends: Trailblazers, Trendsetters and Treasures Eric D. Correira, Esq. Kerri M. Morey, Esq. of the Rhode Island Bar Diane B. Daigle, Esq. Matthew R. Plain, Esq. William J. Delaney, Esq. Kevin N. Rolando, Esq. Matthew R. Plain, Esq. and Elizabeth R. Merritt, Esq. Anastasia Dubrovsky, Esq. Miriam Ross, Esq. Matthew Louis Fabisch, Esq. Krista J. Schmitz, Esq. 29 Oh, Canada! American Bar Association Delegate Report: Kevin J. Gallagher, Esq. Elliot Taubman, Esq. ABA Annual Meeting Maureen D. Gemma, Esq. Timothy C. Twardowski, Esq. Robert D. Oster, Esq. Jay S. Goodman, Esq. Harris K. Weiner, Esq.
31 Creative Receivership and Redevelopment: A Commentary Executive Director , Helen Desmond McDonald W. Mark Russo, Esq. Association Officers William J. Delane y, President Michael R. McElroy, President-Elect J. Robert Weisberger, Jr. , Treasurer Bruce W. McIntyre, Secretary
Direct advertising inquiries to the Editor, Frederick D. Features Massie, Rhode Island Bar Journal, 115 Cedar Street, Providence, RI 02903, (401) 421-5740. 3 Reflections on the Bar: 33 Lawyer Morse and Judge Hurst USPS (464-680) ISSN 1079-9230 Past, Present and Future Honored for Practical Guide to Rhode Island Bar Journal is published bimonthly by 6 Bogus Email Scam Claims Rhode Discovery and Depositions the Rhode Island Bar Association, 115 Cedar Street, Island Bar Referral 40 SOLACE – Helping Bar Members Providence, RI 02903. PERIODICALS POSTAGE PAID AT PROVIDENCE, RI 17 Captain Michael P. Jolin Presents Bar in Times of Need With US Flag and Citation 41 Lawyers on the Move Subscription: $30 per year Postmaster 21 New Bar Members and Committee 42 In Memoriam Send Address Correction to Rhode Island Bar Representatives Meet and Mingle at 43 Advertiser Index Journal, 115 Cedar Street, Providence, RI 02903 Speed Networking Event www.ribar.com 25 Continuing Legal Education 28 Bar’s Volunteer Lawyer Program and Front Cover Photograph Westerly Town Hall, by Brian McDonald RWU School of Law Free Family Mediation Clinic
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Cert no. XXX-XXX-000 Reflections on the Bar: Past, Present and Future
As a departure from the usual format for Meetings were a fun time for all of us because, Bar President’s Messages, I am sharing my letter for the most part, all of us felt like we were to my son, Brendan, in which I extolled the joined together in the practice of law. values of our Bar Association. I hope you enjoy Those carefree days, or at least for those two it as much I as enjoyed writing it. glorious days, have given way to mandatory continuing legal education, and for young Dear Bren, lawyers, an explosion in the price of their legal By the time you get this, it will be January, education, as well as significant cost increases the start of the New Year. I wanted to give you in almost everything else. These changes have an update on what our new lawyers are up to, greatly impacted our profession and particularly and what we at the Bar Association are doing our newest lawyers. Today’s new lawyers often William J. Delaney, Esq. to help them along their professional careers. have the unenviable task of balancing a career President As you know, I attended five bar admission with staggering student loans and, unfort unately, Rhode Island Bar Association ceremonies this past November at the Supreme in a very few cases, mortgage payments that prior Court. At each of the ceremonies, one of the generations of lawyers never had to address. Supreme Court Justices administered the These extraordinary economic conditions Attorney’s Oath to approximately 180 newly- demand more from the Bar Association in admitted attorneys. Continuing the tradition proving its value and commitment to new and established by past Bar President Vicky Almeida seasoned lawyers alike. The Bar’s New Lawyers a few years ago, I presented quill pens to each Committee offers networking opportunities for new attorney along with a warm welcome on new members to share ideas and concerns behalf of the Bar Association. among themselves in a friendly and supportive …extraordinary With these new members, there are now setting. I specifically attended the first meeting economic condi - approximately 6,500 members of the Bar of the New Lawyer’s Committee and came away Association, with over 1,800 admitted in the with a greater understanding of their needs and tions demand last ten years. This statistic, while perhaps desires and suggestions of what they are inter - more from the overwhelming, is, in fact, welcomed by the ested in learning about the practice of law. Bar Association. As you know from your college experience, Bar Association However, passing the bar examination only the proliferation of computers in your under - in proving its establishes minimum competency on the part graduate years carried through to graduate of each successful candidate. As you may school and your professional life. During their value and commit - remember when you were much younger, those law school experiences, most students’ legal ment to new and weekends when I was sitting in our den pouring research needs were met by unlimited and free over law and case books (and not paying as access to online legal research engines. With seasoned lawyers much attention as I should have to you) clearly graduation, however, their ability to continue to alike. illustrated my need to prepare arguments for use school-supplied legal research engines dried the Court the following Monday. And, through - up. Fortunately, the 24/7CASEMAKER legal out those times, I relied on materials prepared research library is a free member benefit put by other Bar members for assistance in my to use on a daily basis by most of our members. clients’ representation. Additionally, through Bar reviewed and co- I recall, many Junes ago, taking you to the sponsored membership benefit programs, Bar Bar Association’s annual meeting in Newport members may secure reduced cost malpractice, which always seemed to take place on the business owners’, personal lines, and disability sunniest Thursdays and Fridays. There, I insurance, as well as retirement programs. Our introduced you to some of my oldest Motion firm has taken advantage of several of the mem - Calendar friends and their children who are ber benefits offered by the Bar Association, now, like you, in their late 20s. I remember and, over the years and into today, benefits are taking a sail with at least ten of you kids under expanded and added to meet members’ needs the Newport Bridge with you in a life vest that and expectations. was at least two sizes too small. Those Annual You attended part of last June’s Bar Annual
Rhode Island Bar Journal January/February 2012 3 Meeting including the dinner when family, probate, and administrative law RHODE ISLAND BAR JOURNAL Rhode Island Supreme Court Chief to mention a few. We believe the OAR Editorial Statement Justice Paul Suttell administered my Bar Program will provide new practitioners The Rhode Island Bar Journal is the Rhode Island Bar Association’s official magazine for Rhode Island President’s oath. These Annual Meetings with the help they are seeking. attorneys, judges and others interested in Rhode Island offer members the choice of over forty You know of my deep personal com - law. The Bar Journal is a paid, subscription magazine Continuing Legal Education (CLE) semi - mitment to provide legal assistance to published bi-monthly, six times annually and sent to, among others, all practicing attorneys and sitting judges, nars representing a myriad of legal topics those who are unable to afford conven - in Rhode Island. This constitutes an audience of over ranging from administrative law to zon - tional engagements. The good news is 6,000 individuals. Covering issues of relevance and pro - ing. This past June, approximately 1,400 that the Bar has a range of excellent pub - viding updates on events, programs and meetings, the Rhode Island Bar Journal is a magazine that is read on members attended the Annual Meeting, lic service programs and projects, includ - arrival and, most often, kept for future reference. The and I hope we can attract this many and ing, but not limited to the Volunteer Bar Journal publishes scholarly discourses, commen - more to the upcoming meeting this year. Lawyer Program, which provides new tary on the law and Bar activities, and articles on the administration of justice. While the Journal is a serious The Bar Association’s CLE director, lawyers with mentors on accepted cases, magazine, our articles are not dull or somber. We strive staff and volunteers also do an outstand - the United States Armed Forces Legal to publish a topical, thought-provoking magazine that ing job of soliciting and producing CLE Services Project, and the Pro Bono addresses issues of interest to significant segments of the Bar. We aim to publish a magazine that is read, seminars throughout the year, ranging Program for the Elderly. It is my hope quoted and retained. The Bar Journal encourages the from lunch, full day and evening presen - that, notwithstanding these trying eco - free expression of ideas by Rhode Island Bar members. tations, furnishing new and seasoned nomic times, every member of the Bar The Bar Journal assumes no responsibility for opinions, statements and facts in signed articles, except to the members alike with knowledge and skill will participate in one of the Bar’s won - extent that, by publication, the subject matter merits enhancements for their practices. In addi - derful public service programs. It is attention. The opinions expressed in editorials represent tion, members also receive the opportuni - always heartwarming to present the Pro the views of at least two-thirds of the Editorial Board, and they are not the official view of the Rhode Island ty to attend a free ethics seminar for Bono Publico Awards to deserving Bar Bar Association. Letters to the Editors are welcome. credit along with discounts on malprac - members, particularly when the recipient Article Selection Criteria tice policies from, Aon, the Bar’s affinity is a new Bar member. • The Rhode Island Bar Journal gives primary prefer - program insurance provider. So there you have it, Bren. See what ence to original articles, written expressly for first publication in the Bar Journal , by members of the The Bar is on the cutting edge of tech - you missed by choosing not to practice Rhode Island Bar Association. The Bar Journal does nology, providing all of us with opportu - law? But, seriously, I hope you can sense not accept unsolicited articles from individuals who nities to attend online, CLE webinars and the pleasure the Bar Association, and are not members of the Rhode Island Bar Association. Articles previously appearing in other publications the like from the comforts of our office, particularly Executive Director Helen are not accepted. a perk that, down the line, will have McDonald has furnished me these past • All submitted articles are subject to the Journal’s greater impact for the profession as we 24 years and what it provides our new editors’ approval, and they reserve the right to edit or reject any articles and article titles submitted for all move into the technological age. These lawyers today and down the line. publication. are exciting times from an educational As you know, being a Rhode Island • Selection for publication is based on the article’s standpoint alone, and the Bar Association attorney has been the greatest profession - relevance to our readers, determined by content and timeliness. Articles appealing to the widest range of is keeping pace, providing all of our al honor bestowed upon me, and I treas - interests are particularly appreciated. However, com - members with reasonably priced, efficient ure my 24 years as a Rhode Island Bar mentaries dealing with more specific areas of law are educational and professional offerings. Association member. I am proud to be a given equally serious consideration. • Preferred format includes: a clearly presented state - As important as the Bar’s educational member of an organization dedicated to ment of purpose and/or thesis in the introduction; contributions, are the Bar-sponsored treat me and my colleagues well, as well supporting evidence or arguments in the body; and opportunities, for new and seasoned as to help us better serve our clients and a summary conclusion. • Citations conform to the Uniform System of Citation attorneys alike, to seek guidance from the public at large. What more can you • Maximum article size is approximately 3,500 words. their more experienced colleagues. ask for? However, shorter articles are preferred. Recognizing the value of these relation - Take care and keep warm, Bren. I look • While authors may be asked to edit articles them - selves, the editors reserve the right to edit pieces for ships, and in addition to the wonderful forward to seeing you on June 14th, the legal size, presentation and grammar. opportunities afforded by Bar committee night of the Annual Meeting Dinner. In • Articles are accepted for review on a rolling basis. memberships, over the past year, the Bar the meantime, be assured that the new, Meeting the criteria noted above does not guarantee publication. Articles are selected and published at the Association has developed and launched young, seasoned, and older lawyers of the discretion of the editors. the Online Attorney Resource Program Rhode Island Bar Association are grow - • Submissions are preferred in a Microsoft Word for - (OAR) to make these connections faster ing in their practices each and every day. mat emailed as an attachment or on disc. Hard copy is acceptable, but not recommended. and easier. And Rhode Island, as well as our country, • Authors are asked to include an identification of their The OAR program’s goal is to match will be better served by their practices. current legal position and a photograph, (headshot) experienced volunteer attorneys willing Love, preferably in a jpg file of, at least, 350 d.p.i., with their article submission. to provide assistance to new, and even Dad old, attorneys concerning particular prac - Direct inquiries and send articles and author’s photographs for publication consideration to: tice areas based on the volunteer’s profes - Rhode Island Bar Journal Editor Frederick D. Massie sional knowledge and experience. We are I wish a healthy and prosperous new email: fmassie @ribar.com currently inviting Bar member volunteers year to all my friends and colleagues of telephone: 40 1-421-5740 to join OAR and provide assistance to the Rhode Island Bar! O Material published in the Rhode Island Bar Journal remains the property of the Journal , and the author their colleagues in practice areas including consents to the rights of the Rhode Island Bar Journal to copyright the work.
4 January/February 2012 Rhode Island Bar Journal Help Our Bar Foundation Help Others
As you may be aware, over the last several general foundation and we are working toward years, we have seen a significant decrease in that objective. The Bar Foundation needs more Interest on Lawyers Trust Accounts (IOLTA) revenue allocated for the general operating costs income. Given the severe downturn in real associated with staying in business, such as estate activity, and the precipitous decline of maintenance of the Rhode Island Law Center, interest rates paid by financial institutions which services our Bar Association CLE pro - which administer IOLTA accounts, we are clear - grams, legal clinics, mediation programs, law ly far below the IOLTA levels we enjoyed in related education programs, and serves many prior years. Of course, the real victims of these other purposes. We need more revenue as well circumstances are the IOLTA grantees we have to maintain the administration of other vital serviced for so many years. programs such as the Thomas F. Black, Jr. Michael A. St. Pierre, Esq. As you know, the IOLTA fund provides sig - Memorial Scholarship Program which we have Rhode Island Bar Foundation nificant contributions to Rhode Island Legal been so fortunate to maintain for many years President Services, the International Institute, the Rhode and benefiting numerous award winners who Island Legal Educational Partnership Program have gone on to do great things in the law. and many other worthy entities. These grantees You, as lawyers, know, first-hand, the barriers are certainly suffering devastating cuts not only that low-income and disadvantaged people en- from our IOLTA program, but from other counter when trying to access the justice system. sources of income as well. What I am asking in these dire times, is that This situation is certainly not unique to each of you consider making a contribution to You, as lawyers, Rhode Island. Across our country, Bar Founda- the Bar Foundation to help us address these know, first-hand, tions have been and continue to struggle with challenges, maintain the viability of our Rhode severe decreases in income while addressing an Island IOLTA program, and continue to benefit the barriers that increase in need from grantees. Indeed, many those most in need of our good counsel and low-income and of our fellow Bar Foundations have effectively services. May I be so bold as to suggest at mini - closed their doors to their IOLTA programs. mum the equivalent of one billable hour as a disadvantaged The net effect, of course, is a devastating blow fair contribution? people encounter to low income people most in need of our serv - Please complete and return the form on the ices, their health and safety remain at risk and following page if you choose to contribute to when trying to the impact on the elderly, victims of domestic the Foundation at this time. Thank you so very access the justice violence, the disabled, children, veterans, and much for your support, and please accept my others is incalculable. sincere wishes to you and your family for health, system. On one hand, I am proud to say that the happiness and peace in this new year. O Rhode Island Bar Foundation IOLTA Program has survived these circumstances. This is due, largely, to the hard work of the Board of Directors, and the finance and grant committee members who long ago recognized the need to have a reserve on hand in the event that there were some vagaries in the interest markets or the real estate markets. However, having said that, and despite our conservatism and our reserve accounts, we too have had to substan - tially cut our funding to our grantees, nearly 75% in the last three years alone. Bottom line is we need your help. For the IOLTA program to stay viable, more operating costs now need to be absorbed by the
Rhode Island Bar Journal January/February 2012 5 Rhode Island Bogus Email Bar Founda tion Scam Claims Rhode Island Bar
Founded in 1958, the Rhode Island Bar Foundation is the non-profit Referral philanthropic arm of the state’s legal profession. Its mission is to foster and maintain the honor and integrity of the legal profession and to study, Bar members are receiving emails improve and facilitate the administration of justice. The Foundation from individuals and companies receives support from members of the Bar, other foundations, and from claiming they were referred by the honorary and memorial contributions. Rhode Island Bar Association. The Bar Association does not refer Today, more than ever, the Foundation faces great challenges in funding its clients to lawyers except through good works, particularly those that help low-income and disadvantaged the Rhode Island Bar Association’s people achieve justice. Given this, the Foundation needs your support and Lawyers Referral Service (LRS) . Only members of LRS receive client invites you to complete and mail this form, with your contribution to the referrals, and these referrals are Rhode Island Bar Foundation. always accompanied by an official confirmation from the Rhode Help Our Bar Foundation Island Bar Association. According to the Office of the Disciplinary Help Others Counsel: In this particular scam, the client claims to be residing or traveling out of the country and RHODE ISLAND BAR FOUN DATION GIFT looking to buy either commercial or residential real estate. Once the PLEASE PRINT connection with the lawyer is made, the client forwards a substantial My enclosed gift in the amount of $ ______check to be used as a down pay - Please accept this gift in my name ment/cash purchase. The client later or has a change of heart and asks for a refund, minus, of course, a fee for In Memory of ______the attorney’s time. The lawyer is or instructed to send the client’s In Honor of ______refund by wire transfer. Only after the funds are wired out, it is dis - covered the original check is coun - Your Name(s) ______terfeit. In more sophisticated cases, Address ______the attorney is contacted by a local, City /Stat e/Zip ______reputable, real estate company to act on the client’s behalf. The attor - Phone (in case of questions) ______ney wrongly assumes the real estate Email: ______company has vetted the client. One Rhode Island attorney lost over Please mail this form and your contribution to: $100,000 this way. The most Rhode Island Bar Foundation sophisticated scammers send in an actual person posing as a client 115 Cedar Street who pretends to be very wealthy Providence, RI 02903 and asks the attorney to act as his or her agent in a purchase, claiming Questions? Please contact Virginia Caldwell at 421-6541 that if the seller knew the buyer’s or gcaldwell @ribar.com identity, he or she would bump up the price.
6 January/February 2012 Rhode Island Bar Journal Modest Proposals for Rhode Island Superior Court Reform
Under the leadership of Presiding Justice Alice more expeditious than litigation and eliminates Gibney, the Superior Court has done yeoman’s the need for appeals. Parties tend to be more work in moving civil cases through the judicial satisfied with outcomes upon which they have system. These recent efforts are designed to mutually agreed than those imposed upon them reduce the backlog of cases and ensure that liti - by a judicial decision-maker such as a judge or gants receive their day in court in a timely man - jury. The process also allows for the parties to ner. As former Chief Justice Warren Burger has have more control over the outcome and to observed, “A sense of confidence in the courts craft their own customized agreements to cover is essential to maintain the fabric of ordered the spectrum of disputed issues. In this way, liberty for a free people,” and one of the main the parties can feel they have a greater voice in things that could “destroy that confidence and the final result and this, in turn, enhances the David A. Wollin, Esq. do incalculable damage to society: that people prospect of future compliance with the terms Adler Pollock & Sheehan P.C., come to believe that inefficiency and delay will of the settlement. 1 Providence, RI drain even a just judgment of its value.” In that spirit, I offer ten proposals for reform - 2. Scheduling Orders Governing Discovery ing current practice to augment the commend - Cases filed in Superior Court, with certain able efforts being undertaken in the Superior exceptions, do not have scheduling orders gov - Court. Many of these proposals can be imple - erning discovery. 3 When a lawsuit is filed, there mented immediately. A few require retooling of are no deadlines for disclosure of experts, the existing procedures. Each one owes its origin to closure of discovery or even the filing of sum - … ten proposals the federal system, the experience of other state mary judgment motions. As a result, parties are for reforming court systems or recent developments in our free to conduct discovery right up to the eve of own court. trial. Indeed, because there is no obligation for current practice plaintiffs to disclose experts by any particular to augment the 1. Mandatory Mediation deadline, many defendants hold back until they Courts are designed to resolve conflict. They see the plaintiffs’ expert case, thereby creating commendable can do so in a number of ways, most notably delay in a system that is ripe for foot-dragging. efforts being through full-blown litigation or alternative dis - At the outset of the case, a scheduling order pute resolution (ADR) . The Superior Court’s should issue establishing deadlines for disclo - undertaken in the highly successful “Settlement Week” is an excel - sure of plaintiffs’ expert witnesses, if any, and Superior Court. lent example of the latter approach .2 Mediation then the defendants’ experts, the close of dis - is also required in medical malpractice cases. covery, and the filing of summary judgment There is no reason why ADR cannot occur early motions. Each scheduling order should establish on in every case. an eighteen-month deadline for discovery to Mediation should be required after a lawsuit end, subject to modification by the court upon has been pending for three months, even if a the parties’ request. Expert deadlines can be set dispositive motion is pending. The mediation beginning at the one-year mark. Summary judg - should be scheduled within the succeeding three ment motions, while they may be filed at any months and require the presence of the parties. time, should be required no later than thirty The parties can draw on the mediation services days after discovery has concluded. Except in available in the court system or retain a private large or complex cases, a lawsuit that lingers mediator if they so choose. With the Rhode longer than two years is a drag on the system Island Bar Association’s cooperation, mediators and the litigants. who will need to be recruited should be given Scheduling orders now an integral part of Continuing Legal Education credit for each case medical malpractice cases, have been routinely mediated. used in the federal courts with excellent results The benefits of mediation are legion. In and should provide significant benefits by broadest terms, mediation is less expensive and focusing the parties and their attorneys on the
Rhode Island Bar Journal January/February 2012 7 10 Weybosset Street, Suite 205 • Providence, RI 02903 Tel: (401) 455-3500 Fax: (401) 455-0648
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8 January/February 2012 Rhode Island Bar Journal task at hand. The deadlines should Absent cooperation among the parties’ requirement should reduce the delay that encourage the participants to work expe - counsel, many months are often expend - often results in personal injury cases from ditiously toward resolution of the case. ed while the plaintiff’s counsel collects the collection of medical records. While Staggered expert disclosures will ensure the records, opposing counsel spar over many plaintiffs’ counsel appreciate that fairness in the process by giving plain - the scope of the requests, and the court medical records are a priority, this certain - tiff’s counsel adequate time to prepare grapples with the inevitable fallout when ly should become the norm in all cases. their respective experts and providing good-faith efforts at compromise fail to By the same token, counsel for both par - defense counsel sufficient notice of the succeed. ties will have assurances that there is a plaintiffs’ expert theories to prepare an Counsel for the parties in any case mechanism in place for prompt resolution appropriate response. The discovery clo - involving personal injuries should be of medical-records issues. The result sure will allow the parties to prepare for required to meet and confer within nine - should be a win-win for both sides and trial, if necessary, without the worrisome ty days of the filing of the lawsuit to lead to greater focus on the merits of the prospect that more discovery will be discuss the scope of the medical records case. sought by the opposing side as trial nears. requests and the mechanism and timeline for achieving those records. If there is 4. Status Conferences With The Court 3. Mandatory Meetings On The Status agreement, an appropriate subpoena After One Year Of Medical Records In Personal Injury can be crafted to ensure that health care After a lawsuit has been filed, with the Cases providers timely produce all the relevant exception of medical malpractice cases, In personal injury cases, significant information. After the meeting, if any there normally is little or no judicial delays can result from the collection of disputes remain, the parties should be supervision, absent motion practice, prior the plaintiff’s medical records and in required to raise them before the court to a control calendar call. By that time, seeking to resolve disputes over the scope within thirty days so that a prompt deter - however, the case could have been pend - of relevant documents. Often, the plain - mination can be achieved. If receipt of ing in the court system for many years. tiff’s counsel prefers to control the gath - medical records reveals the need for fur - In fact, if the parties’ attorneys take few ering of such records and to limit their ther discovery, neither party would be steps to move the case forward, it can time-frame. Defense counsel, by contrast, precluded from raising additional issues languish in the system far too long. seeks to expand the scope of relevancy at a later date. These requirements should A status conference with a judicial by including the records in years before be made part of the standard scheduling officer should be required at the first-year the injuries and to gather the documents order issued when the lawsuit is filed. anniversary in every case. The purpose through subpoena or medical release. The foregoing meet-and-confer of the conference would be to discuss
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Rhode Island Bar Journal January/February 2012 9 the progress of discovery, any problems encountered or anticipated in the litiga - tion, and the likelihood of dispositive motions when discovery has closed. The prospects for resolving the case through settlement, ADR or trial should be addressed as well. In the long run, meaningful judicial supervision will ensure that cases receive the attention they deserve and that the parties and their counsel appreciate their particular role in moving them toward a timely conclusion. These status confer - ences should motivate sluggish counsel facing the one-year anniversary to step . up their efforts. Few attorneys will want to approach the judicial officer at the - status conference with a blank to-do list. . 5. Automatic Assignment To The Trial - Calendar After Two Years Currently, cases are not placed on the , trial calendar unless one of the parties files a motion. In Providence County, for . instance, the moving party must certify . that discovery in the matter is “substan - . tially complete,” which means there is . no outstanding discovery that will delay 4 . the trial when the matter is reached . An opposing party can object to the assign - . ment, arguing that the standard has not .. been met. Absent a motion, however, . cases can remain in limbo, despite the . , . length of time they have been pending. . If the proposals above are implement - ed, most cases should be ready for trial . , Of Counsel in two years, though larger or more com - plex cases, usually with multiple parties, will need more time. In the vast majority of cases though, discovery will be com - · , pleted within two years and cases should () - · () - · . . receive automatic assignment to the con - tinuous jury or non-jury trial calendar. This should be the rule rather than the exception. Automatic assignment has the virtue of driving cases toward trial or perhaps even settlement. At the same time, the parties’ counsel will recognize that they High End Value must complete discovery lest they pro - ceed, unprepared, at trial. To the extent that automatic assignment poses problems Calart Tower for parties or attorneys in a given case, Providence address, Cranston convenience the court retains the authority to grant (401) 965-7771 an appropriate extension and relieve one side or the other of the hardship. SelectSuites 6. Abolition of Conditional Orders Shared office environments Of Dismissal A major aspect of court practice that
10 January/February 2012 Rhode Island Bar Journal undermines the prospect of prompt reso - lution of cases is the conditional order of dismissal. A conditional order of dismissal is entered after the requesting party has successfully moved to compel discovery and after the responding party has failed to comply with a court order requiring discovery to be answered within a speci - Florida fied period of time. By that time, normal - ly, several months have elapsed since the Legal Assistance Statewide discovery was first propounded without response. The availability of a conditional order of dismissal only encourages parties to delay responding to discovery when initially received or, in some cases, com - Edmund C. Sciarretta, Esq. plying with an order compelling discov - Suffolk Law 1970 ery. This extra step is neither necessary nor required by the civil rules. In fact, Rule 37(a) of the Superior Court Rules of Civil Procedure allows for the original PERSONAL INJURY order compelling discovery to expressly provide for entry of final judgment dis - WORKERS’ COMPENSATION missing a claim or action if there is a lack • of compliance within thirty days .5 REAL ESTATE CLOSINGS TITLE INSURANCE Conditional orders of dismissal should PROBATE ADMINISTRATION be abandoned. If a party fails to respond to discovery in a timely manner, an order PROBATE LITIGATION should be entered requiring compliance in thirty days and court-ordered sanctions, MARITAL & FAMILY LAW • GUARDIANSHIP at a later hearing, upon non-compliance .6 • The order should not be an invitation to BANKRUPTCY CRIMINAL LAW another step in the process – a condition - al order of dismissal – and another bite at the apple. Although cases should be decided on Sciarretta & Mannino the merits, court orders must have teeth. Attorneys at Law If an order to compel will only lead to a conditional order of dismissal without 7301A West Palmetto Park Road • Suite 305C further consequences, then there is little Boca Raton, Florida 33433 or no incentive to comply with the origi - nal order. Instead, a party can merely wait • for the conditional order and comply at 1-800 -749-9928 561/338-9900 that time. Vigorous enforcement of the parties’ discovery obligations and initial discovery orders will have a salutary effect on reducing or eliminating tardiness .7
7. Expert Reports There’s only one ... Rule 26(b)(4)(A) of the Superior Court Rules of Civil Procedure allows a party to propound an interrogatory requiring RI Zoning Handbook, 2d the opposing party to identify its expert by Roland F. Chase, Esq. witness at trial, “to state the subject mat - • Completely revised • 340 pages • Comprehensive text-and-footnote ter on which the expert is expected to analysis of Rhode Island zoning law, plus federal zoning law (new!) • Kept testify, and to state the substance of the up to date with annual supplements • Table of Cases • Table of Statutes facts and opinions to which the expert is • Exhaustive index • $80.00 plus $5.60 tax • No shipping charge for pre- expected to testify and a summary of the paid orders. Further information and order form at www.rizoning.com. grounds for each opinion.” However, the Chase Publications, Box 3575, Newport, RI 02840 continued on page 34
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12 January/February 2012 Rhode Island Bar Journal Arbitration and the Unauthorized Practice of Law: A Legal Drama in Two Acts
Cast been appointed to arbitrate a super simple, ATTICUS: An older, experienced lawyer and no sweat, contract dispute – arbitrator. PORTIA: (interrupting) Is this a hypothetical or PORTIA: A youngish, driven, yet thoughtful real? lawyer. 1 ATTICUS: Real. I’m really appointed and I’m really troubled. May I continue? Act I PORTIA: Sure, just be mindful of the clock, jury Scene: It is 7:45 a.m. in the café where Atticus selection waits for no woman. and Portia, both dressed for a day in court, are ATTICUS: Its only (looking at the wall clock) – sharing a quick breakfast. oh damn – how can it take 30 minutes to get ATTICUS: Why do we come here every day? The untoasted toast? Anyway, long story short, Ernest G. Mayo, Esq. toast is never truly toasted, the coffee is weak here’s the problem: I’m asked to serve as a Warren Municipal Court and tepid at best, and the men’s room hasn’t sole arbitrator; I accept; Rhode Island corpo - Judge been cleaned since Oliver Wendell Holmes ration one, respondent, is represented by a Johnson & Wales University was last in town. Rhode Island lawyer – o.k. so far – Rhode PORTIA: Legal Studies Professor O.K…. great… let’s return to our daily Island corporation two, claimant, is not agenda of why this and why that, how do we represented by counsel, local or otherwise, know the earth isn’t flat, etc., etc. First, we but plans to have its vice president appear come here because it is convenient to both at the hearing… Superior and District, second, it’s a short PORTIA: (interrupting) So, what’s the problem … here’s my walk from the least expensive parking in the Atticus, arbitration is supposed to be infor - problem, the rules city, and third, you like the owner calling out mal – relaxed rules of procedure, evidence, your name when you come in. I might also yada, yada 2 govern only us add that I have no response to the men’s room ATTICUS: (interrupting) No, listen. The V.P. is lawyers, not condition, and I don’t know that Justice not appearing as a witness, but plans to Holmes ever stopped for breakfast in question witnesses, introduce documents, non-lawyers… Providence. basically be “ lawyer for a da y.” 3 ATTICUS: Oh sure, try to apply logic to simple PORTIA: Well, he can’t. Case closed. Notify the life pleasures like a decent piece of toasted case administrator, and all will be right with rye. And, just for your information, I was the world, and you will have fulfilled your referring the Oliver senior – I think there is duty to protect our guild – nice, nice. Eat evidence the doctor was fond of visiting his your eggs, time’s flying .4 fellow Brahmins on College Hill. ATTICUS: Ah. If only life was so simple. Here’s PORTIA: Of course the fact that there would not the problem: the administering ADR organi - have been any indoor plumbing in a dump zation’s rules clearly say that a party, in this like this circa 1860 would play no role in the case corporation two, is free to be represented creditability of your position. – I emphasize represented by anyone – any - ATTICUS: Fine … let’s move on … for now. body – any damn fool – no mention of, or I have a dilemma to discuss. apparently need for, those pesky lawyers .5 PORTIA: Please Atticus don’t start the day with PORTIA: Okay, fine, just check the rules of pro - another one of your “is God dead or just fessional conduct, find your answer, recuse hiding at the Coffee Exchange” brain twisters yourself or not, and move on. But look ... it’s exhausting. Atticus, it’s getting late, I have to get to ATTICUS: No, no, no, this is a real problem – Courtroom 20 pronto. help me out will you? ATTICUS: But the rules don’t solve the dilemma… PORTIA: Sure, I’ll try to chew quietly and not PORTIA: Can we talk tomorrow? I hate to be think about my client’s needs – please proceed. late, it makes clients feel uneasy. How about ATTICUS: Thanks – good choice. Alright, I’ve same place same time tomorrow?
Rhode Island Bar Journal January/February 2012 13 ATTICUS: Not good, I need to take some ATTICUS: Proceed? That’s it? Your or the AG , or at least the ADR adminis - action tomorrow. Time is short, can we thoughts in 25 words or less? trator? I’m thinking I should just resign meet for lunch later? Back here at PORTIA: Gee, here’s a thought, have you the appointment? 1:00ish? checked the General Laws, case law, PORTIA: Resigning just pushes the dilemma PORTIA: If I’m out of court. I have to go court rules, your magic eight ball, onto someone else. You, at least, have now. See ya. anything? a duty to the rest of us in that regard! ATTICUS: Yes. The eight ball indicates that And, besides, the problem should not [Portia exits the café and Atticus sits to all is not lost, but I may not have framed just linger. finish his coffee.] the issue correctly, so I can’t hold it ATTICUS: Report and resign then. Act II responsible. The statutes lead me to PORTIA: Let’s think for a minute: you are Scene: It is 1:16 p.m. at the café where believe that Mr. VP will be a felon 8 left with the rules of the ADR organi - Atticus and Portia, both looking a bit upon presenting his opening statement 9 zation 12 and the unauthorized practice wrinkled and tired, are waiting in line and that I have a duty to: a) prevent it; of law statute and cases ,13 the two of to place sandwich orders. or b) report it once it happens .10 which are quite incompatible, yet both PORTIA: Sounds rather over the top. are rather reasonable in their respective PORTIA: We only have about half an hour ATTICUS: Does it? Well the case law goals. so tell me what couldn’t wait ’til doesn’t help much, the court rules are ATTICUS: Yup, easy, affordable access to tomorrow. conveniently silent, and the rules of a fair hearing without the maddening ATTICUS: Our rules only address the out professional conduct apply to only us, formalities, versus protection of the of state lawyer representing a client in not to non-lawyers. Am I right? 11 uninformed from the unscrupulous. an arbitration in Rhode Island. A very PORTIA: Why not rely on the rules of the PORTIA: So, the ADR rules are trying not reasonable and accommodating rule I ADR organization? I assume that the to limit anyone’s access to arbitration might add .6 But, and here’s my prob - one governing your arbitration is, if even if they don’t want or can’t pay for lem, the rules govern only us lawyers, I’m not mistaken, as reputable, a lawyer, a good thought. On the other not non-lawyers a.k.a. Mr. VP of cor - respectable, sincere, and generally as hand, the rules governing us as practic - poration two .7 A-O-K as the others. So, let them ing lawyers don’t even mention a (to the café clerk) Oh, sorry, I’ll have worry about it. dilemma such as yours. The Supremes a Federal Hill with no onions… ATTICUS: Sure, but what about the unau - have clearly stated that corporations PORTIA: (to the café clerk) And I’ll have thorized practice of law issue? Don’t cannot act pro se and have an unautho - a Spicy Veggie Pocket. I have a duty to notify the Committee, rized practice committee to handle this (to Atticus) Proceed.
14 January/February 2012 Rhode Island Bar Journal stuff, and the statutes criminalize to craft their own rules of procedure and can agree instrument which requires legal knowledge and unauthorized practice. None of this, to particular features of litigation procedure if they capacity and is usually prepared by attorneys at desire.” Edward Brunet, Charles B. Craver, and law.” it would appear, and correct me if I’m Ellen E. Deason, ALTERNATIVE DISPUTE 4 R.I. Gen. Laws § 11-27-5. Practice restricted wrong, provides clear instructions for RESOLUTION : T HE ADVOCATES PERSPECTIVE (San to members of bar. No person, except a duly you, the arbitrator-lawyer who knows Francisco: Matthew Bender, 2006), 430. admitted member of the bar of this state , whose there is something amiss. “The primary objective of arbitration is to arrive authority as a member to practice law is in full ATTICUS: That’s about it. at a just and enforceable result, based on a private force and effect, shall practice law in this state . procedure that is fair, expeditious, economical, and R.I. Gen. Laws § 11-27-11. Practices permitted PORTIA: What-cha-gonna-do? less burdensome and adversarial than litigation. ” to persons not members of bar. None apply to this ATTICUS: I was hoping you would know! International Institute for Conflict Prevention matter. PORTIA: I know that I’m on trial in 16 & Resolution, http://www.cpradr.org/Portals/0/ See Unauthorized Practice of Law Committee minutes, and I know that you will do Resources/ADR%20Tools/Clauses%20&%20 v. State of Rhode Island Department of Workers what you have to do, and remember, Rules/2007%20CPR%20Rules%20for%20 Compensation, et al. , 543 A.2d 662 (R.I. 1988) Non-Administered%20Arbitration.pdf (accessed for discussion of some services and providers Atticus, a good night’s sleep without October 16, 2011) (All endnote emphasis added excepted from R.I. Gen. Laws § 11-27-5. Practice ethical demons – or should it be uneth - by author here et seq. ) restricted to members of bar; and infra note 9. ical demons? – circling your bed will 3 Pursuant to R.I. Gen. Laws § 11-27-2, the prac - 5 R.I. Sup. Ct. Art. V, Rule 2.4, Commentary 2. prolong your life. tice of law is defined, in relevant part, as “the “Lawyer-neutrals may also be subject to various doing of any act for another person usually done codes of ethics , such as the Code of Ethics for … ENDNOTES by attorneys at law in the course of their profes - the American Arbitration Association….” 1 With kindest regards to Harper Lee’s TO KILL A sion, and, without limiting the generality of the R.I. Sup. Ct. Ethics Adv. Panel, Opinion 2008- MOCKINGBIRD and William Shakespeare’s THE definitions in this section, includes the following: 01. “While the Court has exclusive jurisdiction MERCHANT OF VENICE . (1) The appearance or acting as the attorney, … over the practice of law, and has jurisdiction over 2 “Since the parties determine the procedural or representative of another person before any … court-annexed arbitrations and court-sponsored rules, they can opt for simplicity and informality. ” body authorized or constituted by law to deter - mediations, it does not regulate private mediation Stephen B. Goldberg, Frank E. A. Sandler, Nancy mine any question of law or fact or to exercise any and arbitration practices . H. Rogers, and Sarah R. Cole, DISPUTE judicial power,…; (2) The giving or tendering to See, e.g. , AAA Rule R-24 provides, in relevant RESOLUTION : N EGOTIATION , M EDIATION , AND another person for a consideration, direct or indi - part: “Any party may be represented by counsel OTHER PROCESSES (New York: Aspen Publishers, rect, of any advice or counsel pertaining to a law or other authorized representative .” AMERICAN 2007), 214. question or a court action or judicial proceeding ARBITRATION ASSOCIATION . “Commercial “Arbitration is an informal, flexible process . …; (3) The undertaking or acting as a representa - Arbitration Rules.” American Arbitration When compared with trial judges, arbitrators have tive or on behalf of another person to commence, Association Rules. June 1, 2009. http://adr.org/sp. relatively few procedural rules to curb their discre - settle, compromise, adjust, or dispose of any civil asp?id=22440#R24 (accessed October 15, 2011); tion in administering a hearing. Formal rules of or criminal case or cause of action ; (4) The prepa - AAA Code of Ethics for Arbitrators in evidence do not prevail.… The parties are also free ration or drafting for another person of … any Commercial Disputes Canon IV § C provides, in
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Rhode Island Bar Journal January/February 2012 15 relevant part: “ The arbitrator should not deny any party the opportunity to be represented by counsel or by any other person chosen by the party .” Is your firm’s insurance program AMERICAN ARBITRATION ASSOCIATION . “The Code of Ethics for Arbitrators in Commercial Disputes.” out of order? American Arbitration Association. March 1, 2004. http://adr.org/si.asp?id=4582 (accessed October 15, 2011). Verdix™ offers comprehensive legal professional liability coverage with CPR Rule 4.1 provides, in relevant part: “ The competitive pricing and financially secure carriers. parties may be represented or assisted by persons • Financial stability – Coverage through “A” (Excellent) rated carriers of their choice .” INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & R ESOLUTION . “Rules for • Highly experienced underwriting and risk control resources Non-Administered Arbitration.” November 1, 2007. http://www.cpradr.org/Resources/ALLCPRArticles/ • Expanded coverage tabid/265/ID/600/2007-CPR-Rules-for-Non- Administered-Arbitration.aspx (accessed October 16, 2011); and For more information or to get a no-obligation quote, NAF Rule 3 provides, in relevant part: “ Parties please contact Patricia Bethoney at 617 235 6144 or may act on their own behalf or may be represented email [email protected]. www.verdix.net. by an attorney or by a person who makes an appearance on behalf of a Party .” NATIONAL ARBITRATION FORUM . “Rules of Procedure.” August 1, 2008. http://www.adrforum.com/main. aspx?itemID=1561&hideBar=False&navID=357& news=3 (accessed November 7, 2011) 6 See generally, R.I. Sup. Ct. Art. V, Rule 5.5, Unauthorized practice of law; Multijurisdictional practice of law. 7 Id. at §§ (a), (b), (c), and (d) each refers to “a lawyer” only. R.I. Sup. Ct. Art. V, Rule 8.3, Reporting Professional Misconduct. (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. R.I. Sup. Ct. Art. V, Rule 8.4, Misconduct. It is professional misconduct for a lawyer to: (b) com - Call us today to learn how our qualified business valuators have helped clients with: mit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a • Mergers/acquisitions • Divorce asset allocation lawyer in other respects; (c) engage in conduct • Business purchase/sale • Adequacy of insurance involving dishonesty, fraud, deceit or misrepresen - tation; (d) engage in conduct that is prejudicial to • Succession planning or • Litigation support the administration of justice, … buy/sell agreements • Financing 8 Actually it’s a misdemeanor for the 1st offense, • Estate and gift taxes • Mediation and arbitration see R.I. Gen. Laws § 11-1-2 for definition of mis - demeanor and § 11-27-14, infra at note 9 for rele - vant penalties. 9 See R.I. Gen. Laws § 11-27-5, supra note 4. “This Court has said that it is a ‘well estab - Want a qualifed, expert lished principle that a corporation may be repre - sented only by licensed counsel.’” Mobile Homeowners Rights, Inc. v. Mobile Village, Inc., business valuation? et al. , 736 A.2d 98, 98 (R.I. 1999) R.I. Gen. Laws § 11-27-14. Penalties for viola - Count on us. tions. Any person violating any of the provisions of this chapter shall, upon a first conviction, be imprisoned for a term not exceeding one year, or fined not exceeding five hundred dollars ($500), or both. Any firm, corporation, or other entity violating any of the provisions of this chapter shall, upon a first conviction, be fined not exceed - ing five hundred dollars ($500). R.I. Gen. Laws § 11-27-16. Practices permitted to corporations and associations. None apply to this matter. William J. Piccerelli, CPA, CVA N John M. Mathias, CPA, CVA N Kevin Papa, CPA, CVA N.B. Could the following, permitting non-lawyer 144 Westminster Street, Providence, RI 02903 N 401-831-0200 N pgco.com representation before informal workers’ compensa - tion hearings , be the ice on the slippery-slope to permitting non-lawyers to appear in a representa -
16 January/February 2012 Rhode Island Bar Journal Captain Michael P. Jolin Presents Bar With US Flag and Citation
Bar member and Rhode Island National Guard Captain Michael P. Jolin, currently serving in Afghanistan, presented the Rhode Island Bar Association with a United States flag flown over a military base in Afghanistan and a citation honoring the Bar for its support of those who have served and are serving in the nation’s military services.
Captain Jolin’s citation reads as follows: So that all shall know, this flag was flown in the face of the enemy at Bagram Airfield, Afghanistan. Illuminated in the dark, by the light of justice, it bears witness to the successful detention and interrogation of terrorists threatening the freedom of the United States of America and the world. In remembrance of all who lost their lives on the 11th day of September, 2001, it was flown with great honor and pride by our nation’s military forces within the Detention Facility In Parwan (DFIP).
Flown on the 19th day of May 2011 Bar President William J. Delaney and Past Bar President Victoria M. Almeida, In Honor of who initiated the Bar’s United State Armed Forces Legal Services program, Rhode Island Bar Association proudly display Captain Jolin’s gift to the Bar, now on display at the Rhode “Let every nation know, whether it wishes us well or ill, Island Law Center. that we will pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order Bar member response to the call for the United States Armed to assure the survival and the success of liberty.” Forces Legal Services (USAFLS) program volunteers is outstand - PRESIDENT JOHN F. KENNEDY ing. However, the Bar still needs more volunteers, as demand is greater than our current volunteers can handle. The good news is, Certified by: for those who volunteer to take a program case, free malpractice CPT Michael P. Jolin insurance is available to cover most pro bono cases accepted Trial Counsel through the Bar’s pro bono programs. To become a USAFLS Task Force Protector volunteer, please contact Public Services Director Susan Fontaine Bagram Airfield, Afghanistan by email: [email protected] or telephone: 401-421-5740.
tive capacity at arbitrations? “It has long been the individual in engaging in acts constituting the jurisdiction to restrain and enjoin any of the acts law of this state that the definition of the practice unauthorized practice of law as set out in chapter prohibited in this chapter upon a complaint of law and the determination concerning who may 27 of title 11 would by so doing be in violation brought by the attorney general, by any member practice law is exclusively within the province of of DR 3-101(A) of the Code of Professional of the bar of this state whose authority as a mem - this court…. We must remember that the practice Responsibility, the progenitor of what is now ber to practice law is in full force and effect or of law at a given time cannot be easily defined. Article V Rule 5.5(b) of our Rules of Professional by the unauthorized practice of law committee. Nor should it be subject to such rigid and tradi - Conduct. Berberian, 434 A.2d at 256.” In Re Rule 11 “It is well established that in situations in tional definition as to ignore the public interest .” Amendments to Rules 5.4(A) and 7.2(C) of The which a statute and a rule approved by the Rhode Unauthorized Practice of Law Committee v. Rules Of Professional Conduct . 815 A.2d 47, 50 Island Supreme Court are in conflict, the court Department of Workers’ Compensation, et al. , (R.I. 2002). rule prevails .” Heal v. Heal , 762 A.2d 463, 467 543 A.2d 662,664-665 (R.I. 1988) R.I. Gen Laws § 11-27-19. Unauthorized prac - (R.I. 2000) 10 “We previously have noted that only those cor - tice of law committee – Powers and duties – Duties Supra note 7. porations organized pursuant to the Professional of attorney general. (a) There is established an 12 Supra note 5. Service Corporations Act (G.L.1956 § 7-5.1-1) may unauthorized practice of law committee to be 13 Supra notes 4, 9 and 10. O practice law in this state, Carter v. Berberian , 434 appointed by the supreme court consisting of any A.2d 255 (R.I.1981) (per curiam), and that any number that shall be determined by the supreme such corporation may not permit or allow any court. (b) It shall be the duty of the attorney gen - unauthorized persons to practice law in violation eral and the unauthorized practice of law commit - of chapter 27 of title 11. In re Rhode Island Bar tee to enforce the provisions of this chapter and to Association , 106 R.I. 752, 263 A.2d 692 (1970). investigate and prosecute all violations. It shall be Indeed, we have cautioned that any attorney who the duty of the attorney general to prosecute all aids or assists any corporation, association, or criminal violations. The superior court shall have
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18 January/February 2012 Rhode Island Bar Journal Rhode Island Municipal Insolvency Lite
Like most of you, I do not currently represent Q. If a municipality files for bankruptcy, can a municipality; but I do follow current events. the bankruptcy Receiver (the term Trustee is So, as a lawyer with more than a passing famil - not used in Chapter 9) sell off municipal assets iarity with the bankruptcy code, I have been (a park, firehouse, equipment, municipal build - watching the Central Falls, Rhode Island ings, etc.) to pay for the debts of the public receivership from afar, with more than a few entity? nagging questions. Overcoming inertia, I began A. No. The type of bankruptcy protection to examine some of those questions and have provided to municipalities is found in Chapter attempted to formulate what I believe to be the 98 (not in Chapters 7, 9 11 10 or 13 11 as is common answers thereto. for individuals or businesses). This type of bank - ruptcy provides only for a re-organization of Q. Guy R. Bissonnette, Esq. Can a state declare bankruptcy under debt analogous to Chapter 11 (for businesses) Practices in Portsmouth, RI federal law? and therefore does not permit the forced sale of A. No. The 10th Amendment prohibits a public assets to pay off creditors. It is not simi - federal entity from running the financial affairs lar to a Chapter 7 filing which is, essentially, of a state .1 Conversely, a state cannot force a the liquidation of the assets of an individual/ creditor to compromise its claim without violat - business for the benefit of creditors. ing the constitutional prohibition against the state impairment of contracts .2 Q. So what is going on with Central Falls? A. Prior to May of 2010, a municipality with Without prior Q. Can a municipality file for U.S. bankruptcy budget problems in Rhode Island was required notification to the protection? to work with the state auditor general to devel - A. Yes, if there is a state law which permits op a deficit-reduction plan .12 Without prior state, on May 19, it. The country is divided almost equally, with notification to the state, on May 19, 2010 the 2010 the city of twenty-five (25) states not permitting the filing .3 city of Central Falls bypassed this process and Rhode Island (until June 11, 2010) did not sought receivership protection in the Providence Central Falls authorize the filing of a municipal bankruptcy County Superior Court, ostensibly, in an effort bypassed this petition, but now does. Once again, the reason to seek relief from its union and pension obliga - that state permission is needed is the 10th tions .13 This is believed to be the first time any process and Amendment to the U.S. Constitution .4 A state municipality sought protection in a judicial sought receivership cannot be compelled constitutionally to submit receivership under Rhode Island law. The City’s to federal fiscal regulation; but may do so vol - thinking was that it needed the power of a protection in the untarily for its sub-entities, e.g. towns, cities, judicial receivership to address/change the then Providence County counties, other types of bonding/taxing authori - existing union/pension contracts .14 On, May 19, ties, etc .5 In 2010, when the Rhode Island legis - 2010, the court appointed Attorney Jonathan Superior Court. lature created the new, so called “municipal N. Savage as the temporary receiver for Central receivership” statutes ,6 it did provide for the Falls .15 Almost immediately (June 11, 2010), the state-appointed receiver to file for protection Governor and Rhode Island General Assembly under Chapter 9 of the bankruptcy code on acted to create a new receivership law granting behalf of the municipality under his/her the state the power to intervene in the affairs control .7 This is the only time a Rhode Island of budget-strapped municipalities and made city or town can be placed into bankruptcy. In the law retroactive in its application .16 It is clear other words, for a city or town in Rhode Island that the state legislature passed this modifica - to be placed into bankruptcy (Chapter 9), it tion to the state receivership statute specifically must already be in state receivership. In effect, with Central Falls (and other struggling munici - state receivership is a necessary predicate for a palities) in mind ,17 and that these efforts were municipal bankruptcy filing in Rhode Island. motivated because of pressure being put on the state by nervous municipal bond rating
Rhode Island Bar Journal January/February 2012 19 agencies .18 The new law is entitled, § 45-9 Budget Commissions .19 This receivership statute prohibits future municipal judicial receiverships 20 ; but allows municipalities that are under “financial distress” to seek state receivership protection .21 It creates, in essence, a three-step process. First, upon a petition by the city/town’s finance director, and with the agreement of the state auditor general, the financially strapped municipality may seek the appointment of a “fiscal overseer.” Secondly, if need be, a “budget commis - sion” can be added to help run a munici - palities financial affairs. Lastly, if the budget commission concludes that its powers are insufficient to “restore finan - cial stability”, the state director of rev - enue shall appoint a state receiver. 22 In a “fiscal emergency” the state director of revenue can go straight to the appoint - ment of a receiver and bypass the previ - ously-described intervening steps .23 This is the situation Central Falls has found itself in since July 16, 2010, when the Workers’ Compensation state auditor general appointed retired Superior Court Judge Mark S. Pfeiffer the state receiver for Central Falls under Injured at Work? a six month contract .24 Subsequently, and after a brief extension of Judge Pfeiffer’s services, newly-elected Governor Lincoln Accepting referrals for workers’ Chafee appointed former Supreme Court Associate Justice Robert G. Flanders, Jr. compensation matters. as the state receiver, and he assumed those responsibilities as of February 15, 2011 .25
Q. What powers does the state receiver Call Stephen J. Dennis Today! have, and can he/she overrule the mayor, city council or other elected officials? 1-888-634 -1543 or 1-40 1-453 -1355 A. R.I. Gen. Laws § 45-9-7 (b) out - lines the extensive powers of the receiver. Which include: “… any function or power of any municipal officer or employee, board, authority or commission, whether elected or otherwise…impacting the fiscal stabili - ty of the city or town including, without limitation, school and zoning matters; 26 …the receiver shall have the right to exer - cise the powers of {any} elected officials …impacting the fiscal stability of the city or town…the powers of the receiver shall be superior to and supersede the powers of elected officials….{who} shall continue 109 Larchmont Road to be elected… and serve in an advisory Warwick, Rhode Island 02886 capacity to the receiver.” 27 Tel: 4 01- 439-9023 In effect, this makes elected officials observers under the receivership. Since almost everything a city/town does has a fiscal effect, the receiver has the final say
20 January/February 2012 Rhode Island Bar Journal on virtually all local government actions within the municipality. New Bar Members and Committee Q. Can the state receiver hire and fire employees? Representatives Meet and Mingle at A. Yes, but with important limitations. Speed Networking Event Remember, a state receiver cannot abro - gate a contractual obligation. A receiver could therefore fire/layoff any “employee at will.” 28 But, today, most municipal workers in Rhode Island are unionized. Rhode Island Bar Association Committees, with their friendly and experienced An employee covered by a collective bar - members, and the Bar's excellent public service programs, offer a wealth of gaining agreement may or may not be professional and personal benefits to Bar members. This Fall, over 70 new fired or laid off depending on the terms lawyers and Bar committee chairs and representatives took part in a casual, fun, of that contract. But the receiver could, informative and interactive speed networking event at the Bar’s headquarters in by exercising management rights, down - Providence. Co-sponsored by the Rhode Island Bar Association’s New Lawyers size the number of employees and let the Committee and the Bar’s Executive Committee, this event is one many Bar union contract(s) sort out who stays and initiatives aimed at helping new members advance in the profession. To learn who goes, presumably on the basis of more about upcoming new member programs and initiatives, please contact seniority. New Lawyers Committee Co-Chairs Rebecca Dupras: redupras @gmail.com and Cristen Ciresi: cciresi @smsllaw.com. Bar members are also invited to join Q. Can the state receiver abrogate/re- the New Lawyers Committee to help plan and develop new lawyer-focused write a collective bargaining agreement? events and programs. To join the New Lawyers Committee, please contact the A. No, R.I. Gen. Laws § 45-9-9 of the Bar’s Communications Coordinator Kathleen Bridge via email: new receivership law 29 clearly states that kbridge @ribar.com or telephone: 401-421-5740. “This section shall not be construed to authorize the … receiver under this chap - ter to reject or alter any existing collective bargaining agreement, unless by agree - ment…” But a receiver can, and in the case of Central Fall did, insist on changes in staffing, wages, benefits, etc. with the various municipal unions based on eco - nomic necessity. The receiver does have the right to decide and control municipal fiscal matters. This would include the size of government and the services it provides. It would make sense that a union would want to be part of that decision making process to negotiate the preservation of as many jobs as possible, rather than hav - ing its remaining membership determined Superior Court Bench Bar Committee Co-Chairs Karen A. Pelczarski and Melissa E. Darigan simply by seniority. R.I. Gen. Laws § 45- were among the 20 Bar committee representatives who provided new lawyers with information 9-9 further provides that no new collec - and insights. tive bargaining agreement (including any new contract with teachers), or amend - ment to an existing agreement, can exist without the participation and approval of the state receiver. 30 However, the receiver is not unarmed Environmental when negotiating with the unions. Clearly, and Energy Law R.I. Gen. Laws § 45-9-7 (3) provides Committee that the receiver can file for bankruptcy Co-Chair Jennifer under Chapter 9. This gives the receiver Reid Cervenka a powerful weapon. If the unions refuse discussed her to negotiate in good faith, the receiver committee’s focus always has the option of placing the city on topic-related into federal bankruptcy where contracts guest speakers can be abrogated and re-written. And, at their meetings. this is exactly what Receiver Flanders did
Rhode Island Bar Journal January/February 2012 21 on August 1, 2011 .31
Q. Can a creditor force the sale of municipal assets such as equipment, YYoou wwaant it. unused buildings, a park, etc.? A. No. There is nothing in the new state law (R.I. Gen. Laws § 45-9-1 et seq) WWee have it. which provides for the petition of a cred - itor to seek or force the sale of municipal Guardian Disability Income Insurance assets to pay off a debt. 10% discount to RI Bar Members Q. Could the receiver sell municipal assets? As a legal professionasional, you may have begun to thinknk you'd never be able A. Yes and no. The sale of unused or to find the kindd off high-quality disability income coc verage you need. excess personal property/equipment Coverage that includes: owned by the municipality is probably fair game as part of the normal budgeting efit paayments when you can't work at youour own occupation - process. However, there is no provision even if you can work at another one in the new state law (R.I. Gen. Laws § -cancellablellable and guarantteed renewwabblle tto age 65 45-9-1 et seq) which addresses (and there - verr off premiums during disability benefit period fore would authorize) the receiver to If this sounnds like the kind of disability protection you've been direct the sale of real property belonging ORRNLQJ IRU DQG \RX¶G OLNH WR GLVFXVV \RXU RSWLRQV RU MXVW OHDUQ to a municipality. more about it, please call: Q. Who pays the state appointed Robbert J. Gallagher & Associates, Inc. receiver? A Reprreseesentative of Guardiann A. A quick reading of the state receiv- Robert J. Gallagher, Jr., CLU, CChFC ership statute leaves this is a bit unclear. Ageg nt However, the current receiver is appoint - P.O. Box 154467 ed by the state, has a contract with the Riverside, RI 02915 state, and is answerable to the state direc - 401-431-0837 tor of revenue. So, it is fair to say that the rrjgiggs@[email protected] state appointed receivers are to be paid by the state. Attorney Jonathan Savage, the judicially appointed receiver, submit - ted his bill to the state 32 and so does the current receiver, Robert Flanders .33 Which means, ironically, that every pen - sion payment, wage, benefit and contract connected to the municipality of Central Disability income products underwritten and issued by Berkshire Life Insurance Company of America, Pittsfield, MA a wholly owned stock subsidiary of Falls and its employees is now under the The Guardian Life insurance Company of America, (Guardian) New York, NY. control and scrutiny of the bankruptcy Products not available in all states. Product provisions and features may very from state to state court, with the exception of the compen - sation for the receiver.
Q. How much are the receivers being paid? A. The judicially appointed receiver, Jonathan Savage charged $290 per hour Off ice Spac e Avai lable for a total of $170,000, which he later reduced to $140,000 .34 Savage also pre - Within Existing Law Office sented an additional series of charges amounting to $136,000 covering the AMENITIES CONTACT work of specialists hired by the receiver. 35 Recepti on ist • Con feren ce Room s Jim G old man Receiver Mark Pfeiffer was hired for six months at $200.00 per hour with a maxi - Copi er • Park ing 51 Jeffer son Bou levar d mum fee of $164,000 ,36 but was extended Se cre tar ial S tati on s • F ili ng C abi ne ts War wic k, Rho de Isl an d for an additional one month at the same Grea t Lo cati on 401 -781 -4200, ex t. 11 hourly rate .37 The terms of Robert Flanders hire are, as of this writing,
22 January/February 2012 Rhode Island Bar Journal unknown to this scrivener and appear to remain unpublished. Presumably, the terms are similar to those reached with Mark Pfeiffer. Providence Valuation , LLC business appraisal and consulting Q. What happens to Central Falls now that it is in bankruptcy? A. Receiver Flanders placed the city into bankruptcy to address (reduce) existing union contracts and pension business valuations obligations. In essence, to balance the municipal budget by reducing benefits lost profits studies to current and past employees. To change these contractual obligations/benefits, he fractional interest needed the agreement of the parties or the approval of a bankruptcy judge. Not discount analyses getting the former, he is now seeking the latter. Subject to the approval of the asset recovery bankruptcy judge, all pension contracts and benefits packages can be rewritten intangible asset and, presumably, reduced. Currently, rather than have that done unilaterally, valuation the unions, pensioners and municipal John “Jay” Candon receiver are in negotiations to try to do lost earnings studies CPA, ABV, ASA, CFE, CFF this by agreement. But, let there be no mistake, the bankruptcy judge can 1750 Ministerial Rd business acquisitions approve, and thereby impose, a reduction South Kingstown, RI 02879 of benefits and a rewriting of union con - and sales 401.714.4099 tracts and existing pensions even if no arrangement is reached. Another available www.providencevaluation.com option is to cancel existing contracts to privatize some municipal services, such as Providence Valuation is dedicated – 20 years business valuation experience trash pickup and recycling .38 The receiver has also discussed the possible merger to providing the highest quality of – Recognized as an expert by the U.S. Tax of municipalities, or, in the alternative, objective and confidential services Court, Federal Courts and State Courts municipal services, expressly fire and to our clients, small and medium – Certified Public Accountant police, with nearby Pawtucket. 39 Of course, it remains to be seen what the sized enterprises and high net – Accredited in Business Valuation upside of such an arrangement might worth individuals in the greater – Accredited Senior Appraiser be for Pawtucket or any other nearby Rhode Island area, in the most municipality. – Former Chief Financial Officer of a economical way. commercial bank Q. How does Central Falls get out from under this state receivership? A. Presumably the bankruptcy will end with a balanced City budget reflecting rewritten union contracts and pension benefits. This still leaves the state receiver - ship. The receiver, through periodic LLC reports to the state director of revenue PELLCORP INVESTIGATIVE GROUP, regarding the fiscal well being of the municipality will, presumably, at some Private Investigations point, indicate that the city has become financially stable. At that point, the receivership will end. After which, how - Edward F. Pelletier III, CEO ever, there is, in essence, the creation of what can only be described as a period (401) 965-9745 of probation .40 The state receivership www.pellcorpinvestigativegroup.com continued on page 38
Rhode Island Bar Journal January/February 2012 23 Title Book # Price Qty. Total CLE Publications BANKRUPTCY Avoiding Foreclosur e/ Loan Modifications 10-14 $40 Order Form BUSINESS Practical Skills - Basic Commercial & Real Estate 12-02 $70 Loan Documentation (available after 2/3) NAME ______Practical Skills - Organizing a Rhode Island 11-18 $45 Business FIRM or AGENCY ______Commercial Law 2011: Update on Recent 11-13 $40 Developments MAILING ADDRESS ______Cannot be a P.O. Box ENVIRONMENTAL LAW
CITY & STATE ______Responding to DEM & CRMC Enforcement 09-17 $30 Actions
ZIP ______PHONE ______FAMILY LAW Practical Skills - Domestic Relations Practice 11-09 $50 EMAIL ADDRESS ______QDRO Practice in RI from A-Z 09-13 $40 LAW PRACTICE MANAGEMENT BAR ID # ______Establishing a Law Firm in RI 09-19 $25
Check enclosed (made payable to RIB A/CLE ) Planning Ahead 09 -14 $39.95 Please do not staple checks. PROBATE/ELDER LAW Medicaid Forms and Regulations 11-15 $35 Please charge to my credit card checked below Practical Skills - Planning for and 11-06 $40 MasterCard VISA AMEX Discover Administering an Estate Medicare Claim Settlements 09-12 $30 Exp. Date ______e
Administrative Local Rules PR-10 $65 r e H
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Card No. ______a t The Ins & Outs of Landlord Tenant Law 11-11 $15 e D
Signature ______Practical Skills - Residential Closings 11-07 $65 RI Title Standards Handbook (through 10/11) TS-11 $35 Please make check payable to: RECENT DEVELOPMENTS Rhode Island Bar Association/CLE Recent Developments in the Law 2011 RD-11 $55 and mail with order form to: CLE Publications, Rhode Island Bar TRIAL PRACTICE Association, 115 Cedar Street, Providence, RI 02903. Practical Skills - Civil Practice in Superior Court 12-03 $40 Please do not staple checks. (available after 2/16) Practical Skills - Civil Practice in District Court 12-0 1 $40 SHIPPIN G/ HANDLING INFORMATION (available after 1/13) Please allow 2-3 weeks for deliver y. Practical Skills - Criminal Law Practice in RI 11-16 $50 All books are sent by FedEx Ground. Soft Tissue Injuries Explained 11-12 $35 DWI Update 11-05 $35 Publication Total Shipping and Handling Cost Social Host Law 09-11 $25 Up to $45.00 $6 HIPAA Explained 04-08 $35 $45.0 1 - $75.00 $9 Model Civil Jury Instructions 03-02 $49.95 $75.0 1 - $100.00 $12 WORKERS’ COMPENSATION $100.01+ $15 Practical Skills - Workers’ Compensation 11-10 $40 Practice in Rhode Island
Books $ ______OFFICE USE ONLY Shipping & Handling $ ______
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7% R.I. Sales Tax $ ______Date Rec’ d ______Date Sent ______Total $ ______24 January/February 2012 Rhode Island Bar Journal Continuing Legal Education Update
To register for CLE seminars, contact the Rhode Island Bar Association’s CLE office by telephone: 40 1- 42 1-5 740, or register online at the Bar’s website: www.ribar.com by clicking on CONTINUING LEGAL EDUCATION in the left side menu. All dates and times are subject to change.
January 12 Food for Thought February 9 Food for Thought Thursday Contract Negotiations – Thursday New Developments in Employer Liabilities Avoiding Ethical Missteps RI Law Center, Providence RI Law Center, Providence 12:45 p.m. – 1:45 p.m., 1.0 credit 12:45 p.m. – 1:45 p.m., 1.0 ethics credit February 16 Practical Skills January 13 Practical Skills Thursday Civil Law Practice in Rhode Island Friday Civil Law Practice in Rhode Island Superior Court District Court RI Law Center, Providence RI Law Center, Providence 9:00 a.m. – 3:00 p.m. 9:00 a.m. – 3:00 p.m. 4.0 credits + 1.0 ethics 4.0 credits + 1.0 ethics February 28 Food for Thought January 18 Food for Thought Tuesday New Developments in Employer Liabilities Wednesday Bankruptcy Issues in a Domestic Law Case Casey’s Restaurant, Wakefield Holiday Inn Express, Middletown 12:45 p.m. – 1:45 p.m., 1.0 credit 12:45 p.m. – 1:45 p.m., 1.0 credit February 29 Medicaid 202 – Beyond the Basics January 19 Food for Thought Wednesday RI Law Center, Providence Thursday Bankruptcy Issues in a Domestic Law Case 1:00 p.m. – 4:00 p.m., 3.0 credits RI Law Center, Providence 12:45 p.m. – 1:45 p.m., 1.0 credit March 7 Session Two – Fundamentals of an Wednesday Uncontested Divorce Series January 24 Food for Thought Document Preparation and Filing Tuesday Contract Negotiations – A Volunteer Lawyer Program Avoiding Ethical Missteps RI Law Center, Providence Casey’s Restaurant, Wakefield 4:00 p.m. – 5:30 p.m., 1.0 credits + .5 ethics 12:45 p.m. – 1:45 p.m., 1.0 ethics credit March 14 DUI Update 2012 February 1 Session One – Fundamentals of an Wednesday RI Law Center, Providence Wednesday Uncontested Divorce Series 1:00 p.m. – 4:00 p.m., 2.5 credits + .5 ethics How to Conduct the Client Interview A Volunteer Lawyer Program RI Law Center, Providence 4:00 p.m. – 5:30 p.m., 1.5 credits
February 3 Practical Skills Friday Basic Commercial and Real Estate SAVE THE DATE Loan Documentation RI Law Center, Providence 2012 ANNUAL MEETING 9:00 a.m. – 3:00 p.m. 4.0 credits + 1.0 ethics June 14 & 15, 2012 Providence
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Rhode Island Bar Journal January/February 2012 25 EXPERIENCED, THOROUGHLY PREPARED & SUCCESSFUL TRIAL ATTORNEY
Since 1984, I have been representing people who have been physically and emotionally harmed due to the criminal acts or negligence of others. I have obtained numerous million dollar plus trial verdicts and many more settlements for victims of birth injury, cerebral palsy, medical malpractice, trucking and construction accidents. Between the criminal and civil cases I have been lead counsel in over 100 jury trial verdicts. My 12 years of working in 3 di;erent prosecutors’ o THE LAW OFFICE OF DAVID MOROWITZ, LTD. www.morowitzlaw.com 155 SOUTH MAIN ST., SUITE 304, PROVIDENCE, RI 02903 (401) 274-5556 (401) 273-8543 FAX I am never too busy to promptly return all phone calls from clients and attorneys. 26 January/February 2012 Rhode Island Bar Journal Lunch with Legends: Trailblazers, Trendsetters and Treasures of the Rhode Island Bar Matthew R. Plain, Esq. Elizabeth R. Merritt, Esq. Taylor Duane Barton & Gilman, LLP, Providence John F. McBurney, Jr. has worn many hats In the 60 years you’ve been practicing law, what do you think throughout his career but, no matter what his role, his life’s is the biggest change you’ve seen in the legal profession or in theme is serving others. Born in Pawtucket, Rhode Island in the practice of law here in Rhode Island? Well, contributory 1925, Mr. McBurney graduated negligence is out. And, advertising. from high school in 1942, and When you say advertising, how has that been a change? Well, attended Providence College we weren’t allowed to advertise until about 1968, I guess. And, for a brief period before World I’m death on advertising. I think it’s hurt the profession. War II. Mr. McBurney served in both the Army Air Corps What has been the biggest challenge or hurdle or obstacle of and the Infantry, fighting in the course of your legal career? Well, for 16 years, contributory France, Germany, Belgium, negligence was tough. After that, things got easier. Czechoslovakia, Italy, and What is some of the best advice that you ever received as a Austria, and honored with the lawyer? [Former Speaker of the House Harry F.] Curvin, who Bronze Star and the French wasn’t a lawyer, would advise me: rehearse your case; marry Legion of Honor for his courage your client completely; and write it out, type it out, and every - and valor. John F. McBurney, Jr., Esq. thing. He had a fourth grade education at St. Mary’s, but he Following his distinguished was pretty, pretty sharp. military service, he returned to Rhode Island, graduating from Providence College and earning a teaching degree from Rhode What advice would you give to new lawyers? You’ve got to Island College of Education. Mr. McBurney’s service continued know your case, and you’ve got to know it as good as the other as a teacher at Pawtucket West High School (now Shea) while side, otherwise, you’re going to go down. running the Collins Electrical Shop. He continued teaching What challenges to do you foresee for newer members of the night school at West while attending law school at Boston Bar? Advertising. I would advise them not to do that. And College, gaining admission to the Bar in 1951. then lately, it’s become personal, vindictive, one lawyer against He initially worked as a solo practitioner in Pawtucket, another…we didn’t have that in the old days. Everybody got handling both criminal and civil cases and briefly served as along, even though you were on opposite sides. Pawtucket’s Assistant City Solicitor. In 1958, he was elected and served as a Rhode Island State Senator, a post he held until If you had to hire a lawyer to represent you, who would you 1974 while maintaining his thriving private practice. We spoke hire? Well the sharpest one in my days would be Judge Selya. with Mr. McBurney about his diverse and notable career, and He knew the law of the case. And, of course, if you’re on the the following excerpts are from our interview. other side of Judge Selya, you better have a dictionary with you. Your long service as a State Senator while sustaining your After speaking with John McBurney, soldier, electrician, teacher, private practice is remarkable. How did you manage to do lawyer and elected official, we quickly learned that he is the con - both of those things and do them so well for so long? Extra summate serviceman. Mr. McBurney tends to divert discussion time – I was no genius. I had to spend a lot of time on cases of his accomplishments, as he’s every bit as modest as he is too, you know, to get ready for court. uniquely skilled and capable. Notwithstanding his seeming Did you find your two roles, as a lawyer and a legislator, reluctance to accept credit, the authors believe his service to intersected positively? Oh, I recommend lawyer[s] try for pub - our Bar, our State, and our Country warrants gratitude. To lic office…it helps your practice, and you can help the people. that end, thank you, Mr. McBurney, for all you have done. Rhode Island Bar Journal January/February 2012 27 Bar’s Volunteer Lawyer Program and RWU School of Law Free Family Mediation Clinic This fall, Roger Williams School of Law (RWUSL) Mediation referred to VLP attorneys to finalize the process. This col - Clinic students, under the supervision of Professor Bruce laborative effort began providing alternative legal assistance Kogan, joined with attorneys from the Bar’s Volunteer to low income litigants with uncontested or nominal matters Lawyer Program offering a Family Law Mediation Day in 2010. Given this collaborative effort’s success, the clinics Clinic at the Bar Association in Providence. Ten couples are now offered twice a year. received pro bono mediation services and have since been Front, l to r: Caitlin Lantagne*, RWUSL Clinic Administrator Margie Caranci, Julie Tran *, Christen Laurence *, Amanda Sorenson *, Mariana Ormonde *, Jolee Messier *, RWUSL Professor Olivia Milonas, RWUSL Professor and Mediation Clinic Director Bruce Kogan Back, l to r: Philip Ornstill *, RI Family Court Mediation Unit Director Cheryl Martone, Bar VLP Neville Bedford, Esq., Chris Marovelli *, Bar VLP Dadriana Lepore, Esq., Bar VLP Christine Engustian, Esq., Bar Public Services Director Susan Fontaine, and Jessica Doyle* (*RWUSL 3rd year law students) 28 January/February 2012 Rhode Island Bar Journal Oh, Canada! American Bar Association Delegate Report: ABA Annual Meeting Toronto, to me, with all apologies cases, judicial disqualification rules, and the membership of Guam to New Yorkers, is a clean and polite and other United States Territories in the ABA . version of New York City. I love New The ABA Medal, its highest honor, was given jointly to David York in small doses, but having lived Boies (of California’s Proposition 8 fame) and Theodore Olson in the Midwest during law school and (former Solicitor General) for their ability to “disagree without spending substantial time overseas, being disagreeable” in such high profile cases such as Bush v. Gore . I am able to compare the regions in As always, I am truly proud, honored and humbled to be your terms of lifestyle. Toronto’s economy ABA representative. Anyone with any questions or concerns is booming, as I could not move with - about the ABA may contact me by telephone at 724-2400 or by out bumping into a crane erecting email at rdoesq @yahoo.com. O a new building or infrastructure Robert D. Oster, Esq. improvement. Although it has no ABA Delegate and Past ocean, it has the next best thing Rhode Island Bar in Lake Ontario. The neighborhoods are Dear Colleagues, Association President otivates me to devote a inviting, the architec - r members recently asked what m One of our Ba this nergy to the ABA, and I am taking ture diverse, and the city’s cultural life is vibrant. stantial portion of my time and e sub Bar’s ABA Delegate. y reasons. In 2003, I became the The American Bar Association’s (ABA) Delegates opportunity to explain m n Justin Holden’s words to me whe were addressed by the Chief Justice of Canada, remember our previous delegate I will always sessed in our r the legal services for the dispos Rosalie Silberman Abella, who is also a Holocaust I took the job: “Be an advocate fo lly understand what he meant. survivor. Her personal and pro fessional journey society.” At the time, I did not rea l things while following Justin’s moved the chamber to tears of sadness and joy. eight years, I have learned severa In the last of the Legal to continually advocate on behalf I sat up close in a panel discussion on civics advice. We need a national voice ck by those who would deny the education featuring former Supreme Court Justice poration as it has been under atta Services Cor ge, it is the there is one stigma we must chan Sandra Day O’Connor and cur rent Justice Stephen poor adequate representation. If ith a highly-paid lawyer. Bryer. Justice O’Connor, who I greatly admire, is idea that justice can be bought w ignificant positions affecting all busy in retirement, devoting herself to promoting ned the ABA, it has taken other s Since I joi ofession, ankruptcy reform, ethics in the pr national civics education though her iCivics pro - Americans on the death penalty, b compensation, juvenile justice gram, which our own Chief Justice Paul A. Suttell line issues, judicial selection and diversity pipe In addition, d substantive law to name a few. has also embraced. standards, criminal procedure, an e. The substantive issues addressed by the House candidates for federal judicial offic the ABA still rates of s the world’s largest organization of Delegates included Ethics 20/20, an update on ake no mistake, when the ABA, a M the ABA’s power when ue, the world listens. I have seen our Model Rules on Professional Responsibility lawyers, speaks to an iss , atives on ABA Day in Washington in light of the new normal of confidentiality in the d States Senators and Represent visiting Unite s forth Model urts listen to the ABA when it set age of cyber-security and cloud-computing. The D.C., and our law schools and co actice areas. Delegates addressed a challenge to the “birthright” les and Standards in almost all pr Ru literally and figuratively, d a long way with the ABA, both clause of the Fourteenth Amendment, which would In sum, I have travele e alf of our Bar is well worth it to m deny citizenship to children of illegal aliens and nvinced the time I devote on beh and I am co rogressive d the ABA are both vibrant and p others who were born on United States soil. and to the profession. Our Bar an tment and membership in both. As I write this, Rhode Island is recovering from nd I am proud of my time commi organizations, a Rhode ficed much of my free time to the Hurricane Irene and disaster preparedness is high on As a solo practitioner I have sacri ly wish more solos, indeed, more the ABA’s concerns. Additionally, a model act cover - the ABA. It has been worth it. I on Island Bar and direct e involved to reap the benefits of ing Representation of Children in Abuse, Neglect members of our Bar, would becom and Dependency Proceeding was adopted, as well as engagement. e to my continued commitment initiatives to combat human trafficking, an issue that e answered your questions relativ I hope I hav rk with you disagree at times, I promise to wo has surfaced in Rhode Island. There were also votes to the ABA and, although we may ns of our profession’s future. taken on child pornography offenses, immigration all to promote our respective visio law reform, Brady disclosures in federal criminal Rhode Island Bar Journal January/February 2012 29 LAW OFFICE OF Immigration Lawyer H ENRY V. BOEZI III, P.C. Joan Mathieu U.S. TRADEMARK SEARCHES Call me if your legal advice may AND REGISTRATIONS affect your clients’ immigration status. U.S. COPYRIGHT SEARCHES Protect yourself and your client AND REGISTRATIONS 401-4 21-0 911 U.S. PATENT SEARCHES DOMAIN NAME REGISTRATION We practice only US Immigration Law with 15 years experience in AND DISPUTE RESOLUTION • IRCA. 1- 9, no-match advice • Minimizing adverse immigration INTELLECTUAL PROPERTY for US employers consequences of crimes LITIGATION • Foreign Investor, business • Deportation/removal M.I.P. – MASTER OF and family visas • All areas of immigration law – INTELLECTUAL PROPERTY • Visas for health care professionals referrals welcome • Visas for artists and entertainers 67 CEDAR STREET Member and past CFL chapter president of the American Immigration SUITE #105 P ROVIDENCE, RI 02903 Lawyers Association. BU Law and MPA Harvard Graduate. VOICE: 401.861.8080 FAX: 401.861.8081 Full resume on my web site www.immigrators.com EMAIL: [email protected] Law offices of Joan Mathieu, 248 Waterman Street, Providence, RI 02906 WEBSITE: www.hvbiiilaw.com 30 January/February 2012 Rhode Island Bar Journal Creative Receivership and Redevelopment: A Commentary In June of 2010, Justice Michael A. Silverstein, Rhode Island Superior Court appoints an attor - presiding over the Providence County Superior ney to preserve the value of distressed assets for Court Business Calendar, placed the assets of a the benefit of creditors and stakeholders. The former jewelry plating company under the pro - distressed assets can be a real estate project, tection of a receivership. The consolidated cases the assets of a failed business, or an ongoing are Edward Marandola, Jr. v. Victory Properties, business. In addition to traditional stakeholder Inc. , P.B. 10-1861; Edward Marandola, Jr. v. interests such as the banks who lent money to Poisitano Realty Co., Inc. , P.B. 10-1862 and the failed project, stakeholder interests can also Edward Marandola, Jr. v. Wyndham Properties, include the preservation or creation of economic LLC , P.B. 10-1863. The real estate is situated investment in the State of Rhode Island. Quite in close proximity to Rhode Island Hospital, simply, the preservation and/or creation of eco - W. Mark Russo, Esq. Hasbro Children’s Hospital, Women and Infants’ nomic investment leads to jobs and economic Ferrucci Russo, P.C., Hospital and the new location of Brown growth. Given the current, dire state of Rhode Providence University’s Medical School. However, the Island’s economy, receiverships have become a real estate did not have any redevelopment critical area of the law. approvals, the buildings were abandoned and in In this instance, the Receiver recognized the extreme disrepair, and the site was impacted by physical and geographic attributes of the prop - environmental issues. The Receiver, Vincent A. erty relative to the City of Providence’s focused Indeglia, Esq., recognized the real estate’s rede - and related economic development efforts. The velopment potential and began to work with Receiver realized the distressed property could This initiative is the City of Providence through the receivership be used to replicate an ambitious project similar based on strength - process to incentivize the marketplace. to the Gateway Park Project in the City of Through a unique partnership effort between Worcester, Massachusetts, which began as ening a partnership the Rhode Island Superior Court Business Cal- a coalition between Worcester Polytechnic between existing endar, the Receiver and the City of Providence, Institute and the Worcester Business Develop- on July 18, 2011, the Providence City Council ment Corporation. Based upon the Receiver’s healthcare and enacted an economic development initiative research, the Gateway Park Facility operates educational insti - designed to revitalize the land occupied by the as a 550,000 square foot mixed-use facility abandoned, jewelry-plating company. The prop - providing space for a range of commercial tutions and aimed erty, known as Victory Square, lies in the heart enterprises, including biomedical and technical at driving a new, of the City of Providence’s Jewelry District research and development, laboratory and which the City is actively working to transform clinical studies, professional education, retail knowledge-based into a new Knowledge District. This initiative operations and corporate offices. economy. is based on strengthening a partnership between At the time the Receiver was considering existing healthcare and educational institutions initiating the development of Victory Square, and aimed at driving a new, knowledge-based Gateway Park was expected to expand to economy. include a new, 92,000 square foot facility pro - As a result of this partnership and initiative, viding further space for laboratory, educational the Receiver successfully marketed and sold and office spaces. However, Victory Square had the Victory Square real estate for a significant several hurdles to overcome before the market - return, reflecting the potential for redevelop - place would recognize this asset’s value and ment within the envisioned knowledge-based appreciate the City’s work to advance its economy. The Victory Square initiative is signif - knowledge-based economy initiative. icant because it will spur development in the As attorneys, in the past, we have had occa - Knowledge District, and it was structured, sion to assist developers on significant develop - negotiated and pursued by a Court-appointed ment initiatives including the Masonic Temple Receiver. Hotel. So, why not assist the Receiver in striving A receivership is a process in which the toward making Victory Square more attractive Rhode Island Bar Journal January/February 2012 31 to the marketplace? The Receiver was able to secure Master Plan Approval for a 700,000 square foot mixed-use develop - ment for biomedical, technology, research and development, medical manufacturing BANKRUPTCY and office space that will, hopefully, serve as the centerpiece of the Knowledge District. Additionally, the Receiver was Revens, Revens & S t. Pierre able to secure loans to address immediate environmental issues created by aban - James E. Kelleher doned plating lines and years of industrial use. Furthermore, the Receiver was able to negotiate the economic development initiative enacted on July 18, 2011. 946 Ce nt erville Road The significance of Victory Square is Warwick, RI 02886 not only in the fact that the property will now be acquired and developed as a key element in the Knowledge District con - (4 01) 822 -2900 telephone cept, it also comes from an examination (4 01) 82 6-3245 facsimile of what it took to advance Victory Square jamesk @rrsplaw.com email through a Receivership proceeding. First, it required the Rhode Island Superior Court to allow the Receiver the creativity and flexibility to pursue this Attorney to Attorney Consultations/Referrals concept. The Superior Court, long ago established a Business Calendar, currently run by Associate Justice Michael A. Silverstein, specifically designed to expe - dite and allow flexibility in business matters, including receiverships, to help preserve investment and jobs in the State of Rhode Island. Without the Court’s involvement, Victory Square could not IfIf yyouyourour cclientlient nneedseedsds aann have been advanced. eexpertxperrtt bubusinessusiness vvavaluation…aluuaaattion… Second, the City of Providence embraced and supported a new and novel ccallall iinn a realreal eexpert.xperrtt. approach. The Office of City Council OverOver 22,500,55000 accurate,accurate, iindependentndependent andand defendabledefendable valuationsvaluations providedprovided sincesince President Michael A. Solomon and Mayor thethe earlyearly 1980s.1980s. DecadesDecades ofof experienceexperience inin bothboth benchbench andand juryjury trials.trials. Angel Taveras’ Office openly supported a method and process allowing the entice - ment of private developers and private funding to spur economic growth for the LeoLeo J.J. DDeLisi,eLisi, Jr.,Jr., City of Providence and, ultimately, the ASA,ASA, MMCBA,CBA, AABARBAR State of Rhode Island. An excellent illus - tration of their progressive philosophy is the ordinance recently enacted by the AccreditedAccredited SeniorSenior AppraiserAppraiser Providence City Council. Negotiated by MasterMaster CertifiedCertified BusinessBusiness AppraiserAppraiser City Council Finance Chairman John J. AAccreditedccredited iinn BBusinessusiness AppraisalAppraisal ReviewReview Igliozzi, the ordinance will secure, for the FFellow,ellow, AAmericanmerican CCollegeollege ooff ForensicForensic ExaminersExaminers City, an immediate payment of back taxes ValuingValuing BusinessesBusinesses sincesince 19841984 at closing, stabilize taxes to encourage future private development, and help establish a far-reaching “Buy-Providence” www.DeLisiAndGhee.comwww.DeLisiAndGhee.com initiative aimed at giving Providence businesses advantages with regard to supplying materials for development and 989989 ReservoirReservovoir AAvAvenuevenue BUSINESSBUSINESS VVAVALUATIONSALUAATTIONS ongoing operation of Victory Square, as Cranston,Cr anston, RRII 0029102910 401.944.0900401.944.0900 AARERE AALLLL WWEE DDO.O. AALLLL DDAY.AAYY. well as preference with regard to future [email protected]@DeLisiAndGhee.com EVERYDAY.EVERYDAY.. job opportunities. In a day and age when we continually 32 January/February 2012 Rhode Island Bar Journal read about negative economic issues such as pension funding that seem to saddle our State with a debilitating sense of Lawyer Morse and Judge Hurst Honored paralysis, Victory Square was undertaken with existing economic development for Practical Guide to Discovery and tools and leadership that is willing and Depositions eager to be creative and flexible. Victory Square was not paralyzed, because it involved unique, dynamic approaches. Hopefully, Victory Square will help trans - form what was once our Jewelry District Massachusetts Continuing Legal Education (MCLE), a non-profit into the Knowledge District, becoming a organization dedicated to raising the caliber of lawyers’ professional center for a new, knowledge-based econ - omy providing new industry, identity and and ethical service to their communities, announced that MCLE | New job opportunities for Rhode Island. If it England’s Rhode Island collection received the Association for does, there is some leadership to thank, Continuing Legal Education’s ACLEA Best award. At the Association instead of blame. for Continuing Legal Education’s 47th Annual Meeting in August, Editor’s Note: W. Mark Russo, Esq. acted as A Practical Guide to Discovery and Depositions in Rhode Island , counsel to Receiver, Vincent A. Indeglia, Esq. O edited by Mark B. Morse, Esq., of the Law Office of Mark B. Morse in Providence, and Hon. Patricia A. Hurst, Rhode Island Superior Court Associate Justice, received an Award for Outstanding Achievement in the category of Best Publication. The book was praised for its conversational style and such practical features as judicial and ethical commentary, practice notes and descriptive examples. WORKERS’ COMPENSATION DAVI DW. DUMAS Revens, Revens & S t. Pierre Michael A. St. Pierre , , 946 Ce nt erville Road Warwick, RI 02886 - (4 01) 822 -2900 telephone (4 01) 82 6-3245 facsimile mikesp @rrspla w.com email -- Attorney to Attorney Consultations/Referrals Rhode Island Bar Journal January/February 2012 33 Modest Proposals continued from page 11 SOCIAL SECURITY DISABILITY rules do not require experts to provide reports detailing their opinions and con - MEDICAL MALPRACTICE clusions. As the notes to 1993 amend - ments to the Federal Rules observed, “The Donna M. Nesselbush information disclosed under the former Joseph P. Marasco rule in answering interrogatories about Mariam A. Lavoie the ‘substance’ of expert testimony was Joseph P. Wilson frequently so sketchy and vague that it Mark H. Grimm rarely dispensed with the need to depose Jennifer L. Belanger the expert and often was even of little Paul E. Dorsey help in preparing for a deposition of the William Elderkin, Jr. witness.” A. Chace Wessling Consistent with current practice in Timothy P. Lynch federal court, Rule 26 should be amend - Patrick S. Cannon ed to require parties to submit a compre - hensive report for each expert witness Attorney Referrals Welcome testifying at trial. The report should con - tain: 1) a complete statement of all opin - ions the expert will express and the basis and reasons for them; 2) the facts or data WWW.M-N-LAW.COM considered in forming those opinions; 3) all exhibits that will be used to sum - marize or support the opinions; 4) the witness’s qualifications, including a list of all publications authored in the previ - ous ten years; 5) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or deposition; and 6) a statement of the compensation to be paid for the study IMMI GRAT ION LAW and testimony in the case. The expert should sign the report under penalty of perjury as is the case with interrogatory JAMES A. BRIDEN answers. Expert reports serve several purposes. Blais Cunningham & Crowe Chester, LLP They enable opposing parties to under - 150 Main Street stand the expert’s opinions and their fac - Pawtucket, RI 02860 tual grounding so that proper rebuttal can be prepared. From an efficiency 401-723-1122 standpoint, comprehensive expert reports should reduce the length of expert depo - sitions and, in some cases, eliminate their need altogether. In fact, such expert reports might even convince one party or other of the virtues of settlement. BALSOFIORE & COMPANY, LTD. 8. Pretrial Orders And Final Pretrial Conference. FINANCIAL INVESTIGATIONS Recently, in Providence County, pur - suant to administrative order, cases that FORENSIC ACCOUNTING LITIGATION SUPPORT have been assigned to the trial calendar, FINANCIAL PROFILES OF INDIVIDUALS AND BUSINESSES other than business calendar and medical LOCATE PEOPLE – ASSET SEARCHES malpractice cases, proceed to a pretrial conference to address a variety of pre-trial Brian C. Balsofiore, CFE [email protected] issues including dispositive motions, trial Certified Fraud Examiner (401) 486-7145 witnesses and exhibits, potential trial RI Licensed Private Detective issues, ADR and other special or unique 34 January/February 2012 Rhode Island Bar Journal issues particular to the parties or the case .8 The conference is conducted pur - suant to Rule 16 of the Superior Court Rules of Civil Procedure and Rule of RICHARD S. Procedure 2.4. The Superior Court’s administrative order is a welcome improvement that is sure to facilitate preparation of cases for UM PHREY trial and thus expedite their resolution. H The administrative order should address the filing of motions in limine prior to LAW OFF ICES trial and the scheduling of a final pretrial conference before the actual trial judge who will hear the case. Further, counties Richard S. Humphrey beyond Providence should be included within the administrative order’s ambit. Erin B. McKenna The goal is for the parties to be prepared Christina Dzierzek for trial and, equally as important, for the court to have sufficient time to con - sider any pretrial motions. DUI / Refusal Moreover, there should be a standard pretrial order governing the disclosure of DUI / Serious Bodily Injury trial witnesses, the pre-marking of exhibits, DUI / Death Resulting the disclosure and use of demonstrative Social Host Liability exhibits and the filing of proposed jury instructions. The order should require 401-62 4- 61 52 counsel to meet and confer to resolve as www.richardhumphreylaw.com many evidentiary objections as possible and establish deadlines for exchanging and cross-designating deposition testimony for use at trial. The use of courtroom technology or other innovative techniques should be explored as well. 9. Phasing Out The Motion Calendar Despite the best efforts of the motion MARC J. SOS S, ESQUIRE judges to move through the daily calen - dar, the sheer volume, particularly of non- dispositive motions, makes expeditious resolution a daunting task. The result is that most non-dispositive motions are not well briefed or even read before the court takes the bench, and attorneys are 591 0 Post Boulevard required to wait, sometimes hours, before P. O. Box 1101 27 a contested motion is heard. On disposi - tive motion days, the court is frequently Lakewood Ranch, Florida 34 211 faced with multiple motions of signifi - (9 41 ) 928-0 310 cance without the benefit of the consider - mjs @fl-estateplanning.com able study time that one normally finds ww w.fl-estateplanning.com in the federal court system. In both instances, the court may be facing the matter for the first and only time with little more of the case background and Available to assist you and history than what might be provided your clients in Florida with Estate orally or in briefing. Planning, Probate Administration The motion calendar should be phased and Document Revie w. out. The Superior Court should move toward the federal court model by assign - ing each case to a single judge from the outset until discovery closes and disposi - Rhode Island Bar Journal January/February 2012 35 tive motions are resolved. This would plaintiffs for delaying cases and punishes compensate the injured for the loss of allow judges to keep track of their own defendants, even those who legitimately use of money. There are a variety of case loads and schedule motions in light want to move them forward .10 While it is approaches that the General Assembly of the time and attention necessary for true that the rate may prompt defendants might use to achieve these goals such as each particular one .9 Equally important, to expedite cases, plaintiffs are often in a Treasury bill rate plus a certain percent - the court itself can track the progress of the driver’s seat, inasmuch as they nor - age, say 3%. However, in light of the each judge’s supervision of the cases so mally dictate when, for instance, they long-standing use of a single figure, a 6% that they move through the system at the will depose the opposing party or dis - interest rate would appear to be reason - appropriate pace. close their experts. Thus, a defendant able and appropriately promote the nec - Arguably, phasing out the motion cal - may be held financially liable for delay essary goals without providing a perverse endar, given its lengthy history, is not a that it did not cause. Indeed, it can be incentive to delay the resolution of cases. modest proposal for reform. However, argued that the extremely high prejudg - the court’s business calendar is a model ment interest rate is an impediment to ENDNOTES 1 for this form of change. The success of settlement in many cases. Warren Burger, WHAT ’S WRONG WITH THE COURTS : T HE CHIEF JUSTICE SPEAKS OUT , U.S. that calendar suggests that a modified Rhode Island’s prejudgment interest News & World Report (Vol. 69, No. 8, Aug. 24, federal court approach would be equally statute should be amended. This will 1970) 68, 71 (address to ABA meeting, Aug. 10, successful for all cases. require the General Assembly to take 1970). action because the court lacks the power 2 Currently, only cases assigned to the trial calen - dar are eligible for Settlement Week. Settlement 10. Reduction Of The 12% to effect this particular change. Nonethe- Week should be expanded to include those cases Pre-Judgment Interest Rate. less, the court can use its considerable that are not necessarily on the trial calendar but Rhode Island law provides for 12% influence to recommend change as it that the parties believe are sufficiently far along prejudgment interest which runs from has done in other areas of the law when that there is a significant likelihood of settlement. 3 In medical malpractice cases, no later than the the date the cause of action accrues. R.I. warranted. first anniversary of the commencement of the Gen. Laws § 9-21-10. Compared to inter - While any rate reduction may be con - action, the parties must file a joint motion for a est rates available elsewhere such as the sidered an arbitrary exercise, the rate discovery conference, after which the court will U.S. Treasury rate, Rhode Island’s rate should effectuate two primary goals – issue an order establishing a schedule for fact dis - covery and expert disclosure and a deadline for is exorbitant. Worse, the rate rewards encourage early settlement of cases and completion of expert depositions. Administrative Do you or your family need help with any personal challenges? We provide free, confidential assistance to Bar members and their families. Confidential and free help, information, assessment and referral for personal challenges are Brian Adae, Esq. 831-3150 available now for Rhode Island Bar Association members and their families. This no-cost Neville J. Bedford, Esq. 709-4328 assistance is available through the Bar’s contract with Resource International Employee Henry V. Boezi III, Esq. 861-8080 Assistance Services (RIEAS) and through the members of the Bar Association’s Lawyers David M. Campanella, Esq. 273-0200 Helping Lawyers (LHL) Committee. To discuss your concerns, or those you may have about John L. Capone, Esq. 392-4070 a colleague, you may contact a LHL member, or go directly to professionals at RIEAS who Diana Degroof, Esq. 274-2652 provide confidential consultation for a wide range of personal concerns including but not Sonja L. Deyoe, Esq. 437-3000 limited to: balancing work and family, depression, anxiety, domestic violence, childcare, Kathleen G. DiMuro, Esq. 944-3110 eldercare, grief, career satisfaction, alcohol and substance abuse, and problem gambling. Lin M. Eleoff, Esq. 480-9101 Merrill J. Friedemann, Esq. 331-1434 When contacting RIEAS , please identify yourself as a Rhode Island Bar Association member Maureen D. Gemma, Esq. 453-1355 or family member. A RIEAS Consultant will briefly discuss your concerns to determine if your Julie P. Hamil, Esq. 222-3266 situation needs immediate attention. If not, initial appointments are made within 24 to 48 Jeffrey L. Koval, Esq. 230-7277 hours at a location convenient to you. Please contact RIEAS by telephone: 401-732-9444 or Nicholas Trott Long, Esq., Chairperson 351-5070 toll-free: 1-800-445-1195. Genevieve M. Martin, Esq. 274-4400 Lawyers Helping Lawyers Committee members choose this volunteer assignment because Dennis J. McCarten, Esq. 965-7795 they understand the issues and want to help you find answers and appropriate courses of Daniel P. McKiernan, Esq. 223-1400 action. Committee members listen to your concerns, share their experiences, offer advice Joseph R. Miller, Esq. 454-5000 and support, and keep all information completely confidential. Roger C. Ross, Esq. 723-1122 Adrienne G. Southgate, Esq. 301-7823 Please contact us for strictly confidential, free, peer and professional assistance Ms. Judith G. Hoffman, 732-9444 with any personal challenges. LICSW, CEAP, RIEAS or 800-445-1195 Lawyers Helping Lawyers Committee Members Protect Your Privacy 36 January/February 2012 Rhode Island Bar Journal Order No. 2009-26. 4 Superior Court Administrative Order No. 2011- 07. 5 As a further basis to expedite discovery, it is recommended that the time for a party to respond WORKERS’ COMPENSATION to interrogatories and requests for production be reduced from forty days to thirty, as is the case AND SOCIAL SECURITY with requests for admissions and for written dis - covery in the federal system. This would require a change to the existing rules of civil procedure. CONSULTATION 6 Sanctions can run the gamut from an award of costs to waiver of objections. 7 Since signed orders are a staple of the court sys - ALBERT J. LEPORE, JR. tem, the court should appoint a single “orders” clerk responsible for receiving proposed orders and ensuring that they are executed by the appropriate judicial officer and are filed in the case file. COIA & LEPORE, LTD. 8 Superior Court Administrative Order No. 2011- 07. 226 SOUTH MAIN STREET 9 Even if the motion calendar is retained, the court should consider scheduling a morning and PROVIDENCE, RI 02903 afternoon session, perhaps based on even and odd case numbers, so that wait times are reduced. 4 01- 751- 5522 10 Indeed, the high interest rate encourages plain - tiffs to postpone filing their lawsuits until right www.Coialepore.com before the statute of limitations expires. As a stark example, a personal injury plaintiff who files suit @ just prior to the three-year limitations period has Email: aleporej coialepore.com accrued 36% prejudgment interest even before the case has commenced. In Massachusetts, by contrast, prejudgment interest in tort cases runs from the date that the lawsuit was filed. In con - Attorney-to -A ttorney Referrals tract cases, interest is calculated from the date of the breach or demand, but if that date is not established then from the commencement of the action. O How to Help Clients and Why Outsource Legal Writing Colleagues Find and Research? >>>> <<<< YOU Gain the fresh perspective an One easy and economical way to help clients outside attorney can bring to and colleagues connect with you is through your case; the Bar’s online Attorney Directory . To view Provide a sounding board to help your current listing, go to the Bar’s website at frame and narrow the issues; www.ribar.com . On the left side of the Home page, double click on the blue and white Weather the inevitable busy Attorney Directory icon, type in your name times; and and click on Search , then click on View Avoid fixed overhead. Pay only for Details . Please ensure all your contact the time to complete the project information is correct including your practice name or business, postal, email and website addresses, and telephone and fax numbers. Law Offices of Maurene Souza And, if you don’t have your photograph, please 50 South Main Street send one to the Bar for posting. Contact Bar Providence, RI 02903 Communications Program Coordinator 401 -27 7-9822 souzalaw @cox.net Kathleen Bridge at: [email protected] Licensed in Rhode Island and Massachusetts. or 401-421-5740 . Rhode Island Bar Journal January/February 2012 37 Municipal Insolvency Lite continued from page 23 statute 41 requires the appointment of, and funding for, an independent “financial officer” for five years. All financial mat - BA NKRUPTCY ters in the city regarding the transfer of funds, borrowing, or involving a contract lasting more than one fiscal year must be Law Office of Steven J. Hart submitted to and reviewed by this inde - 328 Cowesett Avenue, Suite 3 pendent financial officer who must then write an opinion as to whether or not West Warwick, RI 02893 the municipality’s financial resources and revenues will be adequate to support the proposal. This opinion is to be submitted to the elected chief executive officer prior telephone: (4 01) 828-9030 to any appropriation. In effect this gives the financial officer control (a veto) over facsimile: (4 01) 828-9032 municipal spending, since expenditures email: hartlaw @cox.net in excess of appropriations are legally prohibited under the municipal receiver - ship statute .42 At the end of the five years, presumably, the probation will end, and Central Falls can revert back to gover - Attorney to Attorney Consultations / Referrals nance under its municipal charter with - out direct state involvement. Whether this means the state will also no longer be fully funding the Central Falls Schools remains unanswered. ENDNOTES 1 U.S. Constitution, 10th Amendment: “The JOSEPH A. KEOUGH powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are Retired M agistrate Judg e/ reserved to the States respectively, or to the people.” 2 U.S. Constitution, Article I, section 10, clause 1: Rhode Island Superior Court “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Is Now Available For Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Me diat io n & Ar bitrat io n Serv ices Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation Torts, Business Disputes, Domestic Matters of Contracts, or grant any Title of Nobility.” 3 David L. Dubrow, CHAPTER 9 OF THE 110 Armistice Boulevard, Pawtucket, RI 02860 BANKRUPTCY CODE : A V IABLE OPTION FOR (401) 724-3600 jakemas [email protected] MUNICIPALITIES IN FISCAL CRISIS ,?, 24T HE URBAN LAWYER 3, 548 (Summer 1991). Alternate Dispute Resolution 4 From Riski, MUNICIPAL BANKRUPTCY , 38 January/February 2012 Rhode Island Bar Journal 1008ISLC_v18 ...,> (last visited – 3/21/11). 13 Ted Nesi, BANKRUPT CENTRAL FALLS GETS RECEIVER , P ROVIDENCE BUSINESS NEWS , May 19, 2010, Rhode Island Bar Journal January/February 2012 39 3/21/11). 33 Judge Flanders, speaking at “Constitution Day,” at the Fabre Line Club, Providence, R.I., MARK A. PFEIFFER on September 16, 2011. Alternative Dispute Resolution Services 34 John Hill, LAWYER JONATHAN SAVAGE CUTS $30,000.00 FROM BILL FOR RUNNING FINANCIALLY www.mapfeiffer.com TROUBLED CENTRAL FALLS , T HE PROVIDENCE JOURNAL , December 10, 2010, SOLACE Helping SOLACE, an acronym for Support of Bar Members are screened and then directed through the Lawyers, All Concern Encouraged, is a SOLACE volunteer email network where new Rhode Island Bar Association program in Times members may then respond. On a related allowing Bar members to reach out, in a of Need note, members using SOLACE may meaningful and compassionate way, to their request, and be assured of, anonymity colleagues. SOLACE communications are for any requests for, or offers of, help. through voluntary participation in an email-based network To sign-up for SOLACE, please go to the Bar’s website at through which Bar members may ask for help, or volunteer to www.ribar.com , login to the Members Only section, scroll assist others, with medical or other matters. down the menu, click on the SOLACE Program Sign-Up , and Issues addressed through SOLACE may range from a need for follow the prompts. Signing up includes your name and email information about, and assistance with, major medical problems, address on the Bar’s SOLACE network. As our network grows, to recovery from an office fire and from the need for temporary there will be increased opportunities to help and be helped by professional space, to help for an out-of-state family member. your colleagues. And, the SOLACE email list also keeps you The program is quite simple, but the effects are significant. informed of what Rhode Island Bar Association members are Bar members notify the Bar Association when they need help, doing for each other in times of need. These communications or learn of another Bar member with a need, or if they have provide a reminder that if you have a need, help is only an something to share or donate. Requests for, or offers of, help email away. 40 January/February 2012 Rhode Island Bar Journal Lawyers on the Move Paul G. Bettencourt, Esq. moved his law office to 197 John R. Grasso, Esq. has moved the Law Office of John R. Warren Avenue, Suite 201, East Providence RI 02914. Grasso, Inc. to One Custom House Street, 3rd Floor, 401-431-6411 pgblaw @cox.net Providence, RI 02903. 401-272-4001 jrg @johngrassolaw.com John L. Calcagni III, Esq. relocated the Law Office of John www.johngrassolaw.com L. Calcagni III, Inc. to One Custom House Street, Suite 300, Providence, RI 02903. Taylor J. Hills, Esq. has joined the law firm of Aurora Law 401-351-5100 jc @calcagnilaw.com www.calcagnilaw.com Ltd. as an associate attorney, 40 Webb Street, Cranston, RI 02920. Louise Durfee, Esq. was appointed Chair of the Rhode 401-942-6550 taylor @auroralaw.us Island Judicial Nominating Commission by Governor Lincoln D. Chafee . Patrick J. Smock, II, Esq. is now the Compliance Director for CFO Compliance at One Park Row, Fifth Floor, Louis A. Geremia, Esq. , Lisa A. Geremia, Esq. , and Paul Providence, RI 02903. Demarco, Esq. have moved the law office of Geremia & 401-454-0990 [email protected] DeMarco, Ltd. to Village on Vine, 620 Main Street, CU 3A, www.cfo-compliance.com East Greenwich, RI 02818. 401-885-1444 lou @geremiademarco.com Seth Yurdin, Esq. has relocated his law office to 86 Weybosset lisa @geremiademarco.com paul @geremiademarco.com Street, Suite 400, Providence, RI 02903. 401-484-7207 syurdin @yurdinlaw.com For a free listing, please send information to: Frederick D. Massie, Rhode Island Bar Journal Managing Editor, via email at: fmassie @ribar.com, or by postal mail to his attention at: Lawyers on the Move, Rhode Island Bar Journal, 115 Cedar Street, Providence, RI 02903. TITLE CLEARING ______QUIETING TITLE ACTIONS Structuring tax-defe rred exchanges Roger C. Ross throughout the U.S. with Integrity and Expe rience Blais Cunningham & Crowe Chester, LLP Charles J. Ajootia n, Es q. President and Counsel R 150 Main Street Pawtucket RI 02860 Rhode Island’s leading Intermedia ry since 199 7. TELEPHONE: (4 01 ) 723 -11 22 FAX: (4 01 ) 726- 6140 EMAIL: rross @blaislaw.com Rhode Island Bar Journal January/February 2012 41 In Memoriam John J. Hardiman, Esq. stalwart your entire life and seamlessly Hans Peter Olsen, III, Esq. John J. Hardiman, 56, of Love Lane, joined the causes of social justice into your Hans Peter Olsen, III, 73, of North Kingstown, passed away on legislative life. You spoke out against racial Providence, passed away on October October 19, 2011. Born in Providence, injustice and chaired an Ad Hoc group 28, 2011. He was the husband of he was the son of Dr. James F. and to study the problem, and eventually led Elizabeth Gayton Olsen. Peter was Margaret E. Hogan Hardiman. He was the charge in the General Assembly that born in Detroit, Michigan, the son of the father of Elizabeth L. Hardiman of passed a Fair Housing Law, and paved Hans Peter Olsen, Jr. and Paula Eckers North Kingstown and Emmett K. the way for open public meetings. At the Olsen. He graduated from Michigan Hardiman and his wife Calla of North same time, you gave your vocal stamp of State University, Georgetown University Kingstown, two brothers, Dr. James M. approval to women’s rights legislation Law School and received a Master of Hardiman of Lithia-Pinecrest, FL , like the Equal Rights Amendment in your Laws, in Taxation, from New York Dennis F. Hardiman of Tampa, FL , capacity as chairperson of the Senate University. He served as a clerk at the two sisters, Anne M. Hardiman of Judiciary Committee. In 1971, it was United States Court of Claims and, in Watertown, MA and Lucille M. pointed out that you concentrated much 1972, joined the law firm then known O’Donnell of North Kingstown. John of your efforts on bills to help the ordi - as Hinckley, Allen Salisbury & Parsons spent his 30 year career with the Rhode nary citizen, such as the Fair Housing (now Hinckley, Allen & Snyder LLP ), Island Public Defender’s Office. Law, consumer protection, antipollution, becoming a partner in 1974. He was a conservation and for school teachers rights member of the Distribution Committee Julius C. Michaelson, Esq. to collective bargaining, (the bill named of The Champlin Foundations and a the Michaelson Act), and that your work former member of the Board of Julius C. Michaelson, 89, of Angell St., in these areas attracted much attention Providence, passed away on November Directors of Crossroads Rhode Island beyond the borders of Providence. It has and the Fund for Community Progress. 12, 2011. Born in Salem, MA he was the been said that whatever the issue, you son of the late Carl and Celia Cooley He was a member of St. Joseph Church seemed to instinctively side with society’s in Providence, where he served on the Michaelson. A Providence resident for less fortunate, not always a popular or most of his life, Mr. Michaelson was Parish Council and Finance Committee, pragmatic position to take. You followed and tutored at Crossroads Rhode Island. educated in Providence Public Schools the star of social justice regardless of the graduating from Hope High School Besides his wife he leaves: a son, Hans consequences. In a larger frame, you Peter Olsen IV, M.D. , of Mountain Top, and graduating from Boston University served on the National Institute for School of Law. He received his Masters PA ; two daughters, Heidi S. Patterson Democracy under Madeline Albright and Stephanie E. Olsen both of New Degree in Philosophy from Brown to promote democracy in third world University. He served as a First York City; and a sister, Marcia countries, were a delegate to the 1980 Macpherson of Tucson, AZ . Lieutenant in the U.S. Army during Conference on Security and Cooperation WWII . A Past President of the Rhode in Madrid, and in 1988, you participated Island Bar Association, he began his in American-Russian bilateral talks in law career with Milton Stanzler, as a Moscow. In a break with partisanship, principle partner in the law firm of President Reagan appointed you to the Abedon, Michaelson and Stanzler, Foreign Service Grievance Board. retiring in 2010 from Michaelson & Throughout your distinguished career, you Michaelson, where he was a partner rose above party politics to do what you with his son Jeffrey. He was general thought was the right thing. You truly counsel to the State AFL-CIO , served as represent the State’s Independent Spirit.” a Senator in the Rhode Island General Mr. Michaelson is survived by Rita, his Assembly for a dozen years and was wife of sixty-one years, sons, Mark and the Rhode Island Attorney General. He Jeffrey, and daughter-in-law Karen. concentrated much of his political and legal efforts championing causes of social justice to aid the ordinary citizen and society’s less fortunate. In 2002, Please contact the Rhode Island Bar Association if a member you know passes he was inducted into the Rhode Island away. We ask you to accompany your notification with an obituary notice for the Heritage Hall of Fame. Part of its Rhode Island Bar Journal. Please send member obituaries to the attention of citation reads as follows: “Your real Frederick D. Massie, Rhode Island Bar Journal, Managing Editor, 115 Cedar Street, accomplishments rise above office Providence, Rhode Island 02903. Email: fmassie @ribar.com, facsimile: 401-421-2703, holding. 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