Rhod e Isl and Bar Journal Rhode Island Bar Association Volume 59. Number 6. May/June 2 011
Informational Privacy after Nelson Special Purpose Local Education Agency Real Estate Attorneys’ Liabilities after Groff Governor’s Pardoning Power Origins Book Review: Just Like Someone Without Mental Illness Only More So RHODE I SLAND Bar Association 1898 10 29 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 None of Your Damn Business: Informational Privacy after Nelson honest, courteous and fair. Peter J. Comerford, Esq. Editor In Chief David N. Bazar 13 Oh, Atlanta! American Bar Association Delegate Report: Editor Frederick D. Massie ABA Mid-Year Meeting Assistant Editor Kathleen M. Bridge Robert D. Oster, Esq. Editorial Board Victoria M. Almeida Ellen R. Balasco 15 Just a Wingman? Rhode Island’s Special Purpose Local Roland F. Chase Patrick T. Conley Education Agency Jerry Cohen Bryan W. Hudson, Esq. William J. Delaney Jay S. Goodman 21 Who Represents You in a Rhode Island Real Estate Closing? Taylor J. Hills Real Estate Attorneys’ Liabilities after Groff Graham H. Howland Bryan W. Hudson David M. Dolbashian, Esq. Marcia McGair Ippolito William M. Kolb 31 The Origins Of The Governor’s Pardoning Power Ernest G. Mayo Patrick T. Conley, Esq. Kathryn H. Petit Heather M. Spellman 37 BOOK REVIEW Just Like Someone Without Mental Illness Jonathan L. Stanzler Only More So: A Memoir by Mark Vonnegut, M.D. Jennifer L. Sylvia Joshua Teverow Roger C. Ross, Esq. Timothy C. Twardowski Scott J. Vernon Harris K. Weiner Executive Director Helen Desmond McDonald Association Lise M. Iwon Features Officers President William J. Delane y 3 A Fantastic Finish to a Wonderful Year! 29 Beyond the Bar President-Elect Michael R. McElroy 6 Bar’s Annual Meeting Speaker All in The Family : Musical Musings Treasurer Legendary Civil Rights Activist on Mobsters J. Robert Weisberger, Jr. Morris Dees 30 SOLACE – Helping Bar Members Secretary in Times of Need Direct advertising inquiries to the Editor, 7 World-Renowned Author and Frederick D. Massie, Rhode Island Bar Journal, Psychiatrist Dr. Peter Kramer 35 Counting to Ten Really Does Work 115 Cedar Street, Providence, RI 02903, Featured at Annual Meeting Seminar 38 Membership Benefit Update (401) 421-5740. 10 Bar’s Public Services Receives Law Firm Retirement Solutions from USPS (464-680) ISSN 1079-9230 $20,000 Grant in Support the American Bar Association Rhode Island Bar Journal is published bimonthly by the Rhode Island Bar Association, of US Armed Forces Service Project 38 Request for RWU Law Review Articles 115 Cedar Street, Providence, RI 02903. PERIODICALS POSTAGE PAID AT PROVIDENCE, RI 10 We Want You For The Armed Forces 39 Lawyers on the Move Legal Services Project! Subscription: $30 per year 43 June 2011 Annual Bar Meeting 11 Bar Member and National Guard Postmaster Free Wellness Center Send Address Correction to Rhode Island Bar Captain’s Praise for Armed Services Journal, 115 Cedar Street, Providence, RI 02903 Legal Project 42 Rhode Island Probate Court Listing on Bar’s Website www.ribar.com 25 Publish and Prosper in the Rhode 46 In Memoriam Front Cover Photograph Island Bar Journal Misquamicut, sculpture by Kameron Chaffari, 27 Continuing Legal Education 47 Advertiser Index Westerly, by Brian McDonald
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Cert no. XXX-XXX-000 A Fantastic Finish to a Wonderful Year!
I look forward to seeing you at our 2011 300 members signed up. Through the develop - Annual Meeting. Our Annual Meeting always ment of a list serve, the state’s legal community provides an outstanding opportunity to learn, is able to reach out in small, but meaningful and to improve your practice, and to socialize with compassionate ways to judges, lawyers, court your colleagues. This year will be particularly personnel, paralegals and their families who exciting. The Plenary Session speaker is leg - experience a crisis, death or catastrophic illness, endary civil rights activist Morris Dees, co- from the smallest problem to the largest. Follow - founder of the Southern Poverty Law Center, a ing a National Conference of Bar President’s non-profit organization dedicated to seeking jus - Program, we began soliciting volunteers of our tice. Through the Center, Attorney Dees uses the truly honorable profession. Members will let the law like a sword in his battle against prejudice. SOLACE program know of any member of the Lise M. Iwon, Esq. Other distinguished speakers include Brown legal community or members of their family President Medical School Professor, practicing psychiatrist who might have a need. SOLACE will then cir - Rhode Island Bar Association and best-selling author of six books including culate the request to the people who have joined Listening to Prozac and Against Depression , Dr. the program and, hopefully, we will get results. Peter L. Kramer who argues that depression is a woefully undertreated, serious disease with Continuing Legal Education: In addition to significant consequences, not only for the indi - the Annual Meeting, our CLE program is aimed vidual, but society. Popular legal technology at ensuring professional excellence and compe - speaker, Ross L. Kodner will present three pro - tence for our members. During the last fiscal grams over the two days. A frequent faculty year, we had 68 seminars with a total of 5,166 member on CLE programs throughout the registrations. Most of our programming is held Thank you all for country, he has received six awards from the at the Rhode Island Law Center, so we continue the opportunity Technolawyer Community and served four years to offer high quality programming at the lowest as Chair of the ABA Law Practice Management possible cost to our members. In addition, there to serve you as Section’s Computer and Technology Division. are many On-line CLE offerings, and we are President, and At this year’s Meeting, we are also offering a beginning to offer broadcast simulcasts of live Free Wellness Center in the Convention Center seminars at the Law Center. Highlights this year thank you for Rotunda featuring a range of free, interesting, included the Commercial Law seminar featuring your support. healthful and educational activities including: two nationally-recognized experts, a foreclosure blood pressure, cholesterol, and glucose screenings; program with experts from the federal govern - I am proud of chair massage stations offering relaxing shoulder ment, and a DWI seminar, negotiating and evi - what we have and upper back massages, and much more! dence. Food for Thoughts covered bankruptcy, On Thursday night, the festivities begin with the mental health court, collecting consumer debt, accomplished, a lively cocktail reception, followed by dinner, long term care insurance, social media, estate- and I look for - our Annual Bar Awards, for outstanding achieve - planning in uncertain times, estate-planning for ments, new officer elections, and an address by snowbirds, arbitration and warning signs of ward to even our new Bar President, William J. Delaney. Dur- fraud. Our second live webcast with Suffolk greater things for ing our Annual Awards Luncheon on Friday, we Law School was presented on cloud computing. are honoring our colleagues for their exceptional our Association community service and contributions to our Bar Risk Management Program: The free, risk going forward. Journal. Additionally, we will have the pleasure management program sponsored by Aon Affinity of remarks by our Chief Justice Paul A. Suttell. was another success story. The program: “An This has been a busy and fulfilling year at the Ethical Lawyer Meets the Internet” had 1,570 Bar Association. I would just like to highlight a members registered and was offered on five few of our many programs and services: different occasions in August and September.
Report on SOLACE program: We established New Lawyers Committee Activities 2010- a program called SOLACE – Support of Lawyers 2011: The New Lawyers Committee was very All Concern Encouraged, and we have nearly active this past year. The Committee held a fun
Rhode Island Bar Journal May/June 2011 3 and informative evening of interactive Public Services Programs – With your letter about the Public Services programs, networking with Bar Committee Chairs assistance, we made great strides in keep - Public Service Matters , which is emailed and the Bar’s Public Services representa - ing justice accessible for our poorest citi - on a regular basis. tives. The Committee offered a free, CLE zens. Your care for and involvement with seminar for new Bar members titled “View the neediest through the Bar’s Volunteer Strategic Planning: The newly-drafted From the Bench: The Superior Court Lawyer Program, the Elderly Pro Bono Rhode Island Bar Association Strategic Motion Calendar ,” and hosted a seminar, Program and the US Armed Forces Legal Plan for 2011-2015 was circulated and “The 60-Second Elevator Speech ,” on Services Project provided vital services to approved by the House of Delegates in how to develop a profession-based, short those in desperate need of legal assistance. April. The Strategic Planning Committee description of their strengths. The Com- was charged with reviewing and revising mittee hosted guest speaker, Cranston Unmet Legal Needs of Veterans and the Rhode Island Bar Association goals Mayor and Bar member Alan Fung, at Families – This new program is filling the and objectives to ensure we are doing the a presentation designed to help new Bar need for attorneys to directly represent best we can to meet or exceed member members understand their professional military personnel by accepting pro bono expectations. After a series of meetings career option. Committee members also cases. Volunteer opportunities are in a and discussions and using a survey volunteered help on the development of variety of civil law areas including, family designed to assist us in assessing the the Introduction to Practice and Practical law, probate issues, landlord/tenant, real Association’s priorities, the Committee Skills seminars. And, Bar staff are now estate, contracts, consumer, bankruptcy, concluded its work and developed a mis - working on a Committee-inspired Online collections, employment (USERRA) , immi - sion statement and a five year strategic Attorney Information Resource Center gration/naturalization, torts, income tax, plan for the Association. The 2015 Vision designed to connect Bar members seeking and other areas. The Association was of the Rhode Island Bar Association is: practice information with experienced recently notified by the Board of Trustees Building on our deep traditions of profes - volunteers. of the American College of Trial Lawyers sionalism, advocacy and service, the Foundation that we have received a grant Rhode Island Bar Association is the pre - Law Related Education – The Associa- of $20,000.00 for our U.S. Armed Forces eminent leader on behalf of the profes - tion has a goal to increase public under - Legal Services Project. Part of the grant sion. By being innovative and foresighted standing of and respect for the Law. The will be devoted to publicizing the project in serving the needs of practitioners, the Bar Association’s website’s Law Related and offering assistance to other bar asso - community, and the administration of Education (LRE) section features a com - ciations across the country in developing justice, our members are proud to be prehensive online curriculum library and similar programs. Rhode Island lawyers. an outline of the many LRE programs the Association offers including Lawyers in The Volunteer Lawyer Program (VLP) Strategic Plan Goals: the Classroom, offering volunteer lawyers has been administered by the Bar Associa- 1 Provide members with valuable, as resources and speakers to Rhode Island tion since 1986. This program provides relevant services that promote teachers; Speakers Bureau offering volun - low income Rhode Island residents with professional competence. teer lawyers as speakers for Rhode Island, pro bono legal assistance from private 2 Be indispensable to new/young adult-based, nonprofit groups and organi - practitioners interested in the needs of the lawyers. zations; and the Rhode Island Law Day community. The VLP provides legal assis - 3 Be a positive public voice on behalf Classroom Program and Essay Contest. tance to those who cannot obtain legal of lawyers and the judicial system. In response to our invitation to partici - representation on their own or through 4 Facilitate access to justice. pate in Rhode Island Law Day 2011 class - other existing agencies. The Volunteer 5 Foster the relationship between the room programs sent to all upper and mid - Lawyer Program collaborates with the bench and the bar to our mutual dle school teachers in all Rhode Island Rhode Island Coalition for Homeless, benefit. public, private and independent schools, assisting with volunteer attorney recruit - 6 Maintain an infrastructure that to date, we had 36 schools requesting 60 ment for their Homeless Legal Clinic supports us in fulfilling our vision. presentations. This year, the Bar invited project. VLP attorneys staff legal clinics members to complete and return LRE for the homeless and accept direct repre - Thank you all for the opportunity to volunteer information forms noting their sentation requests. Other Public Service serve you as President, and thank you interests in participating in the Bar LRE Programs include a continuing series of for your support. I am proud of what we programs including iCivics, an online Collection Clinics on an ongoing basis at have accomplished, and I look forward LRE and civics-based learning game pro - the Rhode Island Law Center and volun - to even greater things for our Association gram for middle school students initiated teer attorneys’ offices. In addition, clinics going forward. As you are reading this, by retired US Supreme Court Justice are provided in the areas of Bankruptcy I am bowing down in full queen-like Sandra Day O’Connor and the Rhode and Family Law. A free seminar, “Custody regalia, in thanks to the Bar staff who are Island Mock Trial program. The names of and Support Issues in Relocation Cases” amazing, competent and wonderful and those volunteers indicating an interest in was held in February, and, as a result, who make the best unified Bar on the iCivics and/or Mock Trial were forwarded many pro bono family law cases were planet! I am proud of our profession and to the respective program administrators. placed. Attorneys agree to accept a case proud of our Bar Association! O from either of these programs in exchange for free attendance. Watch for our news-
4 May/June 2011 Rhode Island Bar Journal None of Your Damn Business: Informational Privacy after Nelson
How often has opposing counsel posed a ques - Following 9/11, the federal government tion at a deposition or in an interrogatory and decided to impose the same requirements on you just wanted to tell your client, “Don’t contractors as had previously been applied to answer that, it’s none of his damn business .”? employees .9 As a condition of keeping their jobs My guess is, more often than you’d like. What at Cal Tech, these employees were forced to can you do in those circumstances? Maybe sign waivers allowing access to landlords, refer - more than you think. ences, acquaintances, and the like for open- Any matter, not privileged, relevant to the ended inquiries about a broad range of topics. subject matter of the pending action, is discov - The intended use of this information was not erable, even if it would be inadmissible at trial .1 specifically revealed, but the plaintiffs obtained Our Supreme Court has stated in no uncertain a document, called a “suitability matrix ,” that Peter J. Comerford, Esq. terms: purported to identify disqualifying factors Coia & Lepore, Ltd. The only instance, we repeat, the only regarding approval for clearance and came to instance in which an attorney is justified believe the investigation was designed to delve in instructing a deponent not to answer is into these factors .10 when the question calls for information that As set forth on a web site set up by the is privileged .2 plaintiffs regarding this suit ,11 the government, Thus, we must ask, what is privileged? 3 A as suggested by this matrix, would look at the recently-published guide to discovery practice following: in Rhode Island 4 finds over forty privileges rec - It mentions “carnal knowledge ,” “attitude ,” Any matter, not ognized by statute and case law, ranging from “sodomy ,” “keeping house of ill repute ,” “bes - privileged, relevant reports of the inspector of apiaries 5 (who may, tiality ,” “displaying of obscene material” as dis - after all, have a bee in his bonnet) through con - qualifying factors. “Cohabitation, adultery, ille - to the subject fidential tax information .6 Recently, however, gitimate children” could also be disqualifying. matter of the the United States Supreme Court has decided The plaintiffs filed suit, seeking declaratory a case, National Aeronautics and Space and injunctive relief on the basis that the probes pending action, Administration, et al v. Nelson, et al. , that violated their Fourth and Fifth Amendment is discoverable, alludes to the existence of a constitutionally- rights, as well as violating their constitutional derived right to informational privacy. 7 If such right to privacy. The district court denied the even if it would a right were to exist, it might give rise to a cor - request and an appeal ensued to the Court of be inadmissible responding privilege against being compelled Appeals which reversed the lower court and to divulge such information. For example, the enjoined the investigations pending a hearing at trial. right to instruct your client that the information on the merits .12 The injunction was based sought is none of the other side’s business. This entirely on a constitutional right to informa - article explores that issue. tional privacy previously recognized in the 9th The Nelson plaintiffs were employees of the Circuit and elsewhere. NASA moved for a California Institute of Technology (Cal Tech) re-hearing en banc, and the court denied that working at the Jet Propulsion Laboratory, a request, over a dissent .13 The dissent highlighted research lab run jointly by Cal Tech and NASA .8 the fragmented nature of the jurisprudence on All plaintiffs were designated as low risk based the issue of a right to informational privacy. on their relative lack of access to national secu - Judge Kozinski wrote: rity or classified information or projects. Many Is there a constitutional right to information - of them were long time employees who had al privacy? Thirty-two terms ago, the undergone background checks upon their hiring Supreme Court hinted that there might be by Cal Tech. However, unlike civil service and has never said another word about it. employees of the government, these contractors See Whalen v. Roe , 429 U.S. 589, 599, 97 had never been forced to undergo a governmen - S.Ct. 869, 51 L.Ed.2d 64 (1977) (alluding to tal investigation of their backgrounds. “the individual interest in avoiding disclo -
Rhode Island Bar Journal May/June 2011 5 RHODE ISLAND BAR JOURNAL Editorial Statement Bar’s Annual Meeting Speaker Legendary The Rhode Island Bar Journal is the Rhode Island Bar Association’s official magazine for Rhode Island attorneys, judges and others interested in Rhode Island Civil Rights Activist Morris Dees law. The Bar Journal is a paid, subscription magazine published bi-monthly, six times annually and sent to, among others, all practicing attorneys and sitting judges, in Rhode Island. This constitutes an audience of over 6,000 individuals. Covering issues of relevance and pro - At this year’s Annual Meeting, June 16th and 17th, viding updates on events, programs and meetings, the Rhode Island Bar Journal is a magazine that is read on the Rhode Island Bar Association is pleased to arrival and, most often, kept for future reference. The present legendary civil rights activist Morris Bar Journal publishes scholarly discourses, commen - Seligman Dees, Jr., Esq., as the plenary speaker. tary on the law and Bar activities, and articles on the administration of justice. While the Journal is a serious Born in Shorter, Alabama, the son of farmers, after magazine, our articles are not dull or somber. We strive a successful career in book publishing, in 1971, he to publish a topical, thought-provoking magazine that and his Montgomery, Alabama law partner Joseph addresses issues of interest to significant segments of the Bar. We aim to publish a magazine that is read, J. Levin, Jr. and civil rights activist Julian Bond quoted and retained. The Bar Journal encourages the founded the Southern Poverty Law Center, a non- free expression of ideas by Rhode Island Bar members. profit organization dedicated to seeking justice. The Bar Journal assumes no responsibility for opinions, statements and facts in signed articles, except to the Morris Dees, Co-Founder of Through the Southern Poverty Law Center, Dees extent that, by publication, the subject matter merits attention. The opinions expressed in editorials represent the Southern Poverty Law uses the law like a sword in his battle against preju - dice and hatred. In the 1980s and ’90s, he bank - the views of at least two-thirds of the Editorial Board, Center and they are not the official view of the Rhode Island rupted the Ku Klux Klan and neo-Nazi groups with Bar Association. Letters to the Editors are welcome. a series of historic lawsuits. Today, he focuses his attention on anti-government Article Selection Criteria militias. In his book, Gathering Storm: America’s Militia Threat , Dees explains • The Rhode Island Bar Journal gives primary prefer - the dangers these groups represent. He is also author of A Lawyer’s Journey , an ence to original articles, written expressly for first publication in the Bar Journal , by members of the autobiography, and Hate on Trial: The Case Against America’s Most Dangerous Rhode Island Bar Association. The Bar Journal does Neo-Nazi . not accept unsolicited articles from individuals who The subject of the television movie Line of Fire and portrayed in the feature are not members of the Rhode Island Bar Association. Articles previously appearing in other publications film Ghosts of the Mississippi , Dees has received numerous awards in conjunc - are not accepted. tion with his work at the Center. Trial Lawyers for Public Justice named him • All submitted articles are subject to the Journal’s Trial Lawyer of the Year in 1987, and he received the Martin Luther King Jr. editors’ approval, and they reserve the right to edit or reject any articles and article titles submitted for Memorial Award from the National Education Association in 1990. The publication. American Bar Association gave him its Young Lawyers Distinguished Service • Selection for publication is based on the article’s Award, and the American Civil Liberties Union honored Dees with its Roger relevance to our readers, determined by content and timeliness. Articles appealing to the widest range of Baldwin Award. Colleges and universities have recognized his accomplishments interests are particularly appreciated. However, com - with honorary degrees, and the University of Alabama gave Dees its mentaries dealing with more specific areas of law are Humanitarian Award in 1993. In 2001, the National Education Association given equally serious consideration. • Preferred format includes: a clearly presented state - selected Dees as recipient of its Friend of Education Award, its highest award, ment of purpose and/or thesis in the introduction; for his “exemplary contributions to education, tolerance and civil rights .” supporting evidence or arguments in the body; and In addition to this distinguished guest speaker, the Rhode Island Bar Associa- a summary conclusion. • Citations conform to the Uniform System of Citation tion’s 2011 Annual Meeting features a wide range of exceptional Continuing • Maximum article size is approximately 3,500 words. Legal Education seminars, the Bar’s Annual Award winners, a diverse group of However, shorter articles are preferred. law-related product and service providers, and many opportunities to connect • While authors may be asked to edit articles them - selves, the editors reserve the right to edit pieces for with your colleagues. Please watch your mail and the Bar’s website for your legal size, presentation and grammar. invitation to attend this excellent event. • Articles are accepted for review on a rolling basis. Meeting the criteria noted above does not guarantee publication. Articles are selected and published at the discretion of the editors. • Submissions are preferred in a Microsoft Word for - 127 Dorrance S treet mat emailed as an attachment or on disc. Hard copy is acceptable, but not recommended. All Inclusive Class A Office Space • Authors are asked to include an identification of their current legal position and a photograph, (headshot) preferably in a jpg file of, at least, 350 d.p.i., with Absolutely beautiful Multiple individual offices Full service offices include their article submission. professional office available in different Utilities, Receptionist, Heat, Direct inquiries and send articles and author’s space located at sizes. Large Conference Electric, Cox Internet, Copier photographs for publication consideration to: Rhode Island Bar Journal Editor Frederick D. Massie 127 Dorrance Street, room with library and and Fax. Rents range from email: fmassie @ribar.com Providence (Directly Palladian windows. $475 month to $950 month telephone: 40 1-421-5740 next door to the Interior glass windows (all inclusive) depending on Material published in the Rhode Island Bar Journal Garrahy Courthouse). throughout office. size of office. remains the property of the Journal , and the author (4 01 ) 580-4 511 consents to the rights of the Rhode Island Bar Journal to copyright the work.
6 May/June 2011 Rhode Island Bar Journal sure of personal matters”), and Nixon v. Administrator of General Services , 433 U.S. 425, 457, 97 S.Ct. 2777, 53 World-Renowned Author and Psychiatrist L.Ed.2d 867 (1977) (quoting the above phrase from Whalen ). With no Dr. Peter Kramer Featured at Supreme Court guidance except this Annual Meeting Seminar opaque fragment, the courts of appeals have been left to develop the contours of this free-floating privacy guarantee on their own. It’s a bit like building a dinosaur from a jawbone or a skull Dr. Peter Kramer will join Rhode Island Bar Association fragment, and the result looks more President Lise Iwon and the Bar’s Lawyers Helping like a turducken. We have a grab-bag Lawyers Committee Chair Nicholas Long in a discussion of cases on specific issues, but no the - about legal ethics and depression at the Bar Association’s ory as to what this right (if it exists) Annual Meeting. The seminar is on Thursday, June 16th, is all about. The result in each case from 10:45 until 12:00, with 1.5 ethics CLE credits. seems to turn more on instinct than Lawyers suffer from depression at much higher rates on any overarching principle .14 than the general public. While depression obviously To the extent that this dissent was harms the individual lawyer who is suffering from it, the viewed by Judge Kozinski as an invitation disease also produces considerable fallout, affecting part - to the Supreme Court to review this doc - ners, clients, and family members. Although depression is a medical condition trine ,15 and, upon review clarify it, that like cancer, with physiological as well as emotional impacts, Dr. Kramer believes invitation has only been accepted in part. that both the medical profession and society as a whole often fail to take depres - While the Supreme Court accepted the sion seriously and even romanticize it. As a result, he argues, millions of people invitation to look at the case, there was are suffering unnecessarily. At the seminar, Dr. Kramer will discuss lawyers’ not much clearing of the thicket. Here ethical responsibilities to themselves, their clients regarding depression-related is the opening of Justice Alito’s majority issues, and how to promote timely diagnosis and treatment of the disease. opinion: A best-selling author of six books, many scientific papers, short fiction, essays, In two cases decided more than 30 and a blog on Psychology Today , Dr. Kramer is also a practicing psychiatrist in years ago, this Court referred broadly Providence and a professor at Brown University Medical School. He was former - to a constitutional privacy “interest in ly the host of the public radio program The Infinite Mind . Perhaps his most avoiding disclosure of personal mat - celebrated book is Against Depression , about which the novelist Joyce Carol ters .” Whalen v. Roe , 429 U.S. 589, Oates wrote: “Peter Kramer is an analyst of exceptional sensitivity and insight. 599-600 (1977); Nixon v. To read his prose on virtually any subject is to be provoked, enthralled, and Administrator of General Services , illuminated .” 433 U.S. 425, 457 (1977). Respondents O, The Oprah Magazine noted, “By turns poetic and academic, and always in this case, federal contract employees deeply felt, [Kramer’s] book is a polemic against a society that accepts depression at a Government laboratory, claim as a fact of life .” that two parts of a standard employ - This Annual Meeting seminar is brought to you by the Bar’s Lawyers ment background investigation violate Helping Lawyers Committee. their rights under Whalen and Nixon . Respondents challenge a section of a form questionnaire that asks employ - ees about treatment or counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employees’ designat - ed references. We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon . We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case .16 The case goes on to hold that the safe - guards against disclosure of the informa - tion thus gathered, and the reasonable need to gather such information, satisfy
Rhode Island Bar Journal May/June 2011 7 the demands of any such right to infor - that a right deeply rooted in our histo - discuss such a right. It certainly seems mational privacy as might exist, and that ry and tradition bars the Government clear that there is not the robust support judicial modesty argues against deciding from ensuring that the Hubble for this concept as is found in some other the constitutional question needlessly. Telescope is not used by recovering parts of the country. That modesty was met with a rebuke, drug addicts .18 The First Circuit reviewed the field, in the form of a strongly-worded concur - So, the most we can say is that the in the context of a claim for qualified rence by Justice Scalia, in which Justice Court declined to declare unequivocally immunity in a § 1983 case, in Borucki v. Thomas joined, saying that the Court that such a right exists, and avoided elim - Ryan ,21 where the court found there was should have reached the question and inating the right definitively. 19 Several cir - no “clearly established” right to informa - answered it negatively. With a fitting cuits have well-established lines of cases tional privacy such as would remove the (dis)regard to what had recently been supporting the existence of a constitu - cloak of qualified immunity. That deci - derided as “empathy ,” 17 Justice Scalia tional right of informational privacy. 20 sion, in turn, mentions an earlier decision derides what he calls: The law in the First Circuit is less clear, by Judge Pettine 22 that alludes, in a foot - [T]he farcical nature of a contention as there are relatively few cases here that note, to growing support for a right of informational privacy. Neither decision expressly finds such a right, nor do they foreclose its existence. The circuit court was somewhat stronger in Vega- PELLCORP INVESTIGATIVE GROUP, LLC Rodriguez v. Puerto Rico Telephone Compan y,23 involving video, but not audio, surveillance of an open area of Private Investigations a workplace. The employees sued, alleging, inter alia , a violation of their right to privacy. Edward F. Pelletier III, CEO The district court dismissed the com - plaint, and the appeals court affirmed. (401) 965-9745 While affirming the trial court, the www.pellcorpinvestigativegroup.com appeals court nevertheless recognized the existence of a constitutional right of pri - vacy, albeit a narrowly circumscribed one. The court distinguished between a privacy right as it relates to personal autonomy in making certain personal decisions, and another right relating to Employee Benefits Law confidentiality of private matters. The court found that neither of these rights was implicated in video surveillance of Retirement Plans and Executive Compensation public areas in a workplace. Importantly, though, the court’s recognition of “ensur - ing the confidentiality of personal mat - ters ,” 24 citing Whalen and Borucki , was Edward M. McElroy not in any way hedged as being hypothet - ical or assumed for the sake of judicial Member of the Rhode Island Bar modesty. In fact, the First Circuit, in a later case, cited Vega-Rodriguez approv - McElroy Law Group, APC ingly in support of a narrowly drawn right “prohibiting profligate disclosure 4660 La Jolla Village Drive, Suite 500 of medical, financial, and other intimately San Diego, CA 9 2122 personal data .” 25 The Rhode Island Supreme Court Telephone: 858.625.46 70 appears not to have directly addressed Facsimile: 866.24 3.3264 the existence of a constitutional right to informational privacy, 26 though there has Email: emcelroy @mcelroylawgroup.net been some law regarding Rhode Island’s statutory right to privacy, as well as refer - Designing Innovative Retirement Plans to Businesses Nationwide ence to a more general right of privacy. 27 The Court has explicitly held there is no San Diego and Chicago Offices tort-based common law right of privacy, and any such right needs to be created by the legislature .28 The Court has recog -
8 May/June 2011 Rhode Island Bar Journal nized a privacy interest, in terms of dis - sions when counsel may instruct a witness not to 9 2004 Homeland Security Presidential Directive covery, in certain confidential informa - answer: (a) to preserve a privilege; (b) to enforce a #12 court-ordered limitation on evidence, or; (c) to 10 According to footnote 5 in the majority opin - tion, particularly financial information .29 present a motion for a protective order. ion, the Acting Solicitor General asserted at oral It is not axiomatic that a constitution - 4 “A Practical Guide to Discovery & Depositions argument that the government would make no al right (if indeed there is one here) must in Rhode Island” MCLE, Inc. 2010, § 9.3, p.9-9 to use of the suitability matrix in making contractor give rise to a correlative evidentiary privi - 9-11 credentialing decisions. lege. The United States Supreme Court 5 R.I. Gen. Laws § 4-12-13 11 http://hspd12jpl.org/ 6 R.I. Gen. Laws § 44-11-21 12 Nelson v. National Aeronautics and Space has held, for example, that the First 7 National Aeronautics and Space Administration , et al, 506 F.3d 713 (9th Cir. 2007) Amendment right to a free press does not Administration, et al v. Nelson , et al., 562 U.S. (“Nelson I”) give rise to an evidentiary privilege that _____ (2011) decided January 19, 2011, (Alito, J.) 13 Nelson v. National Aeronautics and Space would shield discovery regarding editori - 8 This recitation of facts is derived largely from Administration , et al, 568 F.3d 1028 (9TH Cir. al decision-making .30 Of course, the dif - the Ninth Circuit’s opinion in Nelson v. National 2009) (“Nelson III”) Aeronautics and Space Administration , et al, 530 14 Nelson III at 1052 ference here is that the informational F.3d 865 (9th Cir. 2008). (“Nelson II”) privilege, if it exists, protects precisely continued on page 40 the revelation of that which is sought to be uncovered, as compared with the editorial privilege, which would have protected pre-publication discussions about potential stories, a matter which is Please visit the ABA Retirement Funds Booth at the upcoming Rhode Island distinct from the right to freely publish Bar Association Annual Meeting for a stories about public figures. Thus, there free cost comparison and plan is a strong argument for a finding of evaluation. privilege for informational privacy should June 16, 2011 Rhode Island Convention Center, this issue be litigated here. Providence, RI The point is that courts often, and rightly, focus on the right of the inquiring party to obtain information ,31 sometimes to the point of asking counsel for those who resist the inquiry what basis there • Is your firm’s 401(k) subject to quarterly is for withholding that which is being WHO’S reviews by an independent board of directors? sought. This article contends there ought WATCHING • Does it include professional investment to be some consistent balancing of that fiduciary services? right against a person’s right not to dis - YOUR FIRM’S • Is your firm’s 401(k) subject to 23 contracted close that which is private. Those rights service standards? are not surrendered simply through being 401(k)? • Does it have an investment menu with passive a party to a lawsuit, and those rights are and active investment strategies? widely recognized as having a constitu - • Is your firm’s 401(k) sponsor a not-for-profit tional dimension. whose purpose is to deliver a member benefit? Discovery is sometimes derided as a • Does it feature no out-of-pocket fees to your firm? mere fishing expedition where counsel • Is your firm’s 401(k) part of the member probes at will for, it sometimes seems, the benefit package of 37 state and national bar mere pleasure of the chase (or sometimes, associations? perhaps, hoping to gain advantage from If you answered no to any of these questions, the discomfit thus inflicted). The better contact the ABA Retirement Funds to learn how view may be that discovery ought to be to keep a close watch over your 401(k). a fishing expedition in that a wronged party needs to thoroughly explore the adverse party’s records and recollections to uncover evidence in support of the Unique 401(k) Plans for Law Firms claim of wrong, as well as allowing one Phone: (877) 947-2272 • Web: www.abaretirement.com accused of such wrong latitude to assess • email: [email protected] the validity and severity of the claim. It The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the might be better to say that courts, and prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement skillful advocacy, require that you only Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their drop your net where you have reason to employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement think the fish are .32 Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such ENDNOTES offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.The Program is available through the Rhode Island Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in 1 Super. R. Civ. P. 26(b)(1) no way a recommendation with respect to, any security that is available through the Program. 2 Kelvey v. Coughlin , 625 A.2d 775 (R.I. 1993) C09-1005-035 (07/10) 3 In fact, Super. R. Civ. 30(d)(1) offers three occa -
Rhode Island Bar Journal May/June 2011 9 Bar’s Public Services Receives $20,000 Grant in Support of US Armed Forces Service Project
Michael A. Cooper, President of the Board Past Bar President Victoria M. Almeida, US Armed Forces Legal Services Project of Trustees of the American College of and launched in late 2009, the US Armed Trial Lawyers Foundation, announced the Forces Legal Services Project, an effort of The following Bar members have generously award of $20,000 to the Rhode Island Bar the Rhode Island Bar Associations Public volunteered their time and legal expertise Association's United States Armed Forces Services Department, is specifically- to the Bar’s nationally-recognized US Armed Legal Services Project. Brought to the designed to provide those serving in the Forces Legal Services Project: Foundation’s attention by the College’s military and their families with legal Emil Gumpert Award Committee, the assistance. Coordinated with the Alan M. Barnes, Esq. Foundation determined that although Attorney-Advisor at the Office of the Armando E. Batastini, Esq. the Project, one of only three finalists Staff Judge Advocate, volunteer attorneys David N. Bazar, Esq. for the Gumpert Award, did not win the directly represent military personnel by Renee M. Bevilacqua, Esq. Gumpert, it is deserving of Foundation accepting civil law cases including family Andrew R. Bilodeau, Esq. recognition and financial support. The law, probate issues, landlord/tenant, real John L. Calcagni, III, Esq. Bar will use the $20,000 grant to further estate, contracts, consumer, bankruptcy, Jennifer L. Caputi, Esq. the goals of the Project and publicize the collections, employment, immigration/ Patrick Carroll, Esq. Project to other states. naturalization, and income tax issues. Joseph P. Casale, Esq. Unique to Rhode Island, initiated by Robert V. Chisholm, Esq. Gerard P. Cobleigh, Esq. Peter P. D’Amico, Esq. Susan L.B. Darnell, Esq. Bar’s US Armed Forces Legal Services Project Program Statistics William J. Delaney, Esq. Gerald C. DeMaria, Esq. Volunteer attorneys to-date: 55 Priscilla Facha DiMaio, Esq. First case placed: August 18, 2009 Stefanie DiMaio-Larivee, Esq. Cases placed: 141 Kathleen G. DiMuro, Esq. Christine J. Engustian, Esq. Case types Cases per military branch Patrick A. Fayle, Esq. Veterans Benefits – 8 Army – 16 Air Force – 4 William E. George, Esq. Consumer – 36 RI Guard – 73 Coast Guard – 5 Humberta M. Goncalves-Babbitt, Esq. Family Law – 58 Navy – 17 War Veterans – 19 Jane B. Gurzenda, Esq. Probate – 19 Marines – 7 Kevin A. Hackman, Esq. Other – 20 William A. Hardman III, Esq.
We Want You For The Armed Forces Legal Services Project! The Rhode Island Bar Association’s United States Legal Services Project needs volunteers to answer the call. To join, please contact the Bar’s Public Services Director Susan Fontaine by telephone: 401-421-7722 or email: sfontaine @ribar.com.
10 May/June 2011 Rhode Island Bar Journal Bar Member and National Guard Captain’s Praise for Armed Services Legal Project Volunteer Attorneys
Patrick O. Hayes Jr., Esq. Christopher D. Healey, Esq. Bernard P. Healy, Esq. Patrick F. Hess, Esq. Carly B. Iafrate, Esq. Richard H. James, Esq. nd friends, Vicky a t they help Suzanne C. Jardin, Esq. rds. Know tha t and kind wo r W. Parish Lentz, Esq. r the suppor ommunity fo ou so much fo friends, and c Thank y ve my family, the Donna S. Madden, Esq. prepare to lea g forward to endously as I , I am lookin John Nathan Mansella, Esq. me trem ittedly, though going oyment. Adm nment. I am Michael K. Marran, Esq. ear-long depl lenging enviro my y tion in a chal S. Army Frederic A. Marzilli, Esq. serve our Na ing by our U. pportunity to terrific train o unit and some Mary Ellen McQueeney-Lally, Esq. y experienced with a ver f Timothy J. Morgan, Esq. eral’s Corps. ed support o dvocate Gen r your continu John T. Mulcahy, Esq. Judge A nd the Bar fo s Legal o thank you a Armed Force Anthony F. Muri, Esq. I also want t rough the US ommunity th ne of the and military c ur state has o Donald J. Nasif, Esq. the Rhode Isl ctive, while o r some perspe with 2,200 Amy Page Oberg, Esq. roject. Just fo (no surprise) Services P in the country st every Paul J. Panichas, Esq. ional Guards ita) than almo est Army Nat ften (per cap Paul P. Pederzani III, Esq. small deploy more o uthwest e and still do obilized in So roops, we hav re currently m d- Michael S. Pezzullo, Esq. t 83 Soldiers a months (inclu . Right now, 4 the next few Charles A. Pisaturo Jr., Esq. other state ut the door in ns. 4 are going o ar of operatio Vincent J. Rinaldi, Esq. nd another 37 in the 10th ye Asia a . And we are loyment Raymond M. Ripple, Esq. ple of weeks!) our third dep g me in a cou rigade), this is Kyle Rocha, Esq. in tary Police B (the 43d Mili For my unit ruly Roger C. Ross, Esq. 1. you provide t first) since 9/1 legal services Elizabeth Tanner, Esq. (but my al tempo, the arm’s way d of operation eading into h Elliot Taubman, Esq. With this kin ssues before h solving legal i they have to Dawn M. Vigue Thurston r mission. Re cus on what ssist us in ou so they can fo a eace of mind en our troops K. Erik Wallin, Esq. ldiers with p u provide wh provides so he services yo re for fe. Similarly, t as they prepa ome home sa lifts a burden do to c ransition and e of what elp with the t is fully awar back home h our leadership are se know that fforts are not ilization. Plea for it. Your e the next mob very thankful In February, the Rhode Island Bar t us and are ing to suppor you are do at! ward Association’s Public Services and romise you th us. I look for unnoticed, I p ns so much to Continuing Legal Education Programs going doing. It mea what you are sponsored “Custody and Support Keep doing ou in 2012! Issues In Relocation Cases: Doesn’t to rejoining y anybody stay in one place anymore?” in This CLE was offered, free of charge, Michael P. Jol to 46 attorneys from the Bar’s CPT, JA Volunteer Lawyer Program and the Trial Counsel US Armed Forces Legal Services e Brigade Military Polic Project, who accepted a pro bono 43d rmory family law case. Seminar speakers Warwick A (l-r): Peter Sangiovanni, Jr., Esq.; Hon. Stephen J. Capineri; Lt. Col. Vivian Caruolo; Janet Gilligan, Esq.; Deborah M. Tate, Esq.; and Kevin D. Tighe, Esq.
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12 May/June 2011 Rhode Island Bar Journal Oh, Atlanta! American Bar Association Delegate Report: ABA Mid-Year Meeting
The American Bar Association (ABA) Mid-year The film has particular relevance today in light Meeting in Atlanta, Georgia was eventful and of the government’s war on terror and how enjoyable. The two-day event was filled with civil liberties can be abridged in a time of war. many programs and included the House of While there is little free time at these meet - Delegates deliberations. We were addressed by ings, I always try and fit in a volunteer oppor - the ABA ’s first Hispanic-American President, tunity to mentor young lawyers or law students Steve Zack, a member of the Florida Bar who, either by participating as a judge in national at a young age, was a Cuban émigré. Zack mediation or advocacy competitions held in recalled being held in a Miami immigration conjunction with the ABA ’s meetings. This year, detention center and his gratitude for a new I was able to assist young law students from the life in the United States, a land of immigrants. ABA ’s Law Student Division. I consider giving Attorney Zack is particularly well suited to lead back to these students a duty and a pleasure. Robert D. Oster, Esq. the ABA at a time when immigration reform The Delegates were called upon to vote on ABA Delegate and Past and enforcement are at the top of federal, state a variety of issues which directly affect the Rhode Island Bar and local agendas. prac tice of law. First, a resolution was passed Association President The House of Delegates was addressed by opposing proposed cuts in funding for the Legal Congressman John Lewis, the son of sharecrop - Services Corporation. Low income individuals pers and a leader in the Civil Rights movement seeking access to justice are more numerous than who recalled his over 40 incarcerations for civil available services. As Interim President of Rhode disobedience to racist laws. He inspired us all Island Legal Services (RILS) Board of Directors, …reminders were by his life story and exhorted us to remember I attest to those needs. On a related note, I suc - we are all of “one house” regardless of our ceeded Judge Walter Stone whose many years of particularly many differences. Later in the evening, he trav - work and dedication as RILS Board President is appropriate in eled back to Washington, D.C. to receive the worthy of the Rhode Island Bar Association’s Presidential Freedom Medal at the White House. and the community’s admiration. Atlanta, the home Chief Justice Wallace Jefferson, of Texas, the Several resolutions of interest to the criminal of the Martin President of the Conference of Chief Justices, bar were on the agenda, particularly the obliga - told the House of his familys’ inability to find tion to comply with discovery under Brady v. Luther King a hotel that would accept an African American Maryland , 373 U.S. 83 (1963), concerning fed - Center, the Jimmy family in Texas in the 1950s, even though his eral guidelines regarding sentencing of white father was a member of the armed forces. collar defendants and pretrial detention orders. Carter Center, All of these addresses above brought tears The Family Law Section proposed a resolu - Sherman’s March and chills to me, as they are stories of inspira - tion on bullying, both cyberbullying and youth- tion to succeed in the law despite walls of to-youth sexual and physical harassment and during the Civil hatred and bigotry based on race or ethnicity. supporting education programs to assist in These reminders were particularly appropriate reducing this antisocial behavior. War and a one- in Atlanta, the home of the Martin Luther King A perennial favorite, a collaborative law res - time bastion of Center, the Jimmy Carter Center, Sherman’s olution, reviewed in my November/December March during the Civil War and a one-time 2010 Bar Journal ABA Report, was withdrawn segregation and bastion of segregation and the Confederacy. to be refined and resubmitted at a later date. the Confederacy. The Delegates were treated to a sneak pre - A resolution passed requiring civic education view of the latest Robert Redford film, The in lower, middle and upper public schools. A Conspirator , soon to be publically-released. myriad of other resolutions dealing with gun con - I encourage Bar members to see a great actor’s trol, uniform state laws, patent law and other and film director’s take on the Lincoln assassi - areas of specialized practice were proposed. nation story. Any of us who has represented an As always, I am honored to serve as the unpopular defendant in a criminal proceeding Rhode Island Bar Association’s ABA Delegate, will identify with the attorney who represented and I welcome Bar members comments or an alleged co-conspirator of John Wilkes Booth. suggestions regarding my representation. O
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14 May/June 2011 Rhode Island Bar Journal Just a Wingman? Rhode Island’s Special Purpose Local Education Agency
Though it may be somewhat of a surprise to the language of a statute is clear and unambigu - many who do not practice education law, school ous, [it] must [interpreted]…literally and…the districts in Rhode Island have found it difficult words of the statute [should be given their] to determine responsibility for the provision of plain and ordinary meanings .” 8 If the language educational services to resident children. This is unambiguous on its face, the analysis should difficulty exists even though Rhode Island law not go any farther to discern legislative intent. 9 provides that the city or town where a child It is an equally well-settled principle that resides must make special education services “statutes relating to the same subject matter available to that child .1 In fact, and most likely should be considered together so that they will due to the current economic environment, the harmonize with each other and be consistent” growing trend within the State is for districts with their general objective scope .10 Essentially, Bryan W. Hudson, Esq. to renounce provision of educational services Rhode Island statutory construction involves a Rhode Island Bar to children educated at the Rhode Island School “practice of construing and applying apparently Association Member for the Deaf (RISD) . In doing so, the districts inconsistent statutory provisions in such a man - relied on Rhode Island General laws § 16-26- ner so as to avoid the inconsistency .” 11 3.1(2) that provides RISD “[shall] be operated With Rhode Island’s method of statutory as a local education agency (LEA) .” 2 In relying interpretation in mind, and given that the lan - on this portion of the law, the districts argue guage does not appear ambiguous, the plain that the language effectively absolves them of or literal meaning should be given to the terms responsibility for a child enrolled at RISD of § 16-26-3.1(2). The language of the statute … school districts because it is an equal LE A3 under federal and reads RISD ’s “[board] of trustees shall have the in Rhode Island state law. powers and duties of a school committee .” 12 Regrettably, other provisions found within The term “have” in this particular statute have found it diffi - state law and the Individuals with Disabilities appears to mean: “possess or be provided with cult to determine Education Act (IDEA) as well as the Rhode Island (a quality, characteristic or feature) .” 13 By impli - Regulations of the Board of Regents Governing cation, the RISD ’s board of trustees would not responsibility for the Education of Children with Disabilities (R.I. “possess” the powers or duties of a school the provision of Regulations) eclectically complicate the other - committee but for the language of the statute wise straightforward analysis. Moreover, the provided by the General Assembly. As this is th e educational services Rhode Island Department of Education (RIDE) case, it appears that the legislative intent was to resident children. recently offered an opinion concerning RISD – to provide RISD ’s board of trustees with the as an atypical concomitant LEA – in K.K. v. distinctive “quality, characteristics or features” Rhode Island School for the Deaf .4 of a school committee. However, RISD ’s board of trustees merely RISD operated as as a LEA having the “qualities, characteristic or features” As mentioned above, Rhode Island law pro - of a school committee does not necessarily mean vides that RISD “[shall] be operated as a [ LEA ] that it is a school committee. At first glance, it and shall be governed by a board of trustees .” 5 appears that had the General Assembly meant In addition, RISD ’s “[board] of trustees shall to legislatively turn RISD ’s board of trustees have the powers and duties of a school commit - into a school committee, it would have utilized tee .” 6 This language appears unequivocal, yet more definitive language rather than merely two questions remain. First, taking into consid - provide the board of trustees with characteris - eration the statutory construction, does RISD ’s tics or features of a school committee. This will “operation as” a LEA mean that it is a LEA ? become evident when other statutes are read in And second, does “[having] the power and conjunction with this language because, as dis - duties of a school committee” mean that RISD ’s cussed below, if the General Assembly had “board of trustees” is a “school committee”? 7 intended that RISD ’s board of trustees actually In Rhode Island, “It is well settled that when was a school committee, it seems plausible that
Rhode Island Bar Journal May/June 2011 15 it would not have withheld many of the powers that school committees possess in the State. 14 As for RISD ’s “[operation] as a [LEA ],” 15 the language in and of itself appears to be unambiguous as well. Again, application of the plain meaning to the language of the statute gives us the same conclusion as above. The General Assembly chose to include the language “operate as” instead of other readily available and definitive language. So, it appears that RISD is “managed or run” as an LEA rather than it being an LEA 1.6
What is the Rhode Island School for the Deaf? Prior to delving into the statutory lan - guage that confounds § 16-26-3.1(2), a discussion about RIDE and RISD ’s gover - nance is appropriate. The Board of Regents is constituted under the General Laws as a “public corporation .” 17 The State of Rhode Island statutorily “entrust - ed [it with] control of elementary and Workers’ Compensation secondary education institutions and functions” as well as”[invested it] with the legal title (in trust for the state) to all Injured at Work? property, real and personal, now owned by and/or under the control or in the custody of the board of regents for edu - Accepting referrals for workers’ cation for the use of the department of elementary and secondary education .” 18 compensation matters. The Board of Regents is also successor to “[all] powers, rights, duties, and privi - leges pertaining to elementary and sec - ondary education .19 And, the Board of Call Stephen J. Dennis Today! Regents cannot “engage in the operation or administration of any subordinate 1-888-634 -1543 or 1-40 1-453 -1355 committee, local school district, school, school service, or school program, except its own department of elementary and sec - ondary education, and except as specifi - cally authorized by an act of the general assembly .” 20 In addition, the Board of Regents “[maintains] a department of elementary and secondary education, [provides] for its staffing and organiza - tion and [appoints] a commissioner of Off ice Spac e Avai lable elementary and secondary education pur - suant to § 16-60-6 who shall serve at its Within Existing Law Office pleasure .21 Furthermore, the Regents have the power to: AMENITIES CONTACT “establish other educational agencies or subcommittees necessary or desir - Recepti on ist • Con feren ce Room s Jim G old man able for the conduct of any or all Copi er • Park ing 51 Jeffer son Bou levar d aspects of elementary and secondary Se cre tar ial S tati on s • F ili ng C abi ne ts War wic k, Rho de Isl an d education and to determine all pow - Grea t Lo cati on 401 -781 -4200, ex t. 11 ers, functions, and composition of any agencies or subcommittees and to dis -
16 May/June 2011 Rhode Island Bar Journal solve them when their purpose shall have been fulfilled; provided that nothing contained in this subdivision shall be construed to grant the regents Providence Valuation , LLC the power to establish subcommittees business appraisal and consulting or agencies performing the duties and functions of local school committees except as provided in § 16-1-10 .” 22 Though the RISD ’s board of trustees has many of the powers of a school com - business valuations mittee, many powers are “[reserved to] the commissioner of elementary and lost profits studies secondary education, and the board of regents for elementary and secondary fractional interest education… .” 23 For instance, the Board of Regents and the Commissioner pro - discount analyses vide parameters for RISD ’s budget requests, recommends a budget, and par - asset recovery ticipates in budget development. 24 The Board of Regents does not have similar intangible asset school committee budgetary authority in the several towns and cities throughout valuation the State. Instead, the Board of Regents John “Jay” Candon specifically cannot “engage in the opera - lost earnings studies CPA, ABV, ASA, CFE, CFF tion or administration” of local school districts without an act of the General 1750 Ministerial Rd 25 business acquisitions Assembly. But, the Regents do have the South Kingstown, RI 02879 explicit authority to “[carry] out the pro - and sales 401.714.4099 visions of [§ 16-26]” and to “[make] any rules and regulations governing the oper - www.providencevaluation.com ation of [ RISD ] that may be required .” 26 In fact, the General Assembly expressly Providence Valuation is dedicated – 20 years business valuation experience delegated the Board of Regents more powers and duties than enumerated else - to providing the highest quality of – Recognized as an expert by the U.S. Tax where in the General Laws in conjunction objective and confidential services Court, Federal Courts and State Courts 27 with RISD . to our clients, small and medium – Certified Public Accountant Even though the Regents have broad rule and regulation authority when it sized enterprises and high net – Accredited in Business Valuation comes to the governance of RISD , the worth individuals in the greater – Accredited Senior Appraiser Regents cannot provide RISD ’s Board of Rhode Island area, in the most Trustees with “the duties and functions” – Former Chief Financial Officer of a of a school committee .28 While “school economical way. commercial bank committees” have the “entire care, con - trol and management” of public school interests of its city or town, the legisla - ture specifically withheld certain duties and powers from RISD ’s Board of Trustees .29 For instance, the Board of Regents, not RISD , establishes strategic directions for the education of deaf and BALSOFIORE & COMPANY, LTD. hard of hearing children in the state of Rhode Island .30 And, “school committee” FINANCIAL INVESTIGATIONS members are typically elected either annually or biennially, 31 while members FORENSIC ACCOUNTING LITIGATION SUPPORT of RISD ’s Board of Trustees are appointed FINANCIAL PROFILES OF INDIVIDUALS AND BUSINESSES by the Board of Regents .32 LOCATE PEOPLE – ASSET SEARCHES In sum, a careful review of Rhode Island law illustrates a public corporate Brian C. Balsofiore, CFE [email protected] structure that provides that RISD is nei - Certified Fraud Examiner (401) 486-7145 ther wholly a LEA nor is its board of RI Licensed Private Detective
Rhode Island Bar Journal May/June 2011 17 trustees wholly a school committee. Essentially, RISD is a conundrum. It appears that it is a political subdivision of the Board of Regents with the charac - YYoou wwaant it. teristics of a LEA that the General Assembly expressly allows the Regents WWee have it. to administer and control .33 Let us (possibly) complicate this Guardian Disability Income Insurance discussion further 10% discount to RI Bar Members To further complicate the analysis, RISD may also be considered an educa - tional placement and/or an education As a legal professionasional, you may have begun to thinknk you'd never be able service agency (ESA) under federal law. to find the kindd off high-quality disability income coc verage you need. Though educational placement is not Coverage that includes: defined in IDEA , the United States Department of Education has comment - efit paayments when you can't work at youour own occupation - ed. Specifically, a placement refers to the even if you can work at another one “provision of special education and relat - -cancellablellable and guarantteed renewwabblle tto age 65 ed services rather than a specific place .” 34 verr off premiums during disability benefit period Essentially, students have their Individual Education Program’s (IEP) developed by If this sounnds like the kind of disability protection you've been ORRNLQJ IRU DQG \RX¶G OLNH WR GLVFXVV \RXU RSWLRQV RU MXVW OHDUQ a LEA and then are placed at a location more about it, please call: to implement provision of the enumerat - ed special education and related services. Robbert J. Gallagher & Associates, Inc. This analysis becomes important when A Reprreseesentative of Guardiann it is viewed in light of RISD not being a Robert J. Gallagher, Jr., CLU, CChFC mandatory educational setting – students Ageg nt are not required to attend under Rhode P.O. Box 154467 Island law. The language of Title 16 Riverside, RI 02915 Chapter 26 provides that if a child’s 401-431-0837 impairments make it impracticable for rrjgiggs@[email protected] the student to make progress toward his or her educational goals in a public school, he or she “may attend” RISD “without charge .” 35 This is contrary to the Rhode Island compulsory attendance laws which provide that children “shall regularly attend” a public school in the city or town where the child resides .36 In Disability income products underwritten and issued by Berkshire Life Insurance Company of America, Pittsfield, MA a wholly owned stock subsidiary of other words, LEA s send children to RISD The Guardian Life insurance Company of America, (Guardian) New York, NY. for an education in lieu of providing the Products not available in all states. Product provisions and features may very from state to state services themselves. Though “placement” has no IDEA definition, LEA is defined. LEA is defined as: “a public board of education or other public authority legally constituted DAVI DW. DUMAS within [Rhode Island] for either administrative control or direction of, or to perform service function for, public or secondary schools in a city, , county, township, school district or other political subdivision of the State or a combination of school districts or - counties as are recognized in the State as an administrative agency for its -- public elementary or secondary schools .37 LEA includes: “educational service
18 May/June 2011 Rhode Island Bar Journal agencies” and “any other public institu - tion or agency having administrative con - trol and direction of a public elementary YOUR or secondary school, including public non-profit charter school that is estab - lished as an LEA under State law .” 38 An CONNECTICUT ESA is defined as a regional public multi- CONNECTION service agency, authorized by state law to develop, manage and provide services or programs to LEA s, and recognized as an administrative agency for purposes of the provision of special education and related services provided within public elemen - tary and secondary schools of the state .39 The term ESA includes “any public insti - tution or agency having administrative control and direction over a public 40 elementary school . M ESSIER & MASSAD • COUNSELORS ATLAW Under the first part of the definition of LEA , based on the analysis above, Gregory P. Massad* Alan R. Messier Jeffrey C. Ankrom Jason B. Burdick RISD appears to fall short as an LEA . Specifically, RISD does not have “control or direction of, or performs service func - *Licensed in Rhode Island Only tions for,…public or secondary schools in a city, county, township, school district AREAS OF PRACTICE: or other political subdivision of the Warwick • Personal Injury 41 State…” RISD , as mentioned above, Real Estate • Hartford appears to be, in an off itself, a political West Greenwich Bankruptcy subdivision of an administrative agency office • Norwich Wills & Probate of the State managed as a LEA . Therefore, Family Law RISD is not “recognized ,” legally or other - New London Landlord & Tenant wise, as an administrative agency and office • Westerly DUI falls short of the second half of the Collections definition. Business Formation However, the definition of LEA also Commercial Litigation includes ESA and “other public institu - tions or agencies .” 42 These ESA s are con - Connecticut State & Federal Courts sidered to “[have] full responsibilities and Connecticut Trial Lawyers Association right as LEA s.”43 When RISD is viewed in Rhode Island Association for Justice light of the ESA definition, a much more RIBA Volunteer Lawyer Program convoluted analysis evolves. First, there RIBA Lawyers Helping Lawyers Committee can be little argument that RISD is pub - lic, as it receives public financing through 21 Huntington Street New London, Connecticut 06320 860.443.7014 RIDE and the Board of Regents and under 16 Nooseneck Hill Road W. Greenwich, RI 02817 401.385.3877 both the purview of the Board of Regents and RIDE . Second, it is evident that RISD does have “administrative control and direction over a public elementary school .” 44 Whether RISD is also an institution, however, requires analysis of the term. Institution is not defined under the IDEA or the RI Regulations, and there - fore should be given its plain meaning. Institution is defined as “a society or 109 Larchmont Road organization founded for religious, edu - Warwick, Rhode Island 02886 cational, social or similar purpose” or Tel: 4 01- 439-9023 “an organization providing residential
continued on page 42
Rhode Island Bar Journal May/June 2011 19 10 Weybosset Street, Suite 205 • Providence, RI 02903 Tel: (401) 455-3500 Fax: (401) 455-0648
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Wills/Trusts
Estate Tax Planning
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The R.I. Supreme Court Licenses all lawyers in the general practice of law. The court does not license or certify any lawyer as an expert or specialist in any field of practice.
20 May/June 2011 Rhode Island Bar Journal Who Represents You in a Rhode Island Real Estate Closing? Real Estate Attorneys’ Liabilities after Groff
Disciplinary counsel inquired, “Dave, exactly lender and my office, the funds finally arrived, who are you representing in this closing?” but not before I had made a call to Disciplinary Counsel to ask about my next possible course Without hesitation, I responded, “Well, the of action. Disciplinary Counsel’s inquiry (see bank (of course) .” above) as to whom I represent deeply concerned “Not so fast, counselor…I think you need to me. It was not for the matter at hand, but, read Groff before you can say that …” rather, how I would operate going forward. What had appeared to be a quarrel between My breathing stopped for a few seconds upon client and attorney (the lender and myself), now hearing that statement. placed me at odds instead with the borrower, Perhaps I should back up a bit… and all the implications that it conjures. David M. Dolbashian, Esq. What is it about Groff that should make a Law Office of David M. The Groff decision ( Credit Union Central real estate attorney worry? Historically, most Dolbashian, Esq. P.C., Falls v. Groff , 2009 RI 966 A.2d 1262 (RI Sup closing attorneys considered the lender their Providence Ct, 2009)) was decided February, in 2009. The client. The lender traditionally dictated the essential holding of Groff is that a settlement actions of the attorney, and the instructions attorney actually represents the borrower in a delivered with most closing packages had direc - bank-financed, real estate closing and possibly tives followed without deviation. In short, the owes duties to other non-client parties as well .1 lender appeared to control the attorney. Or so Those other parties, such as a lender, are now we once thought. Historically, most considered “third party beneficiaries” to the After Groff , it is now the borrower whom closing attorneys contractual agreement between the borrower the attorney represents. The difference may and closing attorney. 2 It is a shift of the com - appear to be a nuance, but the fiduciary duties considered the monly-held understanding that will sweep that such a shift places upon a closing attorney lender their client. through the bar of Rhode Island real estate can wreak havoc with how one approaches title attorneys. issues, questions from borrowers, dealings with In short, the In my situation, what appeared to be a lenders, and, most importantly, disbursements lender appeared to normal, garden-variety closing developed into of monies from these closings. a problem when the lender failed to wire the The travel of Groff initially appears compli - control the attor - settlement proceeds to my account in a timely cated, but it is not. Attorney Lawrence Groff ney. Or so we manner. The situation was considerably tighter acted as a settlement agent for a number of due to the fact that the prior lien to be paid was loans from Credit Union Central Falls (CUCF) , once thought. for an Federal Housing Administration (FHA) now known as Navigant Credit Union. Allega- loan which required an additional month’s tions were leveled against Attorney Groff by worth of interest (and not a standard per diem two borrowers in two separate closings. interest amount) if the payoff were to be Allegedly, Groff did not pay previously encum - received after the first day of the next month. bered liens for those individual borrower’s The borrower could not (and should not have properties which were to be paid via the pro - had to) produce any such an additional amount. ceeds of the new loans (as identified in the The lack of funds from the lender severely settlement statements of the loans). The title threatened my office’s ability to assure a fully insurer, Mortgage Guarantee, as a result of the paid lien. My concern was that, without full title policies written by Groff, were obliged to payment, the borrower would still have an provide the payoffs to assure the insured lender, active amount on the loan, accumulating inter - CUCF , they would be in first position. Mortgage est, and the new bank would not be in first Guarantee then filed suit against their former position as the title policy I issued would have agent, Groff, for reimbursement. CUCF also guaranteed. After the exchange of strained and sued Attorney Groff for malpractice. As a demanding emails back and forth between the result, Attorney Groff’s escrow account was
Rhode Island Bar Journal May/June 2011 21 frozen by court order. Mortgage Guarantee’s claim was that the amounts IfIf yyouyourour cclientlient nneedseedsds aann in Groff’s fund should be granted to eexpertxperrtt bubusinessusiness vvavaluation…aluuaaattion… them since they had made CUCF whole. Mortgage Guarantee’s claim was based ccallall iinn a realreal eexpert.xperrtt. upon the fact that they had placed CUCF OverOver 22,500,55000 accurate,accurate, iindependentndependent andand defendabledefendable valuationsvaluations providedprovided sincesince in first position by paying the liens left thethe earlyearly 1980s.1980s. DecadesDecades ofof experienceexperience inin bothboth benchbench andand juryjury trials.trials. open by Attorney Groff. Ergo, they claimed the proceeds in Groff’s escrow rightfully belonged to them. LeoLeo J.J. DDeLisi,eLisi, Jr.,Jr., The complication of this case developed ASA,ASA, MMCBA,CBA, ABARABAR with an action commenced by another client of Groff. That client was utilizing Attorney Groff in a probate matter, and she alleged she had furnished a large AccreditedAccredited SeniorSenior AppraiserAppraiser amount of money to Groff under false MasterMaster CertifiedCertified BusinessBusiness AppraiserAppraiser pretense and wanted her money returned. AAccreditedccredited iinn BBusinessusiness AppraisalAppraisal ReviewReview Since the court had placed a hold upon FFellow,ellow, AAmericanmerican CCollegeollege ooff ForensicForensic ExaminersExaminers Groff’s escrow, the probate client chose VValuingaluing BusinessesBusinesses sincesince 19841984 to intervene in the real estate suit so that her assets in that escrow account could be protected. www.DeLisiAndGhee.comwww.DeLisiAndGhee.com In discovery, the probate client sought to elicit communications between Groff and CUCF and also between Groff and 989989 ReservoirReservovoir AAvAvenuevenue BUSINESSBUSINESS VVAVALUATIONSALUAATTIONS Cranston,Cr anston, RRII 0029102910 the borrowers. Groff claimed those com - AARERE AALLLL WWEE DDO.O. AALLLL DDAY.AAYY. 401.944.0900401.944.0900 munications were protected by the attor - [email protected]@DeLisiAndGhee.com EVERYDAY.EVERYDAY.. ney-client privilege and not subject to discovery. The case eventually found its way to the Rhode Island Supreme Court, seeking to clarify exactly who Attorney Groff represented, and subsequent to that determination, what, if any, of those com - RH ODE ISLAND munications were truly protected. How- ever, the resulting decision was somewhat PRIVATE DETECTIVES LLC broader than that narrow question. In Groff , the Court wrestled with a An Agency of Former Law Enforcement Investigators number of factors, including the relation - ship Groff had with CUCF , being one of a select few attorneys permitted to close FBI Special Agents their loans, as well as the written direc - tions from CUCF that Groff was required IRS Special Agents to follow. 3 Another factor the Court con - sidered was the client’s ability to choose Police Detectives who may be used as the Title Attorney for the transaction .4 What the Court finally appeared to have settled on is, quite simply, who paid the bills for the Criminal Investigations legal work and whether the borrowers Due Diligence and Personal Background Investigations accepted the specific attorney. 5 The Court Litigation Support Service pointed to the fact that since the borrower White Collar Crime would be responsible for paying for the attorney fees, title examination, and the lender’s title insurance (even though the Henry Roy Senior Partner Napoleon “Nappy” Brito Managing Partner title insurance would be only a benefit to the lender), the Court found the attorney- One Richmond Square Suite 125B (401) 421-5705 / FAX (401) 421-5701 client relationship was formed between Providence, Rhode Island 02906 www.riprivatedetectives.com the borrower and attorney. 6 Habla Español How then was a bank such as CUCF , now without an attorney-client relation -
22 May/June 2011 Rhode Island Bar Journal ship, able to sue Groff for malpractice if they were not his client? The Court stated that the bank was a “third party benefici - Call us today to learn how our qualified business valuators have helped clients with: ary” to the contractual agreement of the • Mergers/acquisitions • Divorce asset allocation borrower and attorney. The rationaliza - • Business purchase/sale • Adequacy of insurance tion was that the borrower required a loan from the bank and the bank • Succession planning or • Litigation support required a number of legal actions per - buy/sell agreements • Financing formed to assure security. The attorney, • Estate and gift taxes • Mediation and arbitration acting for the borrower, would assure that those actions were done to satisfy the lender in order to induce them to loan the money. 7 Want a qualifed, expert What appears missing from the facts, as it probably is in most real estate trans - business valuation? actions, was any sort of retainer agree - ment. The documents signed by the Count on us. borrowers indicated that, even though the borrowers could have chosen their own title attorney, they chose to allow the bank to choose one for them .8 The Court is silent as to what the result would have been had the borrowers cho - sen an attorney not approved by CUCF . However, the result is unlikely altered by that variation. If the rationale is that the William J. Piccerelli, CPA, CVA N John M. Mathias, CPA, CVA N Kevin Papa, CPA, CVA attorney is acting for the ultimate benefit 144 Westminster Street, Providence, RI 02903 N 401-831-0200 N pgco.com of the client borrower, the approval of a bank may not preclude the attorney’s duties to both the client (the borrower) and the third party beneficiary (the bank). It is likely that the third party beneficiary theory would apply to any attorney based upon the direct benefit derived by the transaction, even if that Immigration Lawyer attorney was not an approved or pre - ferred attorney of the lender. The Court’s decision may have a far- Joan Mathieu reaching effect outside of the scope of Call me if your legal advice may real estate. The decision may open attor - affect your clients’ immigration status. neys to new liabilities to potential third Protect yourself and your client party beneficiaries in other matters if, as the Court highlighted, those benefits were a direct result of the transaction .9 401-4 21-0 911 In other fields of practice, such as estate planning, the potential liability of an We practice only US Immigration Law with 15 years experience in attorney may now be heightened. However, there is little doubt that this • IRCA. 1- 9, no-match advice • Minimizing adverse immigration decision certainly places a burden upon for US employers consequences of crimes the real estate practitioner in very real • Foreign Investor, business • Deportation/removal and specific ways. and family visas • All areas of immigration law – If the Court’s ruling is a blanket state - • Visas for health care professionals referrals welcome ment that the client is the borrower, what • Visas for artists and entertainers happens next? Assume a borrower is sit - ting at a table alone with an attorney, Member and past CFL chapter president of the American Immigration signing paper work for a refinance, and Lawyers Association. BU Law and MPA Harvard Graduate. asks a bit of legal advice about the loan. Full resume on my web site www.immigrators.com In the past, attorneys often rested on the comfort of not owing a duty to a non- Law offices of Joan Mathieu, 248 Waterman Street, Providence, RI 02906 client. Many, uneasy about expressing
Rhode Island Bar Journal May/June 2011 23 any opinion (and possibly angering their perceived client, the bank), could easily say (as they believed) that they were rep - RICHARD S. resenting the lender and avoid expressing any legal opinion. Now, that may have to change. What if a closing occurs that subsequently devolves into a contentious UM PHREY matter between the lender and the bor - H rower? What position, if any, will the closing attorney have to take if the attor - LAW OFF ICES ney was, and had always been, the repre - sentative of the borrower? Additionally, how muddy will the waters now be since Richard S. Humphrey the attorney may also owe a fiduciary duty to the lender? Stefanie A. Murphy After Groff was decided in Rhode Erin B. McKenna Island, other states began to address dual representations in the context of real Christina Dzierzek estate closings ( see Marsh v. Wallace from the Mississippi Federal Court, citing that attorneys need to clearly indicate DUI / Refusal whom they represent to all parties in DUI / Serious Bodily Injury real estate closings per their Rules of 10 DUI / Death Resulting Professional Conduct ). Since the Court in Groff did not address what effect a 401-62 4- 61 52 pre-emptive disclosure by an attorney www.richardhumphreylaw.com may have, it still may be murky as to whether a disclosure that would counter the assumption of representation that Groff imposes would clarify the situation. Additionally, the recent problems sur - rounding errors in foreclosure actions in other states should give Rhode Island attorneys pause as to their true or per - ceived role at any real estate closing. Dietel & Associates Since a third party beneficiary now places additional liabilities upon the Medical-Legal Consulting attorney, the answer may hold many more problems for the practi tioner, especially ones who do not address the We help attorneys win their cases! actual representation issue up-front. Groff may now impact situations that I Screen or investigate cases for merit. involve potentially confidential communi - I Locate and interface with expert witnesses. cations. What if the borrower asks advice I Define deviations from and adherences to the applicable or reveals a fact about a potential title standards of care. problem on the property in the middle I Develop written reports for use as study tools by the of, before, or after the closing? Revealing that defect to the bank could violate the attorney. attorney-client privilege. Not revealing I Many other cost effective services. I Lisa Dietel a known defect could place the attorney Risk free guarantee. RN, BSN, JD, CLNC subject to problems with the third party I 21 years of nursing experience combined with a legal beneficiary, the bank. Lastly, what duties education provides a unique perspective to identify does a closing attorney have toward a medically related legal issues. pro se seller in a conveyance closing? What if a deed is prepared to facilitate I A free case screening for all new attorney clients the conveyance and an error is made? Does the attorney have duties to both I 401-480 -1 796 • LisaDietel @aol.com buyer and seller? Groff can easily extend DietelMedicalLegalConsulting.com to mean that now the sellers are also third party beneficiaries.
24 May/June 2011 Rhode Island Bar Journal …Not so fast, counselor. Those old assumptions may no longer apply.
ENDNOTES SOCIAL SECURITY DISABILITY 1 Credit Union Central Falls V. Groff , 2009 RI 966 A.2d 1262 (RI Sup Ct, 2009). 2 Groff , 1274-75 MEDICAL MALPRACTICE 3 Groff , 1269-70 4 Groff , 1273 Donna M. Nesselbush 5 Groff , 1274 Joseph P. Marasco 6 Groff , 1274 7 Groff , 1274 Mariam A. Lavoie 8 Groff , 1270 Joseph P. Wilson 9 Groff , 1272-3 Mark H. Grimm 10 Marsh V. Wallace , 666 F.Supp.2d 651 Jennifer L. Belanger (S.D.Miss. 2009). O Paul E. Dorsey William Elderkin, Jr. A. Chace Wessling Timothy P. Lynch Patrick S. Cannon Attorney Referrals Welcome Publish and Prosper in t he WWW.M-N-LAW.COM Rhode Island Bar Journal
The Rhode Island Bar Journal is one of the Bar Association’s best means of sharing your knowledge and experience with your colleagues. Every year, attorney authors offer information and wisdom, through You know financial planning. scholarly articles, commentaries, book reviews, and profiles, to over We know philanthropy. 6,000 subscribers in Rhode Island and around the United States. In Talk about a win-win. addition to sharing valuable in- sights, authors are recognized by readers as authorities in their field The Rhode Island Foundation has been a charitable and, in many cases, receive Contin- planning resource for attorneys and professional uing Legal Education (CLE) credit for their published pieces . The Bar advisors for more than 90 years. Find out how we can Journal ’s Article Selection Criteria help you provide a full range of charitable tools appear on page 4 of every Bar that offer maximum benefits to your clients. Journal and on the Bar’s website at www.ribar.com. Aspiring authors and previous contributors are encouraged to contact the Rhode Island Bar 401.427.4044 Journal ’s Editor Frederick Massie www.rifoundation.org by telephone: (401) 421-5740 or email: fmassie @ribar.com .
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May 3 Practical Skills Seminar May 26 Food for Thought Tuesday Domestic Law Practice in RI Thursday The Warning Signs of Fraud RI Law Center, Providence RI Law Center, Providence 9:00 a.m. – 3:00 p.m. 12:45 p.m. – 1:45 p.m. 4.0 credits + 1.0 ethics 1.0 credit May 5 Food for Thought June 3 Practical Skills Seminar Thursday When the Bed Bugs Bite Friday Workers’ Compensation Practice in RI RI Law Center, Providence RI Law Center, Providence 12:45 p.m. – 1:45 p.m. 9:00 a.m. – 3:00 p.m. 1.0 credit 4.0 credits +1.0 ethics May 10 Food for Thought June 8 Food for Thought Tuesday When the Bed Bugs Bite Wednesday The Warning Signs of Fraud Casey’s Restaurant, Wakefield Holiday Inn Express, Middletown 12:45 p.m. – 1:45 p.m. 12:45 p.m. – 1:45 p.m. 1.0 credit 1.0 credit May 12 Food for Thought Thursday The Top Ten Client Complaints RI Law Center, Providence 12:45 p.m. – 1:45 p.m. 1.0 ethics SAVE THE DATES May 18 Food for Thought Rhode Island Wednesday The Top Ten Client Complains Holiday Inn Express, Middletown Bar Association 12:45 p.m. – 1:45 p.m. 1.0 ethics Annual Meeting May 19 Food for Thought Thursday Withdrawing From Representation RI Law Center, Providence June 16 & 17, 2011 12:45 p.m. – 1:45 p.m. 1.0 ethics Featuring over May 20 A Primer on Bankruptcy Practice 40 excellent CLE Friday and Procedure Seminars and more! A VLP Seminar co-sponsored with the United States Bankruptcy Court Rhode Island RI Law Center, Providence 1:00 p.m. – 4:30 p.m. Convention Center 3.5 credits + .5 ethics May 24 Food for Thought Reminder : Bar members may complete three credits through Tuesday Withdrawing From Representation participation in online CLE seminars. To register for an Casey’s Restaurant, Wakefield online seminar, go to the Bar’s website: www.ribar.com 12:45 p.m. – 1:45 p.m. and click on CONTINUING LEGAL EDUCATION in the 1.0 ethics left side menu.
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28 May/June 2011 Rhode Island Bar Journal Beyond the Bar All in The Family : Musical Musings on Mobsters
It’s no secret that people are fascinated by crim - about them would clear up many of the mis - inal enterprises. Clearly, this has helped drive the conceptions .” success of television series like The Sopranos , Arlene and Enrico started working on The The Wire , Boardwalk Empire , and the locally- Family in 2008. The musical’s storyline contains filmed Brotherhood . While some characters familiar themes, particularly for those who are created by producers, others are inspired have watched any of the aforementioned cable by real people, adding to the excitement. television shows. According to Arlene ,” the The Famil y, a musical written by Rhode Godfather is worried about his succession since Island Bar Association member Arlene M. his son is reluctant to take over the Mob family, Violet, Esq. of Arlene Violet & and there are signs that the One thing that Law Associates, in Barrington, Commission wants him replaced. collaborating with composer/ The son wants to pursue his separates Arlene’s lyricist Enrico Garzilli, gives us own interests and has his own story from similarly- a glimpse into Rhode Island’s family problems. One of the own crime scene, and, in such mob guys goes into witness pro - themed shows is a small state, the people the tection, and his proposed testi - that the content is characters are based on may mony against the Godfather has be hauntingly familiar to many ramifications for his own family. based on her own of us. These respective family prob - experiences as Arlene was a Sister of Mercy lems converge in the climax of for twenty-three years, and, for the show .” One thing that sepa - Attorney General. ten of those years, she doubled rates Arlene’s story from similar - She notes, “for as a public interest attorney. ly-themed shows is that the con - “My interest in law grew during tent is based on her own experi - example, we have my service in the inner city. ences as Attorney General. She an induction scene Folks used to tell me that certain notes, “for example, we have an things couldn’t be done for poor induction scene of a made man of a made man families and elderly folks that is verbatim from a wiretap that is verbatim because the law was against it. I wanted to find of Raymond Patriarca’s ceremony .” out if this were true, and if so, how to change The Family isn’t Arlene’s first published from a wiretap of it .” A Boston College Law School graduate, she account of her experiences as Attorney General. Raymond Patriarca’s was the first lawyer for the Conservation Law In 1988, Random House published her book, Foundation and also served as the lawyer for Convictions , and in 2010, she authored a second ceremon y.” the Rhode Island Protection and Advocacy book, The Mob and Me , in collaboration with System. former US Marshal John Partington. Arlene However, to many, Arlene is known for her hopes her play will move on to other places term as Rhode Island’s Attorney General. While after its Providence run. She notes, “Producers serving there, she addressed victim’s rights and who expressed an interest in the show will be set up a victim’s unit. She also tackled public invited to attend, since they wanted to see it on corruption, focusing on abuses at Rhode Island its legs .” The Family runs this year from June Housing & Mortgage Finance Corporation 2nd until July 1st at Trinity Repertory Theatre (RIHMFC) and on entities like the now infa - in Providence. Tickets can be ordered on their mous Rhode Island Share & Deposit Indemnity website at www.trinityrep.com. O Corporation (RISDIC) . Arlene also investigated organized crime .“Organized crime was a joint federal and state focus. It was this experience of talking with so-called ‘made men’ and protected witnesses that led me to think that a story
Rhode Island Bar Journal May/June 2011 29 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.
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30 May/June 2011 Rhode Island Bar Journal The Origins Of The Governor’s Pardoning Power
The legislative request, sponsored by Newport math of the nativistic furor generated by the representative Peter Martin, for Governor equal rights provisions of Dorr’s aborted Lincoln Chafee to pardon John Gordon, an People’s Constitution, this remedy would only Irish-American immigrant, hanged in February have delayed the inevitable. 1845 for the murder of textile magnate Amasa When Gordon was executed in the yard of Sprague, may attract state and national atten - the old state prison (where Providence Place tion. There is a certain irony to this developing Mall now stands), Thomas Dorr was an inmate, scenario, ignited by writer Ken Dooley’s locally- having been convicted of treason against the produced play covering this issue, because state in a Rhode Island Supreme Court trial and the pardoning power now wielded by the sentenced to life imprisonment “at hard labor governor in Article IX, Section 13 of the State in separate confinement” by Chief Justice Job Patrick T. Conley, Esq. Constitution was conferred upon him in 1854 Durfee, the same partisan judge who had con - Rhode Island Bar Journal by the same group of reformist legislators who demned John Gordon to death. Fortunately for Editorial Board abolished the death penalty in 1852. I contend Dorr, a grassroots liberation movement resulted that both actions, by so-called Dorr Democrats, in his release, but not his pardon, after twenty were made with John Gordon’s execution in months in prison. mind. The memory of Gordon certainly was In the Presidential election of 1844, national the foremost concern of those who voted for Democrats used the slogan “Polk, Dallas, and the death penalty ban. The convictions of John Dorr” to dramatize the liberation effort. In Gordon and Thomas Wilson Dorr inspired these Rhode Island, Charles Jackson, great-grandson The convictions of same legislators to propose a constitutional of an Irish Protestant immigrant from Kilkenny, John Gordon and mechanism for pardoning a person unjustly led a Dorr Liberation slate to victory in the convicted of a crime. April 1845 annual state election. During this Thomas Wilson Under the Royal Charter of 1663, the gover - campaign, many vote-less Rhode Island women Dorr inspired nor was a mere executive agent of the General joined the cause. As a result of these combined Assembly. The charter was replaced in 1843 by efforts and a national outcry against Durfee’s these same legisla - the conservative Law and Order Constitution in harsh sentence, Dorr was freed on June 27, 1845. tors to propose a the wake of the Dorr Rebellion. Drafted mainly However, even with the liberation, the domi - by Whigs, who feared executive power (as did nant Law and Order coalition of Whigs and constitutional their English namesakes), the new constitution rural Democrats maintained its control of state mechanism for kept that branch of government in a weakened government during the late 1840s electing condition. However, the governor did receive Providence Journal editor and arch-nativist pardoning a per - the “power to grant reprieves, after conviction, Henry Bowen Anthony governor in 1849 and son unjustly con - in all cases, except those of impeachment, until 1850. Then, as the Whig Party began to divide the end of the next session of the General over the issue of slavery and some rural Rhode victed of a crime. Assembly .” That provision is Article IX, Section Island Democrats returned to the fold, 4 of our present Constitution. Democratic reformers, led by Dorr’s uncle In February 1845, when Gordon was hanged Philip Allen, came to power in 1851 with Allen after a conviction based upon conflicting and winning the governorship and. Dorr’s closest circumstantial evidence, in a trial marred by the friend, Walter S. Burges, securing the post of anti-Irish Catholic animus of the press and the attorney general, chief legal advisor to the rulings and jury charge of a highly-prejudicial General Assembly. judge, Law and Order governor James Fenner The momentum of this victory prompted refused the request for a reprieve presented to pro-Dorr legislators to enact the state’s first him by Gordon’s lawyers (all of whom were secret ballot law for the prevention of voter associates and colleagues of Thomas Wilson intimidation and to pass a resolution restoring Dorr). Of course, a reprieve is only a tempo - Dorr’s political rights. Then, in 1852, they rary postponement, and, in the immediate after - responded to a forty-three page report by South
Rhode Island Bar Journal May/June 2011 31 Kingstown’s Thomas Robinson Hazard and long-time Dorr ally Ariel Ballou of Cumberland and banned the death penal - ty. State representative Thomas Davis, a manufacturer and philanthropist, led the fight for that reform. A Dublin-born Irish Protestant immigrant, Davis later became a U.S. Congressman. These early reform measures were passed with some Whig support. However, in the state elections of April 1853, Gover- Structuring tax-defe rred exchanges nor Allen emerged victorious, and his throughout the U.S. fellow Democrats gained a majority in with Integrity and Expe rience both the House and the Senate for the first time since the 1830s. Emboldened by their victory, these reform Democrats Charles J. Ajootia n, Es q. twice called for the voters to authorize a President and Counsel constitutional convention to remedy what they considered to beR ghloardineg Idselafencdts’ sin leading Intermediary since 199 7. the Law and Order Constitution. Rhode Island’s leading Intermedia ry since 199 7. Ominously, these convention referenda were decisively rejected by the electorate. Because the Dorrites could not achieve sweeping reform in a convention, they drafted and approved nine constitutional amendments. Their proposed amendment four gave the governor the power to par - don. Under the provisions of the inflexible Law and Order Constitution, an amend - ment to that basic law needed passage by two successive General Assemblies, with a general election intervening, before it could be sent to the electors for approval by a three-fifths vote. Unfortunately, time ran out for the Dorr Democrats in the April 1854 annual WORKERS’ COMPENSATION state elections. Their alleged radicalism prompted rural Democratic voters to defect. By the end of the decade, these Revens, Revens & S t. Pierre small town electors were firmly attached to the newly-formed and nativistic Repub - lican Party. They responded to their urban Michael A. St. Pierre wing’s support of equal rights for Irish immigrants as Southern Democrats would respond to the push by the Northern 946 Ce nt erville Road wing of their party to obtain civil rights for Blacks a century later. They defected Warwick, RI 02886 to the opposition party. The other harbinger of defeat for the (4 01) 822 -2900 telephone reformist Democrats was the emergence in 1854 of the Know-Nothing or nativis - (4 01) 82 6-3245 facsimile tic American Party. This brief movement mikesp @rrspla w.com email won the allegiance of many native-born workingmen who had previously sup - ported political reform. In April 1854, the Democrats were ousted and relegated Attorney to Attorney Consultations/Referrals to a minority status they maintained until the so-called Bloodless Revolution of 1935. The first year since their 1854 defeat they were able to control the governorship
32 May/June 2011 Rhode Island Bar Journal and both houses of the General Assembly. Four of the nine amendments proposed by the outgoing Democratic legislature were rejected by the next General Assem- bly. Of the five that did pass, the voters approved three. The first, dealing with BANKRUPTCY the certification of voting lists; the sec - ond, vesting the pardoning power in the governor, with the advice and consent of Revens, Revens & S t. Pierre the senate; and a third, providing for one annual session of the General Assembly James E. Kelleher at Newport with its adjournment to Providence. This amendment effectively deprived Bristol, East Greenwich, and South Kingstown of their status as state 946 Ce nt erville Road capitals. Warwick, RI 02886 The adoption of the amendment allowing the governor to pardon (which is not the legal equivalent of exonerate) (4 01) 822 -2900 telephone had been deemed unlikely by the Dorr (4 01) 82 6-3245 facsimile Democrats. So, in early 1854, before suc - jamesk @rrsplaw.com email cumbing to the tidal wave of nativism, they passed an act reversing and annulling the judgment of the Rhode Island Supreme Court in Dorr’s treason trial. The suc - Attorney to Attorney Consultations/Referrals ceeding legislature promptly sought an advisory opinion from that court. Not surprisingly, it ruled that such an act was an unconstitutional infringement upon the judicial process. During the brief ascendancy of the Dorr Democrats, Henry Anthony’s Providence Journal warned against the dire conse - MARK A. PFEIFFER quences of removing the “safeguard” Alternative Dispute Resolution Services in the Law and Order Constitution that www.mapfeiffer.com required naturalized citizens to own real estate in order to vote or hold office (a Bringing over three decades of experience as a Superior Court restriction not contained in the People’s judge, financial services industry regulator, senior banking officer, Constitution). Anthony’s prediction – humorous now, but tragic then – was and private attorney to facilitate resolution of legal disputes. this: “Rhode Island will no longer be Rhode Island when that is done. It will ARBITRATION MEDIATION PRIVATE TRIAL become a province of Ireland: St. Patrick (4 01)78 7-6995 / [email protected] / 86 State Street, Bristol, R.I. 02809 will take the place of Roger Williams, and the shamrock will replace the anchor and Hope!” From such men as Anthony, Durfee, newly elected Know Nothing Governor William W. Hoppin, and those nativists Shared office environment for lawyers who came to power in April 1854, neither John Gordon nor Thomas Dorr could ex- pect either justice or mercy. The pardon - You can have a Calart Tower, Providence office ing process set in motion by the Dorr Democrats – a gesture more symbolic address for less than you spend on coffee than effectual in its application to Dorr (401) 467-7771, ext 12 • [email protected] and Gordo – has never been applied to either of its first intended recipients. Per - haps its time has finally arrived, because LawyerSelect Suites justice has no statute of limitations. at LawyersCollaborative® The Gordon Murder Trial is replete
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34 May/June 2011 Rhode Island Bar Journal with one-sided evidentiary rulings and prejudicial commentary by Chief Justice Job Durfee. However, history’s eviden - tiary criteria are different from those Why Outsource Legal Writing employed in the courtroom. “We have a right as citizens …” stated famed attorney and Research? and legal scholar Alan Dershowitz, “…to reject the verdicts of the court” whether Gain the fresh perspective an those are convictions (as in the case of outside attorney can bring to John Gordon) or acquittals (as in the Fall your case; River trial of Lizzie Borden) and decide the historical truth for ourselves. We must Provide a sounding board to help keep in mind, warns Dershowitz, of “the frame and narrow the issues; limited though important, role of the jury in Anglo-American law. Its verdict decides Weather the inevitable busy the case before it on the basis of the ad- times; and missible evidence. But it does not decide Avoid fixed overhead. Pay only for the historical truth .” The conviction of the time to complete the project John Gordon is an excellent example of a divergence between the verdict of a jury and the verdict of history. The latter demands an exoneration of John Gordon Law Offices of Maurene Souza as well as his symbolic pardon. 50 South Main Street Providence, RI 02903 For further information on this topic see: Patrick T. Conley’s article: Rhode 401 -27 7-9822 souzalaw @cox.net Island’s Crisis in Constitutionalism: The Licensed in Rhode Island and Massachusetts. Dorr Rebellion and the Origins of the Present State Constitution, in the Rhode Island Bar Journal’s October 1986 issue. O
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Rhode Island Bar Journal May/June 2011 35 36 May/June 2011 Rhode Island Bar Journal BOOK REVIEW Just Like Someone Without Mental Illness Only More So: A Memoir by Mark Vonnegut, M.D.
Author Mark Vonnegut, is the son of Kurt open draw bridge into Newark Bay. A day and Vonnegut, the noted novelist who gained a half later, Uncle Bill’s wife died of cancer. The prominence, and both critical and commercial sudden appearance of the orphans had a salu - success, with the publication of Slaughterhouse brious effect upon young Mark. His cousin Five in 1969. In addition to the literary merits Steve was three months older. Steve was popular of Slaughterhouse Five , Vonnegut tapped into and, in time, became a three-sport captain in the national mood of disenchantment and anger high school, as well as class president. Palling over the nation’s continued engagement in the around with Steve gave Mark the confidence, Vietnam War. That novel and the author took for the first time, to play sports himself and on iconic dimensions in the late 1960s, particu - to engage in social interaction with his contem - larly on college campuses, largely due to the poraries. Mark went through junior high, high Roger C. Ross, Esq. novel’s anti-war theme. Although Vonnegut was school, and college “like an unremarkable per - Practices in Pawtucket and a highly successful following the publication of son .” The operative word in that phrase is like . member of the Bar’s Lawyers Slaughterhouse Five , never again was his work He felt anything but unremarkable. He seems Helping Lawyers Committee to achieve the same level of critical or popular to have experienced his early life as a stranger acclaim. in a strange land, never quite fitting in. Mark Vonnegut is a practicing pediatrician Vonnegut matriculated at Swarthmore in a Boston suburb who, in an informal poll College where he had a rather undistinguished of nurses, was once voted the best pediatrician academic record, marked mostly by attaining in the area in Boston magazine. His was a very a 1.8 GPA in his math and science courses, sin - His was a very long and troubled road from an early diagnosis gularly ironic given his ultimate career choice. long and troubled of schizophrenia, shortly after graduating from During his undergraduate years, Vonnegut toyed Swarthmore College in 1969, to becoming a with the vague notion of enrolling in divinity road from an successful practicing physician. Vonnegut was school and joining the Unitarian church as a early diagnosis born and raised on Cape Cod. He writes that minister. He later abandoned this idea. “craziness runs in the family” and he “can trace After the Kent State tragedy in 1970, of schizophrenia, manic depression back several generations .” Vonnegut became disenchanted with contempo - shortly after From a very early age, Vonnegut felt he was rary society. He and a group of friends decided out of step with his contemporaries. When he to abandon the modern world and set off for graduating from was in elementary school, rarely did a day pass western Canada to establish a commune. They Swarthmore when he did not get into a fight with a school - were going to make a paradise of their universe mate. His father, who took a peculiar pride in or learn the reasons why it could not be done. College in 1969, his own avowed anti-social attitudes, was simi - During this period, Vonnegut notes he “went to becoming a larly proud that his son had no friends. At age crazy for the first time .” Voices in his mind 10, the author announced to his mother that he became louder and clearer. He suffered what successful practic - intended to kill himself. She dissuaded him by was to be the first of three quickly-successive ing physician. proclaiming that bright youngsters such as he episodes resulting in his admission to a were meant to save the world and that he, and Vancouver psychiatric hospital with the unlikely other like-minded kids, should at least give that name of Hollywood Hospital. While a patient, exalted objective a try before attempting some - he was treated with the standard practices of thing as permanent as suicide. the day, lithium and shock treatments, together In 1958, when Mark was eleven, “the with the peculiar favorite of one physician, orphans” came. That is the author’s term for mega-doses of vitamins. The last, alas, had little three, young cousins who came to live with the therapeutic or beneficial effect on the patient. Vonnegut family after the tragic deaths of their When asked during treatment, “Is the radio parents. Mark’s Uncle Bill was one of forty-eight or TV talking directly to you? ”, Vonnegut was passengers who died when their commuter train relieved to learn that someone finally knew ran several stop signals and dropped through an what was going on.
Rhode Island Bar Journal May/June 2011 37 While hospitalized, Vonnegut was diagnosed as suffering from schizophrenia, MEMBERSHIP BENEFIT UPDATE a catch-all diagnosis of the day encom - passing all measure of illnesses. Much later, such a diagnosis was made more Law Firm Retirement Solutions from standard, requiring medical history ele - ments that were absent in his case. What the American Bar Association Vonnegut actually suffers from is now known as bipolar disorder. After a month of hospitalization and One of the many benefits of your Rhode Island Bar intense treatment, Vonnegut began feeling reasonably well and was discharged. He Association membership is available through your Bar’s returned to his communal friends. Within two weeks, he began hearing the voices partnership with the American Bar Association (ABA) again. He muses, “I really did not know Retirement Funds Program. I was supposed to continue taking that medicine .” He was flown back to Vancouver and re-admitted to the hospi - tal. When finally discharged, Vonnegut The ABA Retirement Funds Program (the Program) was established over 45 years ago weighed 127 pounds and walked in a by the American Bar Association to meet the unique retirement needs of law firms. drug-induced shuffle. Yet somehow, he The Program brings together nearly 4,000 law firms and $3.5 billion in assets to pro - was feeling “normal .” vide your firm a retirement solution that offers a fund lineup and services traditionally Vonnegut returned to Massachusetts. He started working as a substitute only available to the larger corporate plans. teacher at a high school on the Cape. This leverage allows the Program to provide the following services bundled for your After a time, he decided he want to be firm at no out-of-pocket expense and include institutionally priced funds for your a doctor. So, the 25 year old substitute high school teacher, with a recent history participants: of psychiatric hospitalization, an under - » Investment fiduciary trustee and custodial services from Northern Trust, a leading graduate degree in Religion from a liberal global asset manager that serves 44% of the top 100 corporate plans arts college, and a 1.8 GPA in the hard sciences, enrolled in undergraduate math » Client service and recordkeeping from ING, one of the largest financial services and science course at the University of company in the world Massachusetts – Boston. During this same period, Vonnegut wrote The Eden Couple these benefits with the fiduciary oversight that the ABA Retirement Funds Express , his first book, recounting his Board provides over the entire program, and you have a retirement solution that may communal experiences and initial break - help you to hire and retain quality employees, control expenses and manage your down. He also had several articles pub - fiduciary responsibility. lished in national magazines during this time. To learn more about the Program and your many other Rhode Island Bar Association After two and a half years at UMass, benefits. Please go to the Bar’s web site at www.ribar.com , On the HOME page, click where he earned straight A’s, Vonnegut on FOR ATTORNEYS or FOR MEMBERS ONL Y, then click on MEMBER - applied to twenty medical schools. He SHIP BENEFITS and scroll down the listings. In addition to introductory copy, the was accepted by one, Harvard. In retro - Program and all other benefits listings feature web links providing Bar members with spect, Vonnegut is appropriately astound - ed that if only one medical school in detailed information and contacts. twenty was to accept him it was Harvard. By any objective measure, Vonnegut had a very successful early medical career. Upon finishing medical school, he was accepted for an internship at Massachusetts Request for RWU Law Review Articles: Rhode Island Bar Association attorneys General Hospital where he had done and judges are invited to submit articles for publication consideration in the some rotations during medical school. Roger Williams University Law Review’s Rhode Island Edition focusing on cur - He later completed a residency there. rent legal issues and developments within the state. Articles are generally 25-50 After completion of his senior residency, pages in length, using the Bluebook format for citations. Submissions are due Vonnegut entered a private pediatric no later than October 1, 2011. Please direct questions to Rhode Island Editor practice in Boston. During this period, of the Law Review Mariana Ormonde by telephone: 401-419-6495 or email: he became increasingly dependent on mormonde950 @g.rwu.edu. alcohol noting, “…maybe a few beers after work, half a bottle or less of wine
38 May/June 2011 Rhode Island Bar Journal with dinner, maybe a shot of bourbon after dinner .” He found nothing unusual about this quotidian consumption. “If Lawyers on the Move I had a drinking problem, I would have hidden it, but I didn’t so I didn’t ,” he rationalized. Together with the direct Victoria M. Almeida, Esq. , of Adler Pollock & Sheehan P.C. , and Past President effects of his drinking, the author’s denial of the Rhode Island Bar Association, received the Franciscan Friars of Holy mechanism was operating in full gear. Name Province’s Francis Medal. After more than fourteen years, the Kate Moran Carter, Esq. is now an Associate at Brennan, Dain, Le Ray, Wiest, voices returned and Vonnegut “went crazy Torpy & Garner, P.C. , 129 South Street, 3rd Floor, Boston, MA 02111. for the last time .” The internal dialogue 617-542-4800 www.bdlwtg.com picked up as if uninterrupted by the pas - sage of time. Acting on the urgings of the R.J. Connelly III, Esq. , principal attorney of Connelly Law Offices , was recently voices, Vonnegut made a full-throated sworn in as the newest member of the Stonington Commission on Aging. effort to launch himself through a closed Heather F. Daglieri, Esq. is now Administrator of Licensing for the RI window on the third floor of his home. Department of Behavioral Healthcare, Developmental Disabilities, and As the glass and wood framing of the Hospitals, 14 Harrington Road, Cranston, RI 02920. window fell harmlessly to the ground 401-462-0581 hdaglieri @bhddh.ri.gov below, the author rebounded to the floor of the bedroom. His act was compelled John K. Fulweiler, Esq. , an Admiralty attorney, has opened his law practice, by the certain knowledge that if he did Fulweiler llc , 150 Airport Street, 2d Floor, Quonset Point, RI 02852. not jump, his life would be viewed as a 401-667-0977 john @fulweilerlaw.com failure and at least one of his two sons Andrew M. Gilstein, Esq. , Kevin A. Hackman, Esq. and William J. Murphy, Esq. would die. were elected to the VNA of Care New England Board of Trustees. Some time after his discharge from a psychiatric hospital, Vonnegut met with Patrick A. Guida, Esq. , of Duffy & Sweeney, Ltd. , 1800 Financial Plaza, his partners and his psychiatrist to tenta - Providence, RI 02903, was recently elected to the American College of tively discuss his return to the practice. Commercial Finance Lawyers. It was a slow process. Five years later, his 401-455-0700 pguida @duffysweeney.com www.duffysweeney.com tenuous marriage dissolved. He has rein - Morphis A. Jamiel, Esq. was selected for the United States Department of the tegrated himself slowly as a social being Army’s Officer Candidate School Hall of Fame Class of 2011. and as a physician. Now, nearly twenty- five years from his last drink and his last Melissa Larsen, Esq. announced the opening of her law practice at the Meadows episode of “going crazy ,” Vonnegut Office Park, Unit A - 103, 1130 Ten Rod Road, North Kingstown, RI 02852. gained these essential insights: There was 401-218-0862 larsenlawri @gmail.com www.larsenlawri.com something wrong with him besides hear - Louise Marcus, Esq. was admitted to the U.S. Supreme Court Bar on February ing voices and jumping through win - 23, 2011. Marcus Law Offices , 33 College Hill Road, 15e, Warwick, RI 02886. dows; and, besides suffering from bipolar 401-331-3300 LMarcus @cox.net MarcusLawOffices.com disorder; besides drinking uncontrollably, “What was wrong with me was that I William P. Rampone, Esq. relocated his law practice to 317 Iron Horse Way, could not love or accept love .” He also Suite 203, Providence, RI 02908. learned that as hard as addiction is, “it’s 401-751-4400 always possible to change your perception Vincent Rinaldi, Esq. relocated his law office, Rinaldi Law Offices, LLC , to of the world from one where you do 2374 Post Road, Warwick, RI 02886. drugs and just about nothing good is 401-244-7725 vin @rinaldilaw.net www.rinaldilaw.net possible to one where you don’t do drugs and good things can happen .” Not too Jerome B. Spunt, Esq. , now in his 55th year at the bar, continues his solo law bad for an alcoholic, drug abusing, practice at 20 Randall Street, Apt. 4K, Providence, RI 02904. “crazy” person. O 401-274-4044 jspuntlaw @verizon.net
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.
Rhode Island Bar Journal May/June 2011 39 None of Your Damn Business Chief Justice John G. Roberts Jr. from great continued from page 9 justices. 18 Concurrence at p. 4. 19 The concurrences would have explicitly said 15 Liptak, Adam, THE TURDUCKEN APPROACH TO that there is no constitutional right to information - TITLE CLEARING PRIVACY LAW , The New York Times, December 8, ______al privacy, and Justice Thomas would have 2009: declared that there is no general right of privacy 15 The dissenter was Chief Judge Alex Kozinski under the constitution. It is beyond our present QUIETING TITLE of the United States Court of Appeals for the topic but worth noting that it is the general right Ninth Circuit, in San Francisco. He is a master of privacy that forms the basis of Roe v. ACTIONS of the dissent that might as well be a petition Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, for Supreme Court review of the majority’s (1973), which Justice Thomas says is a right that decision. This one, protesting his court’s refusal does not exist. to rehear a case about the privacy rights of 20 These are discussed at length in Nelson III, employees, said the law in that area had Roger C. Ross supra . become a tangled thicket. 21 827 F.2d 836 (1st Cir. 1987) 22 Natwig v. Webster , 562 F.Supp. 225 (D.R.I. “It’s time to clear the brush ,” Judge Kozinski 1983) wrote. “We didn’t undertake that chore today, Blais Cunningham 23 110 F.3d 174 (1st Cir. 1997) but we’ll have to sooner or later, unless” — 24 Id . at 183. & Crowe Chester, LLP nudge, nudge — “the Supreme Court should 25 Dickinson v. Chitwood , 181 F.3d 79 (1st Cir. intervene .” 1998) 16 Rescript at p.1 26 R.I. Gen. Laws § 9-1-28.1 150 Main Street 17 Recall the role “empathy” played in the recent 27 See, In re ADVISORY OPINION TO THE HOUSE confirmation hearings for Justice Sotomayor. See, Pawtucket RI 02860 OF REPRESENTATIVES BILL 85-H-7748., 519 A.2d e.g. , Liptak, Adam, S OTOMAYOR GUIDES COURT ’S 578 (R.I. 1987), holding that strict scrutiny must LIBERAL WING , The New York Times , December be applied to legislative enactments that limit or 27, 2010: TELEPHONE: (4 01 ) 723 -11 22 impinge “such implied constitutional guarantees 17 At her confirmation hearings last year, Sonia FAX: (4 01 ) 726- 6140 as the right to privacy, Roe v. Wade , 410 U.S. 113, Sotomayor spent a lot of time assuring senators 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147, 176- EMAIL: rross @blaislaw.com that empathy would play no part in her work 77 (1973) .” Id. at 581. on the Supreme Court. 28 Henry v. Cherry & Webb , 73 A. 97 (R.I. 1909). This is a fascinating decision, a thorough That was a sort of rebuke to President Obama, discussion of which is far beyond the scope of the who had said that empathy was precisely the present topic. The court examined the assertion quality that separated legal technicians like that the right to privacy was derived from natural
40 May/June 2011 Rhode Island Bar Journal law, in a way that would supercede common law ery of punitive damages. there is serious “concern about undue and or constitutional enactment. The court held that 30 Herbert v. Lando , 441 U.S. 153, 175 (1979): uncontrolled discovery .” Ante at 176. In view there is no enforceable effect of “natural law” and 30 Evidentiary privileges in litigation are not of the evident attention given discovery by the traces Rhode Island legal authority all the way to favored, and even those rooted in the District Judge in this case, it cannot be said the founding of our nation and beyond, to the Constitution must give way in proper circum - that the process here was “uncontrolled .” But British parliament. The court held: stances. The President, for example, does not it certainly was protracted, and undoubtedly 28 Since, therefore, except when expressly limit - have an absolute privilege against disclosure of was expensive for all concerned. ed, the General Assembly exercises all of the materials subpoenaed for a judicial proceeding. Under present Rules, the initial inquiry in legislative powers of sovereignty possessed by United States v. Nixon , 418 U.S. 683 (1974). enforcement of any discovery request is one of the British parliament, which is all-powerful , [Footnote omitted] relevance. Whatever standard may be appropri - and since acts of that body are tested merely 31 In Hickman v. Taylor , 329 U.S. 495, 501 ate in other types of cases, when a discovery by the principles of the Constitution, and never (1947), Justice Murphy wrote: demand arguably impinges on First by standard of transcendent rights alleged to 31 Thus, civil trials in the federal courts no longer Amendment rights, a district court should have been reserved by the individual when he need be carried on in the dark. The way is now measure the degree of relevance required in entered into society, there is no room in our clear, consistent with recognized privileges, for light of both the private needs of the parties constitutional theory for any transcendent the parties to obtain the fullest possible knowl - and the public concerns implicated. On the one right or instinct of nature except as guaranteed edge of the issues and facts before trial. hand, as this Court has repeatedly recognized, by that Constitution. Id. at 104. [Emphasis [Footnote omitted]. the solicitude for First Amendment rights evi - supplied] But see, Herbert v. Lando, supra , Powell, J. con - denced in our opinions reflects concern for the The court goes on at length to distinguish between curring: important public interest in a free flow of news that which is required by morality and that which 31 At the 1946 Term, just a few years after adop - and commentary. is imposed by law. Lest anyone think that this deci - tion of the Federal Rules of Civil Procedure, 441 U. S. at 179. [Footnotes omitted] sion has become stale, it was cited approvingly in this Court stated “that the deposition discovery 32 “A Practical Guide to Discovery & Depositions Pontbriand v. Sundlun , 699 A.2d 856 (R.I. 1997), rules are to be accorded a broad and liberal in Rhode Island” MCLE, Inc. 2010, § 10.3.2, p.10- in holding that a tort based privacy right is limited treatment .” Hickman v. Taylor , 329 U.S. 495, 12. O to that found in R.I. Gen. Laws § 9-1-28.1. 507 (1947). The bar and trial courts under - 29 See, e.g. , Palmisano v. Toth , 624 A.2d 314 (R.I. standably responded affirmatively. As the years 1993), holding that plaintiffs seeking punitive have passed, discovery techniques and tactics damages are not entitled to discovery regarding the have become a highly developed litigation art defendant’s financial condition until after the court — one not infrequently exploited to the disad - determines, as the result of an evidentiary hearing, vantage of justice. As the Court now recog - that there is a prima facie case meriting the recov - nizes, the situation has reached the point where
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We are here to help you. Richard Abrams, Esq. 351-5700 Brian Adae, Esq. 864-1705 Rhode Island Bar Association members and their families may receive confidential and Neville J. Bedford, Esq. 348-6723 free help, information, assessment and referral for personal challenges through the Bar’s Henry V. Boezi, III, Esq. 861-8080 contract with Resource International Employee Assistance Services (RIEAS) and through the David M. Campanella, Esq. 732-0100 members of the Bar Association’s Lawyers Helping Lawyers Committee. To discuss your Diana Degroof, Esq. 274-2652 concerns, or those you may have about a colleague, you may contact a Lawyers Helping Sonja L. Deyoe, Esq. 864-3244 Lawyers Committee member, or go directly to professionals at RIEAS who provide con - Kathleen G. DiMuro, Esq. 944-3110 fidential consultation for a wide range of personal concerns including but not limited to: Brian D. Fogarty, Esq. 821-9945 balancing work and family, depression, anxiety, domestic violence, childcare, eldercare, Jeffrey L. Koval, Esq. 885-8116 grief, career satisfaction, alcohol and substance abuse, and problem gambling. Nicholas Trott Long, Esq. 351-5070 When contacting Resource International Employee Assistance Services, please identify Genevieve M. Martin, Esq. 274-4400 yourself as a Rhode Island Bar Association member. A RIEAS Consultant will briefly discuss Dennis J. McCarten, Esq. 965-7795 your concerns to determine if your situation needs immediate attention. If not, initial appoint - Joseph R. Miller, Esq. 454-5000 ments are made within 24 to 48 hours at a location convenient to you. Please contact RIEAS Henri S. Monti, Esq. 467-2300 Suzette I. Pintard, Esq. 274-4400 by telephone: 401-732-9444 or toll-free: 1-800-445 -11 95. Roger C. Ross, Esq. 723-1122 Lawyers Helping Lawyers Committee members choose this volunteer assignment Adrienne G. Southgate, Esq. 301-7823 because they understand the issues and want to help you find answers and appropriate Deborah M. Tate, Esq. 351-7700 courses of action. Committee members listen to your concerns, share their experiences, and Judy Hoffman, LICSW, CEAP, RIEAS 732-9444 offer advice and support. or 800-445-1195
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Rhode Island Bar Journal May/June 2011 41 Just a wingman? continued from page 19
WORKERS’ COMPENSATION care for people with special needs .” 45 Organization, in turn, is defined as “an AND SOCIAL SECURITY organized body of people with a particu - lar purpose .” 46 Under these definitions, CONSULTATION RISD ’s Board of Trustees, which identifies the needs of deaf and hard of hearing and develops educational policies to meet ALBERT J. LEPORE, JR. those needs, appears to have been consti - tuted as a “body of people with an edu - cational purpose .” 47 Moreover, RISD is COIA & LEPORE, LTD. identified as an “institution” under Rhode 48 226 SOUTH MAIN STREET Island General Law. Therefore, it is log - ical to conclude that RISD may be an ESA PROVIDENCE, RI 02903 or “public institution” within the mean - 4 01- 751- 5522 ing of IDEA and the R.I. Regulations and thus has the “full responsibilities and 49 www.Coialepore.com rights” of a LEA .
A bird in the hand’s worth two in the Email: aleporej @coialepore.com bush: K.K. v. Rhode Island School for the Deaf As can be seen from the above analysis, Attorney-to -A ttorney Referrals this particular issue in Rhode Island is confounding. RISD appears to not be a LEA under state law but could, quite possibly, be a LEA under federal law. “It depends” does appear to be a good answer, but, regrettably, this article will not end there. The reason for this is that neither federal nor state law has fath - omed the possibility of a child having two LEA s at the same time. And, this MARC J. SOS S, ESQUIRE particular scenario seems counterproduc - tive. If a school district, as its own LEA , enrolls a child at RISD , which may be a LEA , would both LEA s retain responsibil - ity for the child’s education during the period of time in which the child is at RISD ? It seems difficult from a policy 591 0 Post Boulevard perspective, as well as from the perspec - tive of a child or parent, to have two P. O. Box 1101 27 co-equal LEA s responsible for a child’s Lakewood Ranch, Florida 34 211 education, especially if a dispute arises (9 41 ) 928-0 310 between the LEA s as to the appropriate mjs @fl-estateplanning.com services, placement or responsibility for ww w.fl-estateplanning.com funding such services or placement .50 K.K. v. Rhode Island School for the Deaf presented RIDE with the opportuni - ty to resolve this issue of first impression Available to assist you and in Rhode Island. 51 RIDE had to resolve your clients in Florida with Estate whether a child, legally entitled to an Planning, Probate Administration education in a city or town in which he or she resides, becomes the sole responsi - and Document Revie w. bility of RISD when the child is enrolled at RISD . It seems contrary to federal and state law, as well as the public interest, to absolve a city or town’s school district’s
42 May/June 2011 Rhode Island Bar Journal state and federal responsibilities by merely enrolling a child at RISD . Consequently, the main question that June 2011 Annual Bar Meeting this particular case set to resolve was the respective obligations of educating a child residing in one city or town but attending school at RISD . It seems prudent that one of the LEA s Designed as a means to pro - should be identified as the responsible mote Bar member health and LEA for the purpose of educating a child. In conjunction with this theory, the dis - FREE wellness, the Rhode Island trict argued that K.K. , despite being a res - Bar Association and the Bar’s ident of the Town of Coventry, became Wellness Lawyers Helping Lawyers a “resident” of RISD for educational pur - Committee, in partnership with poses. Essentially, RISD was a LEA , and Center Blue Cross/Blue Shield of Rhode its responsibility included financial obli - Island, are offering a free-to-Bar- gations as well as any procedures that members, Wellness Center at the federal and state law required. In sum, Bar’s Annual Meeting on June 16th the district argued, “[if] it walks like a and 17th, 2011, at the Rhode Island Convention Center in Providence. duck, and squawks like a duck, it must be Located in the Rotunda, the Center features a range of free, interesting, a duck .” 52 However, as discussed above, healthful and educational activities including: the analysis is far from the freedom of – Blood pressure, cholesterol, and glucose screenings certainty. RIDE disagreed with the district’s tru - – Chair massage stations offering relaxing shoulder and upper back massages ism and, instead, had the district eating – Nutrition stop by with a health educator or a registered dietician crow. RIDE concurred with K.K .’s argu - – Sun safety screening with DermaView technology analyzing facial sun ment that RISD was merely a placement damage and that the district retained its federal – Stress management information featuring stress reduction techniques and state obligations. In doing so, RIDE – Body composition screening utilizing non-invasive testing for fitness relied on the residency requirements indicators found in state education law. Specifically, – Personal health assessment utilizing a confidential questionnaire Rhode Island General Laws § 16-24-1 …and Lawyers Helping Lawyers Committee members and Resource and § 16-64-1 require that the school International Employee Assistance Services staff are available for Bar member committee of the town in which a child consultations on a range of physical and mental health issues. resides provide a child with a free and appropriate education 53 (FAPE) including providing procedural protections. As the residency of K.K. was not in dispute, RIDE held that his district of residence was solely responsible for providing him with a FAPE , and RISD was merely a “special purpose LEA ” placement. Essentially, RIDE found that two types of LEA s – or ducks 54 – exist in Rhode Island. Accordingly, RIDE appears to have Rhode Island Probate Court Listing determined that a child cannot have two on Bar’s Website LEA s at the same time in Rhode Island. Instead, “special purpose LEA s” statuto - rily exist, one being RISD , but do not obfuscate the obligations of the LEA of residence. Instead, the K.K. opinion firmly The Rhode Island Bar Association regularly updates the Rhode Island provides that a child’s LEA of residence Probate Court Listing to ensure posted information is correct. The Probate is solely responsible for the provision of Court Listing is available on the Bar’s website at www.ribar.com by clicking a FAPE to that child in Rhode Island .55 on FOR ATTORNEYS on the Home page menu and then clicking on This particular analysis did not kill PROBATE COURT INFORMATION on the dropdown menu. The Listing two birds with one stone though, as it is provided in a downloadable PDF format. Bar members may also increase left open the possibility that LEA s may have alternative means to redress their the type size of the words on the Listing by using the percentage feature at concerns. Specifically, RIDE ’s opinion the top of the page. does not subsume the potential that RISD
Rhode Island Bar Journal May/June 2011 43 may have obligations under federal law. the Rhode Island Regulations of the Board of tion, is appropriate for the analysis as RISD must There is a distinct possibility that RISD Regents Governing the Education of Children with be defined. Essentially, it must be determined Disabilities LEA is defined as: “[a] public board of whether the General Assembly “said the same is an ESA under IDEA . If this is true, a education or other public authority legally consti - thing .” conflict between federal and state law tuted within [Rhode Island] for either administra - 8 Such v. State , 950 A.2d 1150, 1156 (R.I. is readily apparent. Also, the cogitative tive control or direction of, or to perform service 2008)(citing Moore v. Ballard , 914 A.2d 487, 490 complications inherent with this matter function for, public or secondary schools in a city, (R.I. 2007). allow for the terminology “special pur - county, township, school district or other political 9 State v. Greenberg , 951 A.2d 481, 489 (R.I. subdivision of the State or a combination of school 2008) (citing Henderson v. Henderson , 818 A.2d pose LEA ” to artfully enter this debate as districts or counties as are recognized in the State 669, 673 (R.I.2003). it does not appear in state or federal law. as an administrative agency for its public elemen - 10 Id. The opinion also does not offer guidance tary or secondary schools. 20 U.S.C. § 1401(19); 11 Id. as to whether a LEA may proceed against 34 C.F.R. § 300.28; R.I. Regulations § 300.28. 12 Id. a “special purpose LEA ” under state law 4 K.K. v. Rhode Island School for the Deaf and 13 Oxford American Dictionary, 1193 (2005). the Coventry School Department , Rhode Island 14 See R.I. Gen. Laws § 16-26-3.1(2). if a dispute arises between them, though Department of Education Commissioner of 15 See Supra note 2. 56 this is presumed . What is certain, Education Decision, #09-007 (April 1, 2009). 16 “Operate” has several viable definitions including: though, is that “special purpose LEA s” 5 See Supra note 2. “function in a specified manner”; “be in effect”; and LEA s will most likely not be flocking 6 See Supra note 2. “manage and run”; or, “managed and run in a together with this particular issue any 7 In beginning the analysis, one is reminded of certain way .” Oxford American Dictionary, 775. Circuit Judge Friendly’s opinion in Frigaliment 17 See R.I. Gen. Laws § 16-60-1(a). time soon. Importing Co. v. B.N.S. International Sales Corp , 18 See R.I. Gen. Laws §§ 16-60-1(a) and (b). 190 F.Supp. 116 (S.D.N.Y. 1960), where the deter - 19 Id. ENDNOTES mination of “what is a chicken” depended on 20 R.I. Gen. Laws § 16-60-4(3). 1 See R.I. Gen. Laws § 16-24-1. Holmes’ assertion that the agreement of two 21 Id. at § 16-60-4(6). 2 R.I. Gen. Laws § 16-26-3.1(2). external signs (i.e., that two parties said the same 22 Id. at § 16-60-4(7). 3 In Rhode Island Local Education Agencies thing rather than meant the same thing) was most 23 See R.I. Gen. Laws § 16-26-3.1(2). (“LEA”) are akin to school districts. Under the important when analyzing a contract. And, this 24 R.I. Gen. Laws §§ 16-26-3.1(5) and (6). Individuals with Disabilities Education Act and assertion, though applied to contract interpreta - 25 See Supra note 20. 26 R.I. Gen. Laws § 16-26-11. 27 See R.I. Gen. Laws § 16-26-3.1(a). 28 See R.I. Gen. Laws § 16-60-47(7). 29 See R.I. Gen. Laws § 16-26-3.1(2). 30 Id. at § 16-26-3.1(4). 31 See R.I. Gen. Laws § 16-2-5. Litigation communications 32 See R.I. Gen. Laws § 16-26-3.1(c)(3). 33 Compare R.I. Gen. Laws § 16-26-2 with § 16- isn’t about spin. 60-4(3). 34 “[Section] 300.116, consistent with section 612(a)(5) of the Act states that the determination of an educational placement of a child must be based on a child’s Individualized Educational The Perry Group, a Rhode Island Program (IEP). The Department’s position is that placement refers to the provision of special educa - based communications firm, specializes in enhancing tion and related services rather than a specific and protecting the reputation of organizations facing place .” Fed. Reg. Vol. 71 No. 156, 44687 (August 14, 2006). In other words, educational placement litigation or business crisis. is not location driven but rather defines the servic - es to implement a student’s IEP. See Concerned Litigation communications isn’t about spin. It’s about Parents & Citizens for Continuing Education at setting the record straight before somebody else Malcolm X v. New York City Board of Education , 629 F.2d 751 (2d Cir. 1980)(stating educational defines the issues and causes damage to your client’s placement refers to the general educational pro - reputation. gram of child); Board of Educ. Fo. Cmty. High Sch. No. 218 v. Illinois State Bd. Of Educ. , 103 F.3d 545, 548 (7th Cir. 1996); Weil v. Board of The Perry Group provides strategic counsel and media Elementary & Secondary Education , 931 F.2d relations support to companies facing litigation in 1069, 1072 (5th Cir. 1991)(collecting cases inter - preting placement as general educational program); state and federal courts across the country. Tilton v. Jefferson County Bd. Of Educ. , 705 F.2d 800 (6th Cir. 1983). 35 R.I. Gen. Laws § 16-26-7(a). 36 R.I. Gen. Laws § 16-19-1(a). 37 See Supra note 3. 38 See Supra note 3. 39 20 U.S.C. § 1401(5); 34 C.F.R. § 300.12; R.I. Regulations § 300.12. 40 Id. 41 20 U.S.C. § 1401(19); 34 C.F.R. § 300.28; R.I. Regulations § 300.28(a). TEL: 401-331-4600 Qwww.perrypublicrelations.com 42 See 20 U.S.C. 1401 (5)(2004); §§ 300.28(b)(1) and (2).
44 May/June 2011 Rhode Island Bar Journal 43 Fed. Reg. Vol. 71 No. 156, 46565 (August 14, 2006). 44 See R.I. Gen. Laws § 16-26-7. 45 Oxford American Dictionary, 874. 46 Id. at 1199. 47 See R.I. Gen. Laws §§ 16-26-3.1(e)(1) and (2). 48 See R.I. Gen. Laws §§ 16-26-1 (“The name of the institution previously existing under the provi - sions of this chapter as the Rhode Island Institute for the Deaf is changed to Rhode Island School for the Deaf, and shall be known as Rhode Island School for the Deaf .”). 49 Fed. Reg. Vol. 71 No. 156, 46565 (August 14, 2006). 50 In contrast it does seem that this particular scenario may be productive if both RISD and the LEAs agree as to every aspect of a child’s education. Unfortunately, as K.K. v. Rhode Island School of the Deaf implies this is not always the case. 51 As far as this author could determine Rhode Island’s statutory framework provided that these issue are also ones of first impression in the coun - try. It should be noted however, this statement reflects an analysis that is limited to case-law where a final judgment was rendered. 52 See K.K. v. Rhode Island School for the Deaf and Coventry School District , 09-007, 4 (April 1, 2009)(“Coventry argues as follows: ‘RISD is the LEA pursuant to Section 16-26-3.1(c)(2) of the R.I. Gen. Laws…As Judge Selya noted in the case of Carroll v. Capalbo (citation omitted), ‘there is a fair amount of truth in the old barnyard aphorism: if it walks like a duck, and it squawks like a duck, it must be a duck .’”). 53 To provide a Free and Appropriate Education (“FAPE”), a school must formulate an Individual- ized Education Program tailored to the disabled student’s unique needs. See 20 U.S.C. § 1412(a); 34 C.F.R. 104.33(b); 34 C.F.R. §§ 300.324; RI Rules & Regulations § 300.346; see also 20 U.S.C. § 1400 (stating purpose of IDEA is “to provide special education and related services designed to meet [a child’s] unique needs and prepare them for NANCY E. MUENCHINGER further education, employment, and independent Attorney-at-Law living” and “to ensure that the rights of children with disabilities and parents of such children are Cross-cultural negotiations and expertise in French law protected .”). 54 See K.K. v. Rhode Island School for the Deaf Avocat au Barreau de Paris at 4-5 (“Ducks may be split into two main groups …. In our view a similar dichotomy exists, at least in an ontological sense, obtains with regards to 15 Happy Valley Road LEAs. That is to say, that when it comes to special Westerly, RI 02891 USA Tel (401) 596-1494 education, there are at least two sorts of LEAs in Licensed in RI, CT & MA [email protected] Rhode Island .”). 55 See also R.I. Gen. Laws § 16-64-2 (If a child becomes a resident of another LEA the previous LEA is no longer responsible for the education unless the Commissioner of Elementary and DENISE C. PAULSON Secondary Education orders otherwise). 56 See R.I. Gen. Laws § 16-39-1(“Parties having Professional Spanish and Portuguese Interpreter any matter of dispute between them arising under Services in legal and medical settings. any law relating to schools or education may appeal to the commissioner of elementary and sec - • Fluent in 3 languages. ondary education who, after notice to the parties • Professionally trained at Boston University with interested of the time and place of hearing, shall emphasis in legal and medical interpreting. examine and decide the appeal without cost to the parties involved .”). O • Experience in legal and medical settings including in court, depositions, arbitrations, mediations, general hospital and emergency rooms. [email protected] • Cell # 508-965-5556
Rhode Island Bar Journal May/June 2011 45 In Memoriam
Albert Knight Antonio, Esq. Paul E. Phillips, Sr., Esq. Joseph A. Priestley, Jr., and sister Carole A. Priestley, both of East Albert Knight Antonio passed away on Paul E. Phillips, Sr., 61, passed away on Greenwich, and sister and brother-in- March 20, 2011. He was Vice President February 25, 2011. A lifelong Providence law, Pamela Priestley O’Connor and and Branch Manager of Commonwealth resident, he was a son of Ruth B. Phillips James F. O’Connor, Jr. of Wakefield. Land Title Insurance Company in of Warwick and the late Milton Phillips. Providence, RI, and admitted to prac - He was the former husband of JoAnn S. Harold Skolnick, Esq. tice in Rhode Island, Massachusetts and Marzocch Phillips. Paul was a noted Florida. He was First Vice President of Rhode Island musician for many years, S. Harold Skolnick, 95, passed away New England Land Title Association, having recorded for RCA records as a on November 25, 2010. He was born a Lifetime Fellow in the Rhode Island member of the Blue Jays and touring on June 17, 1915 to David and Elsie Bar Association, and Chairperson for internationally with The Buddy Rich Skolnick in Woonsocket, RI. Harold the Bar’s Title Standards and Practices Band. Later in life he returned to school, had a private law practice in Miami, Committee. He previously worked for graduating from Brown University and retiring in 1986. He graduated from former US Attorney General Janet New England School of Law, and was Amherst College and Boston Reno as Legal Advisor for the Dade an attorney at the Law Office of Paul E. University Law School. During World County Public Safety Department Phillips, P.C. in Providence. Paul was a War II, he served in the US Army and had served as a police officer in member of the Providence Federation of Ordnance Department in Italy and Barrington, RI. Albert served on the Musicians and a former member of Temple Africa and retired as a Lt. Colonel. Planning Board for the Town of Beth-El. He was the devoted father of He was a benefactor of Massachusetts Rehoboth, MA, as a member of the Paul E. Phillips, Jr. of Chelmsford, MA General Hospital in Boston, Technion Board of Directors of Community & and Michael V. Phillips of Philadelphia, and Amherst College. Harold Teachers Federal Credit Union of East PA. and the brother of Gary J. Phillips belonged to the Shriners and Elks, Providence, RI, and as a member of of Buffalo, NY. and he was a 32nd degree Mason. the Standing Committee at Trinitarian He enjoyed going to American Bar Congregational Church in Norton, MA. William H. Priestley, Esq. Association meetings with his family each year. He is survived by his loving Albert was an avid runner and accom - William H. Priestley, 43, of East wife Shirley, and his children Judi plished athlete. With his daughter Greenwich, passed away on April 8, 2011 Lapinsohn, Steve and Susan Karen he formed the LandAmerica with his beloved wife of twelve years, Lapinsohn, and Ilene and Bob Eber. running and walking team. He coached Kinda Remick Priestley, by his side. Born baseball and basketball teams for in Providence, a son of the late Joseph numerous organizations including the A. and Beverly M. Priestley, he grew up Pawtucket Boys and Girls Club, the in Barrington and Westerly. Bill was a Newman YMCA, Dighton-Rehoboth graduate of St. Paul’s School, a cum laude Little League, the Rehoboth Congre - graduate of Colby College, and a cum ga tional Church, and the Amateur laude graduate of Boston University Athletic Union. He was named YMCA School of Law. He worked at Edwards Volunteer of the Year in 1995. Albert Angell Palmer & Dodge LLP in the is survived by his wife, Karen Elaine Litigation Management Department. He Kuhn Antonio and his children and was admitted to the Rhode Island and Please contact the Rhode Island Bar their partners: Karen Elaine DeQuattro Massachusetts Bars and was a member Association if a member you know and her fiancé Andrew Forber; of both state Bar Associations. He was passes away. We ask you to accompany Matthew Antonio; Michael Antonio as a member of the Colby Woodsmen’s your notification with an obituary and his wife Kristen Marie; Kristen Team and Outing Club, on the golf notice for the Rhode Island Bar Emily McDonough and her husband course, and on the ski slopes, a recrea - Journal. Please send member obituaries Dylan; Katherine Antonio and her tional singer/songwriter and a mentor for to the attention of Frederick D. fiancé Justin Pontes; Nicholas Knight Rhode Islanders Sponsoring Education Massie, Rhode Island Bar Journal Antonio; Kylie Noelle Antonio; and mentor. In addition to his wife he is sur - Managing Editor, 115 Cedar Street, Lauren Pollard. vived by his four children, Georgia, 7, Providence, Rhode Island 02903. twins Harry and Owen, 5, and Emma Email: fmassie @ribar.com, facsimile: Remick Priestley, 20 months, his brother 401-421-2703, telephone: 401-421-5740.
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