Rhode Island Bar Journal - Rhode Island Bar Association

the demands of any such right to informationalprivacy as might exist, and thatjudicial modesty argues against decidingthe constitutional question needlessly.That modesty was met with a rebuke,in the form of a strongly-worded concurrenceby Justice Scalia, in which JusticeThomas joined, saying that the Courtshould have reached the question andanswered it negatively. With a fitting(dis)regard to what had recently beenderided as “empathy,” 17 Justice Scaliaderides what he calls:[T]he farcical nature of a contentiondiscuss such a right. It certainly seemsclear that there is not the robust supportfor this concept as is found in some otherparts of the country.The First Circuit reviewed the field,in the context of a claim for qualifiedimmunity in a § 1983 case, in Borucki v.Ryan, 21 where the court found there wasno “clearly established” right to informationalprivacy such as would remove thecloak of qualified immunity. That decision,in turn, mentions an earlier decisionby Judge Pettine 22 that alludes, in a footnote,to growing support for a right ofinformational privacy. Neither decisionexpressly finds such a right, nor do theyforeclose its existence. The circuit courtwas somewhat stronger in Vega-Rodriguez v. Puerto Rico TelephoneCompany, 23 involving video, but notaudio, surveillance of an open area ofa workplace.The employees sued, alleging, interalia, a violation of their right to privacy.The district court dismissed the complaint,and the appeals court affirmed.While affirming the trial court, theappeals court nevertheless recognized theexistence of a constitutional right of privacy,albeit a narrowly circumscribedone. The court distinguished betweena privacy right as it relates to personalautonomy in making certain personaldecisions, and another right relating toconfidentiality of private matters. Thecourt found that neither of these rightswas implicated in video surveillance ofpublic areas in a workplace. Importantly,though, the court’s recognition of “ensuringthe confidentiality of personal matters,”24 citing Whalen and Borucki, wasnot in any way hedged as being hypotheticalor assumed for the sake of judicialmodesty. In fact, the First Circuit, in alater case, cited Vega-Rodriguez approvinglyin support of a narrowly drawnright “prohibiting profligate disclosureof medical, financial, and other intimatelypersonal data.” 25The Rhode Island Supreme Courtappears not to have directly addressedthe existence of a constitutional right toinformational privacy, 26 though there hasbeen some law regarding Rhode Island’sstatutory right to privacy, as well as referenceto a more general right of privacy. 27The Court has explicitly held there is notort-based common law right of privacy,and any such right needs to be createdby the legislature. 28 The Court has recogthata right deeply rooted in our historyand tradition bars the Governmentfrom ensuring that the HubbleTelescope is not used by recoveringdrug addicts. 18So, the most we can say is that theCourt declined to declare unequivocallythat such a right exists, and avoided eliminatingthe right definitively. 19 Several circuitshave well-established lines of casessupporting the existence of a constitutionalright of informational privacy. 20The law in the First Circuit is less clear,as there are relatively few cases here thatPELLCORP INVESTIGATIVE GROUP, LLCPrivate InvestigationsEdward F. Pelletier III, CEO(401) 965-9745www.pellcorpinvestigativegroup.comEmployee Benefits LawRetirement Plans and Executive CompensationEdward M. McElroyMember of the Rhode Island BarMcElroy Law Group, APC4660 La Jolla Village Drive, Suite 500San Diego, CA 92122Telephone: 858.625.4670Facsimile: 866.243.3264Email: emcelroy@mcelroylawgroup.netDesigning Innovative Retirement Plans to Businesses NationwideSan Diego and Chicago Offices8 May/June 2011 Rhode Island Bar Journal

Bar’s Public Services Receives $20,000 Grant in Supportof US Armed Forces Service ProjectMichael A. Cooper, President of the Boardof Trustees of the American College ofTrial Lawyers Foundation, announced theaward of $20,000 to the Rhode Island BarAssociation's United States Armed ForcesLegal Services Project. Brought to theFoundation’s attention by the College’sEmil Gumpert Award Committee, theFoundation determined that althoughthe Project, one of only three finalistsfor the Gumpert Award, did not win theGumpert, it is deserving of Foundationrecognition and financial support. TheBar will use the $20,000 grant to furtherthe goals of the Project and publicize theProject to other states.Unique to Rhode Island, initiated byPast Bar President Victoria M. Almeida,and launched in late 2009, the US ArmedForces Legal Services Project, an effort ofthe Rhode Island Bar Associations PublicServices Department, is specificallydesignedto provide those serving in themilitary and their families with legalassistance. Coordinated with theAttorney-Advisor at the Office of theStaff Judge Advocate, volunteer attorneysdirectly represent military personnel byaccepting civil law cases including familylaw, probate issues, landlord/tenant, realestate, contracts, consumer, bankruptcy,collections, employment, immigration/naturalization, and income tax issues.Bar’s US Armed Forces Legal Services Project Program StatisticsVolunteer attorneys to-date: 55First case placed: August 18, 2009Cases placed: 141Case typesVeterans Benefits – 8Consumer – 36Family Law – 58Probate – 19Other – 20Cases per military branchArmy – 16 Air Force – 4RI Guard – 73 Coast Guard – 5Navy – 17 War Veterans – 19Marines – 7US Armed Forces Legal Services ProjectThe following Bar members have generouslyvolunteered their time and legal expertiseto the Bar’s nationally-recognized US ArmedForces Legal Services Project:Alan M. Barnes, Esq.Armando E. Batastini, Esq.David N. Bazar, Esq.Renee M. Bevilacqua, Esq.Andrew R. Bilodeau, Esq.John L. Calcagni, III, Esq.Jennifer L. Caputi, Esq.Patrick Carroll, Esq.Joseph P. Casale, Esq.Robert V. Chisholm, Esq.Gerard P. Cobleigh, Esq.Peter P. D’Amico, Esq.Susan L.B. Darnell, Esq.William J. Delaney, Esq.Gerald C. DeMaria, Esq.Priscilla Facha DiMaio, Esq.Stefanie DiMaio-Larivee, Esq.Kathleen G. DiMuro, Esq.Christine J. Engustian, Esq.Patrick A. Fayle, Esq.William E. George, Esq.Humberta M. Goncalves-Babbitt, Esq.Jane B. Gurzenda, Esq.Kevin A. Hackman, Esq.William A. Hardman III, Esq.WeWantYouFor The Armed ForcesLegal Services Project!The Rhode Island Bar Association’sUnited States Legal Services Projectneeds volunteers to answer the call.To join, please contact the Bar’sPublic Services Director SusanFontaine by telephone: 401-421-7722or email: sfontaine@ribar.com.10 May/June 2011 Rhode Island Bar Journal

Volunteer AttorneysBar Member and National GuardCaptain’s Praise for Armed ServicesLegal ProjectPatrick O. Hayes Jr., Esq.Christopher D. Healey, Esq.Bernard P. Healy, Esq.Patrick F. Hess, Esq.Carly B. Iafrate, Esq.Richard H. James, Esq.Suzanne C. Jardin, Esq.W. Parish Lentz, Esq.Donna S. Madden, Esq.John Nathan Mansella, Esq.Michael K. Marran, Esq.Frederic A. Marzilli, Esq.Mary Ellen McQueeney-Lally, Esq.Timothy J. Morgan, Esq.John T. Mulcahy, Esq.Anthony F. Muri, Esq.Donald J. Nasif, Esq.Amy Page Oberg, Esq.Paul J. Panichas, Esq.Paul P. Pederzani III, Esq.Michael S. Pezzullo, Esq.Charles A. Pisaturo Jr., Esq.Vincent J. Rinaldi, Esq.Raymond M. Ripple, Esq.Kyle Rocha, Esq.Roger C. Ross, Esq.Elizabeth Tanner, Esq.Elliot Taubman, Esq.Dawn M. Vigue ThurstonK. Erik Wallin, Esq.In February, the Rhode Island BarAssociation’s Public Services andContinuing Legal Education Programssponsored “Custody and SupportIssues In Relocation Cases: Doesn’tanybody stay in one place anymore?”This CLE was offered, free of charge,to 46 attorneys from the Bar’sVolunteer Lawyer Program and theUS Armed Forces Legal ServicesProject, who accepted a pro bonofamily law case. Seminar speakers(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.Vicky and friends,Thank you so much for the support and kind words. Know that they helpme tremendously as I prepare to leave my family, friends, and community formy year-long deployment. Admittedly, though, I am looking forward to theopportunity to serve our Nation in a challenging environment. I am goingwith a very experienced unit and some terrific training by our U.S. ArmyJudge Advocate General’s Corps.I also want to thank you and the Bar for your continued support ofthe Rhode Island military community through the US Armed Forces LegalServices Project. Just for some perspective, while our state has one of thesmallest Army National Guards in the country (no surprise) with 2,200troops, we have and still do deploy more often (per capita) than almost everyother state. Right now, 483 Soldiers are currently mobilized in SouthwestAsia and another 374 are going out the door in the next few months (includingme in a couple of weeks!). And we are in the 10th year of operations.For my unit (the 43d Military Police Brigade), this is our third deployment(but my first) since 9/11.With this kind of operational tempo, the legal services you provide trulyassist us in our mission. Resolving legal issues before heading into harm’s wayprovides soldiers with peace of mind so they can focus on what they have todo to come home safe. Similarly, the services you provide when our troopsare back home help with the transition and lifts a burden as they prepare forthe next mobilization. Please know that our leadership is fully aware of whatyou are doing to support us and are very thankful for it. Your efforts are notgoing unnoticed, I promise you that!Keep doing what you are doing. It means so much to us. I look forwardto rejoining you in 2012!Michael P. JolinCPT, JATrial Counsel43d Military Police BrigadeWarwick ArmoryRhode Island Bar Journal May/June 2011 11

12 May/June 2011 Rhode Island Bar Journal

Oh, Atlanta!American Bar Association Delegate Report:ABA Mid-Year MeetingRobert D. Oster, Esq.ABA Delegate and PastRhode Island BarAssociation President…reminders wereparticularlyappropriate inAtlanta, the homeof the MartinLuther KingCenter, the JimmyCarter Center,Sherman’s Marchduring the CivilWar and a onetimebastion ofsegregation andthe Confederacy.The American Bar Association (ABA) Mid-yearMeeting in Atlanta, Georgia was eventful andenjoyable. The two-day event was filled withmany programs and included the House ofDelegates deliberations. We were addressed bythe ABA’s first Hispanic-American President,Steve Zack, a member of the Florida Bar who,at a young age, was a Cuban émigré. Zackrecalled being held in a Miami immigrationdetention center and his gratitude for a newlife in the United States, a land of immigrants.Attorney Zack is particularly well suited to leadthe ABA at a time when immigration reformand enforcement are at the top of federal, stateand local agendas.The House of Delegates was addressed byCongressman John Lewis, the son of sharecroppersand a leader in the Civil Rights movementwho recalled his over 40 incarcerations for civildisobedience to racist laws. He inspired us allby his life story and exhorted us to rememberwe are all of “one house” regardless of ourmany differences. Later in the evening, he traveledback to Washington, D.C. to receive thePresidential Freedom Medal at the White House.Chief Justice Wallace Jefferson, of Texas, thePresident of the Conference of Chief Justices,told the House of his familys’ inability to finda hotel that would accept an African Americanfamily in Texas in the 1950s, even though hisfather was a member of the armed forces.All of these addresses above brought tearsand chills to me, as they are stories of inspirationto succeed in the law despite walls ofhatred and bigotry based on race or ethnicity.These reminders were particularly appropriatein Atlanta, the home of the Martin Luther KingCenter, the Jimmy Carter Center, Sherman’sMarch during the Civil War and a one-timebastion of segregation and the Confederacy.The Delegates were treated to a sneak previewof the latest Robert Redford film, TheConspirator, soon to be publically-released.I encourage Bar members to see a great actor’sand film director’s take on the Lincoln assassinationstory. Any of us who has represented anunpopular defendant in a criminal proceedingwill identify with the attorney who representedan alleged co-conspirator of John Wilkes Booth.The film has particular relevance today in lightof the government’s war on terror and howcivil liberties can be abridged in a time of war.While there is little free time at these meetings,I always try and fit in a volunteer opportunityto mentor young lawyers or law studentseither by participating as a judge in nationalmediation or advocacy competitions held inconjunction with the ABA’s meetings. This year,I was able to assist young law students from theABA’s Law Student Division. I consider givingback to these students a duty and a pleasure.The Delegates were called upon to vote ona variety of issues which directly affect thepractice of law. First, a resolution was passedopposing proposed cuts in funding for the LegalServices Corporation. Low income individualsseeking access to justice are more numerous thanavailable services. As Interim President of RhodeIsland Legal Services (RILS) Board of Directors,I attest to those needs. On a related note, I succeededJudge Walter Stone whose many years ofwork and dedication as RILS Board President isworthy of the Rhode Island Bar Association’sand the community’s admiration.Several resolutions of interest to the criminalbar were on the agenda, particularly the obligationto comply with discovery under Brady v.Maryland, 373 U.S. 83 (1963), concerning federalguidelines regarding sentencing of whitecollar defendants and pretrial detention orders.The Family Law Section proposed a resolutionon bullying, both cyberbullying and youthto-youthsexual and physical harassment andsupporting education programs to assist inreducing this antisocial behavior.A perennial favorite, a collaborative law resolution,reviewed in my November/December2010 Bar Journal ABA Report, was withdrawnto be refined and resubmitted at a later date.A resolution passed requiring civic educationin lower, middle and upper public schools. Amyriad of other resolutions dealing with gun control,uniform state laws, patent law and otherareas of specialized practice were proposed.As always, I am honored to serve as theRhode Island Bar Association’s ABA Delegate,and I welcome Bar members comments orsuggestions regarding my representation. ❖Rhode Island Bar Journal May/June 2011 13

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Just a Wingman? Rhode Island’sSpecial Purpose Local EducationAgencyBryan W. Hudson, Esq.Rhode Island BarAssociation Member… school districtsin Rhode Islandhave found it difficultto determineresponsibility forthe provision ofeducational servicesto resident children.Though it may be somewhat of a surprise tomany who do not practice education law, schooldistricts in Rhode Island have found it difficultto determine responsibility for the provision ofeducational services to resident children. Thisdifficulty exists even though Rhode Island lawprovides that the city or town where a childresides must make special education servicesavailable to that child. 1 In fact, and most likelydue to the current economic environment, thegrowing trend within the State is for districtsto renounce provision of educational servicesto children educated at the Rhode Island Schoolfor the Deaf (RISD). In doing so, the districtsrelied on Rhode Island General laws § 16-26-3.1(2) that provides RISD “[shall] be operatedas a local education agency (LEA).” 2 In relyingon this portion of the law, the districts arguethat the language effectively absolves them ofresponsibility for a child enrolled at RISDbecause it is an equal LEA 3 under federal andstate law.Regrettably, other provisions found withinstate law and the Individuals with DisabilitiesEducation Act (IDEA) as well as the Rhode IslandRegulations of the Board of Regents Governingthe Education of Children with Disabilities (R.I.Regulations) eclectically complicate the otherwisestraightforward analysis. Moreover, theRhode Island Department of Education (RIDE)recently offered an opinion concerning RISD –as an atypical concomitant LEA – in K.K. v.Rhode Island School for the Deaf. 4RISD operated as as a LEAAs mentioned above, Rhode Island law providesthat RISD “[shall] be operated as a [LEA]and shall be governed by a board of trustees.” 5In addition, RISD’s “[board] of trustees shallhave the powers and duties of a school committee.”6 This language appears unequivocal, yettwo questions remain. First, taking into considerationthe statutory construction, does RISD’s“operation as” a LEA mean that it is a LEA?And second, does “[having] the power andduties of a school committee” mean that RISD’s“board of trustees” is a “school committee”? 7In Rhode Island, “It is well settled that whenthe language of a statute is clear and unambiguous,[it] must [interpreted]…literally and…thewords of the statute [should be given their]plain and ordinary meanings.” 8 If the languageis unambiguous on its face, the analysis shouldnot go any farther to discern legislative intent. 9It is an equally well-settled principle that“statutes relating to the same subject mattershould be considered together so that they willharmonize with each other and be consistent”with their general objective scope. 10 Essentially,Rhode Island statutory construction involves a“practice of construing and applying apparentlyinconsistent statutory provisions in such a mannerso as to avoid the inconsistency.” 11With Rhode Island’s method of statutoryinterpretation in mind, and given that the languagedoes not appear ambiguous, the plainor literal meaning should be given to the termsof § 16-26-3.1(2). The language of the statutereads RISD’s “[board] of trustees shall have thepowers and duties of a school committee.” 12The term “have” in this particular statuteappears to mean: “possess or be provided with(a quality, characteristic or feature).” 13 By implication,the RISD’s board of trustees would not“possess” the powers or duties of a schoolcommittee but for the language of the statuteprovided by the General Assembly. As this is thecase, it appears that the legislative intent wasto provide RISD’s board of trustees with thedistinctive “quality, characteristics or features”of a school committee.However, RISD’s board of trustees merelyhaving the “qualities, characteristic or features”of a school committee does not necessarily meanthat it is a school committee. At first glance, itappears that had the General Assembly meantto legislatively turn RISD’s board of trusteesinto a school committee, it would have utilizedmore definitive language rather than merelyprovide the board of trustees with characteristicsor features of a school committee. This willbecome evident when other statutes are read inconjunction with this language because, as discussedbelow, if the General Assembly hadintended that RISD’s board of trustees actuallywas a school committee, it seems plausible thatRhode Island Bar Journal May/June 2011 15

it would not have withheld many of thepowers that school committees possess inthe State. 14As for RISD’s “[operation] as a[LEA],” 15 the language in and of itselfappears to be unambiguous as well.Again, application of the plain meaningto the language of the statute gives us thesame conclusion as above. The GeneralAssembly chose to include the language“operate as” instead of other readilyavailable and definitive language. So, itappears that RISD is “managed or run”as an LEA rather than it being an LEA. 16Workers’ CompensationInjured at Work?Accepting referrals for workers’compensation matters.Call Stephen J. Dennis Today!1-888-634-1543 or 1-401-453-1355Office Space AvailableWithin Existing Law OfficeAMENITIESReceptionist • Conference RoomsCopier • ParkingSecretarial Stations • Filing CabinetsGreat LocationCONTACTJim Goldman51 Jefferson BoulevardWarwick, Rhode Island401-781-4200, ext. 11What is the Rhode Island School forthe Deaf?Prior to delving into the statutory languagethat confounds § 16-26-3.1(2), adiscussion about RIDE and RISD’s governanceis appropriate. The Board ofRegents is constituted under the GeneralLaws as a “public corporation.” 17 TheState of Rhode Island statutorily “entrusted[it with] control of elementary andsecondary education institutions andfunctions” as well as”[invested it] withthe legal title (in trust for the state) to allproperty, real and personal, now ownedby and/or under the control or in thecustody of the board of regents for educationfor the use of the department ofelementary and secondary education.” 18The Board of Regents is also successorto “[all] powers, rights, duties, and privilegespertaining to elementary and secondaryeducation. 19 And, the Board ofRegents cannot “engage in the operationor administration of any subordinatecommittee, local school district, school,school service, or school program, exceptits own department of elementary and secondaryeducation, and except as specificallyauthorized by an act of the generalassembly.” 20 In addition, the Board ofRegents “[maintains] a department ofelementary and secondary education,[provides] for its staffing and organizationand [appoints] a commissioner ofelementary and secondary education pursuantto § 16-60-6 who shall serve at itspleasure. 21 Furthermore, the Regents havethe power to:“establish other educational agenciesor subcommittees necessary or desirablefor the conduct of any or allaspects of elementary and secondaryeducation and to determine all powers,functions, and composition of anyagencies or subcommittees and to dis-16 May/June 2011 Rhode Island Bar Journal

solve them when their purpose shallhave been fulfilled; provided thatnothing contained in this subdivisionshall be construed to grant the regentsthe power to establish subcommitteesor agencies performing the duties andfunctions of local school committeesexcept as provided in § 16-1-10.” 22Though the RISD’s board of trusteeshas many of the powers of a school committee,many powers are “[reserved to]the commissioner of elementary andsecondary education, and the board ofregents for elementary and secondaryeducation….” 23 For instance, the Boardof Regents and the Commissioner provideparameters for RISD’s budgetrequests, recommends a budget, and participatesin budget development. 24 TheBoard of Regents does not have similarschool committee budgetary authority inthe several towns and cities throughoutthe State. Instead, the Board of Regentsspecifically cannot “engage in the operationor administration” of local schooldistricts without an act of the GeneralAssembly. 25 But, the Regents do have theexplicit authority to “[carry] out the provisionsof [§ 16-26]” and to “[make] anyrules and regulations governing the operationof [RISD] that may be required.” 26In fact, the General Assembly expresslydelegated the Board of Regents morepowers and duties than enumerated elsewherein the General Laws in conjunctionwith RISD. 27Even though the Regents have broadrule and regulation authority when itcomes to the governance of RISD, theRegents cannot provide RISD’s Board ofTrustees with “the duties and functions”of a school committee. 28 While “schoolcommittees” have the “entire care, controland management” of public schoolinterests of its city or town, the legislaturespecifically withheld certain dutiesand powers from RISD’s Board ofTrustees. 29 For instance, the Board ofRegents, not RISD, establishes strategicdirections for the education of deaf andhard of hearing children in the state ofRhode Island. 30 And, “school committee”members are typically elected eitherannually or biennially, 31 while membersof RISD’s Board of Trustees are appointedby the Board of Regents. 32In sum, a careful review of RhodeIsland law illustrates a public corporatestructure that provides that RISD is neitherwholly a LEA nor is its board ofProvidence Valuation, LLCbusiness appraisal and consultingbusiness valuationslost profits studiesfractional interestdiscount analysesasset recoveryintangible assetvaluationlost earnings studiesbusiness acquisitionsand salesProvidence Valuation is dedicatedto providing the highest quality ofobjective and confidential servicesto our clients, small and mediumsized enterprises and high networth individuals in the greaterRhode Island area, in the mosteconomical way.John “Jay” CandonCPA, ABV, ASA, CFE, CFF1750 Ministerial RdSouth Kingstown, RI 02879401.714.4099www.providencevaluation.com– 20 years business valuation experience– Recognized as an expert by the U.S. TaxCourt, Federal Courts and State Courts– Certified Public Accountant– Accredited in Business Valuation– Accredited Senior Appraiser– Former Chief Financial Officer of acommercial bankBALSOFIORE & COMPANY, LTD.FINANCIAL INVESTIGATIONSFORENSIC ACCOUNTING LITIGATION SUPPORTFINANCIAL PROFILES OF INDIVIDUALS AND BUSINESSESLOCATE PEOPLE – ASSET SEARCHESBrian C. Balsofiore, CFEbbalsofiore@cox.netCertified Fraud Examiner (401) 486-7145RI Licensed Private DetectiveRhode Island Bar Journal May/June 2011 17

Yo ou wan t it.Wehaveit.Guardian Disability IncomeInsurance10% discount to RI BarMembersAs a legal professional, you may have begun to think you'd never be ableto find the kindof high-quality disability income coverage you need.Coverage that includes:efit payments when you can't work at your own occupation -even if you can work at another one-cancellableand guaranteed renewable to age 65ver of premiums during disability benefit periodIf this sounds like the kind of disability protection you've been m ore about it, please call:Robert J. Gallagher & Associates,Inc.A Representative of GuardianRobert J. Gallagher, Jr., CLU, ChFCAgentP.O. Box 154467Riverside, RI 02915401-431-0837rjgiggs@aol.comDisabilityincome products underwritten and issued byBerkshire LifeInsurance Company of America, Pittsfield, MA a wholly owned stock subsidiary ofThe GuardianLife insurance Company of America, (Guardian)New York, NY.Products not available in all states. Product provisions and featuresmay very from state to stateDAVIDW. DUMASATTORNEY AT LAW5 DIVISION STREETEAST GREENWICH, RI 02818MISSING HEIRS LOCATED - GENEALOGYCONSULTATION ON DIFFICULT TITLES401-884-3678trustees wholly a school committee.Essentially, RISD is a conundrum. Itappears that it is a political subdivisionof the Board of Regents with the characteristicsof a LEA that the GeneralAssembly expressly allows the Regentsto administer and control. 33Let us (possibly) complicate thisdiscussion furtherTo further complicate the analysis,RISD may also be considered an educationalplacement and/or an educationservice agency (ESA) under federal law.Though educational placement is notdefined in IDEA, the United StatesDepartment of Education has commented.Specifically, a placement refers to the“provision of special education and relatedservices rather than a specific place.” 34Essentially, students have their IndividualEducation Program’s (IEP) developed bya LEA and then are placed at a locationto implement provision of the enumeratedspecial education and related services.This analysis becomes important whenit is viewed in light of RISD not being amandatory educational setting – studentsare not required to attend under RhodeIsland law. The language of Title 16Chapter 26 provides that if a child’simpairments make it impracticable forthe student to make progress towardhis or her educational goals in a publicschool, he or she “may attend” RISD“without charge.” 35 This is contrary tothe Rhode Island compulsory attendancelaws which provide that children “shallregularly attend” a public school in thecity or town where the child resides. 36 Inother words, LEAs send children to RISDfor an education in lieu of providing theservices themselves.Though “placement” has no IDEAdefinition, LEA is defined. LEA is definedas:“a public board of education or otherpublic authority legally constitutedwithin [Rhode Island] for eitheradministrative control or directionof, or to perform service function for,public or secondary schools in a city,county, township, school district orother political subdivision of the Stateor a combination of school districts orcounties as are recognized in the Stateas an administrative agency for itspublic elementary or secondaryschools. 37LEA includes: “educational service18 May/June 2011 Rhode Island Bar Journal

agencies” and “any other public institutionor agency having administrative controland direction of a public elementaryor secondary school, including publicnon-profit charter school that is establishedas an LEA under State law.” 38 AnESA is defined as a regional public multiserviceagency, authorized by state law todevelop, manage and provide services orprograms to LEAs, and recognized as anadministrative agency for purposes of theprovision of special education and relatedservices provided within public elementaryand secondary schools of the state. 39The term ESA includes “any public institutionor agency having administrativecontrol and direction over a publicelementary school. 40Under the first part of the definitionof LEA, based on the analysis above,RISD appears to fall short as an LEA.Specifically, RISD does not have “controlor direction of, or performs service functionsfor,…public or secondary schoolsin a city, county, township, school districtor other political subdivision of theState…” 41 RISD, as mentioned above,appears to be, in an off itself, a politicalsubdivision of an administrative agencyof the State managed as a LEA. Therefore,RISD is not “recognized,” legally or otherwise,as an administrative agency andfalls short of the second half of thedefinition.However, the definition of LEA alsoincludes ESA and “other public institutionsor agencies.” 42 These ESAs are consideredto “[have] full responsibilities andright as LEAs.” 43 When RISD is viewed inlight of the ESA definition, a much moreconvoluted analysis evolves. First, therecan be little argument that RISD is public,as it receives public financing throughRIDE and the Board of Regents and underboth the purview of the Board of Regentsand RIDE. Second, it is evident that RISDdoes have “administrative control anddirection over a public elementaryschool.” 44 Whether RISD is also aninstitution, however, requires analysisof the term.Institution is not defined under theIDEA or the RI Regulations, and thereforeshould be given its plain meaning.Institution is defined as “a society ororganization founded for religious, educational,social or similar purpose” or“an organization providing residentialYOURCONNECTICUTCONNECTION• HartfordNew Londonoffice• Norwich• Westerly21 Huntington Street New London, Connecticut 06320 860.443.701416 Nooseneck Hill Road W. Greenwich, RI 02817 401.385.3877109 Larchmont RoadWarwick, Rhode Island 02886Tel: 401-439-9023M ESSIER & MASSAD • COUNSELORS ATLAWGregory P. Massad* Alan R. Messier Jeffrey C. AnkromWarwick •West GreenwichofficeConnecticut State & Federal CourtsConnecticut Trial Lawyers AssociationRhode Island Association for JusticeRIBA Volunteer Lawyer ProgramRIBA Lawyers Helping Lawyers CommitteeJason B. Burdick*Licensed in Rhode Island OnlyAREAS OF PRACTICE:Personal InjuryReal EstateBankruptcyWills & ProbateFamily LawLandlord & TenantDUICollectionsBusiness FormationCommercial Litigationcontinued on page 42Rhode Island Bar Journal May/June 2011 19

10 Weybosset Street, Suite 205 • Providence, RI 02903Tel: (401) 455-3500 Fax: (401) 455-0648www.mignanelli.comWills/TrustsEstate Tax PlanningEstate SettlementsTrusts for Disabled PersonsAnthony R. MignanelliAttorney at LawPersonal Injury Settlement TrustsAll Probate MattersThe 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 IslandReal Estate Closing?Real Estate Attorneys’ Liabilities after GroffDavid M. Dolbashian, Esq.Law Office of David M.Dolbashian, Esq. P.C.,ProvidenceHistorically, mostclosing attorneysconsidered thelender their client.In short, thelender appeared tocontrol the attorney.Or so weonce thought.Disciplinary counsel inquired, “Dave, exactlywho are you representing in this closing?”Without hesitation, I responded, “Well, thebank (of course).”“Not so fast, counselor…I think you need toread Groff before you can say that…”My breathing stopped for a few seconds uponhearing that statement.Perhaps I should back up a bit…The Groff decision (Credit Union CentralFalls v. Groff, 2009 RI 966 A.2d 1262 (RI SupCt, 2009)) was decided February, in 2009. Theessential holding of Groff is that a settlementattorney actually represents the borrower in abank-financed, real estate closing and possiblyowes duties to other non-client parties as well. 1Those other parties, such as a lender, are nowconsidered “third party beneficiaries” to thecontractual agreement between the borrowerand closing attorney. 2 It is a shift of the commonly-heldunderstanding that will sweepthrough the bar of Rhode Island real estateattorneys.In my situation, what appeared to be anormal, garden-variety closing developed intoa problem when the lender failed to wire thesettlement proceeds to my account in a timelymanner. The situation was considerably tighterdue to the fact that the prior lien to be paid wasfor an Federal Housing Administration (FHA)loan which required an additional month’sworth of interest (and not a standard per dieminterest amount) if the payoff were to bereceived after the first day of the next month.The borrower could not (and should not havehad to) produce any such an additional amount.The lack of funds from the lender severelythreatened my office’s ability to assure a fullypaid lien. My concern was that, without fullpayment, the borrower would still have anactive amount on the loan, accumulating interest,and the new bank would not be in firstposition as the title policy I issued would haveguaranteed. After the exchange of strained anddemanding emails back and forth between thelender and my office, the funds finally arrived,but not before I had made a call to DisciplinaryCounsel to ask about my next possible courseof action. Disciplinary Counsel’s inquiry (seeabove) as to whom I represent deeply concernedme. It was not for the matter at hand, but,rather, how I would operate going forward.What had appeared to be a quarrel betweenclient and attorney (the lender and myself), nowplaced me at odds instead with the borrower,and all the implications that it conjures.What is it about Groff that should make areal estate attorney worry? Historically, mostclosing attorneys considered the lender theirclient. The lender traditionally dictated theactions of the attorney, and the instructionsdelivered with most closing packages had directivesfollowed without deviation. In short, thelender appeared to control the attorney. Or sowe once thought.After Groff, it is now the borrower whomthe attorney represents. The difference mayappear to be a nuance, but the fiduciary dutiesthat such a shift places upon a closing attorneycan wreak havoc with how one approaches titleissues, questions from borrowers, dealings withlenders, and, most importantly, disbursementsof monies from these closings.The travel of Groff initially appears complicated,but it is not. Attorney Lawrence Groffacted as a settlement agent for a number ofloans from Credit Union Central Falls (CUCF),now known as Navigant Credit Union. Allegationswere leveled against Attorney Groff bytwo borrowers in two separate closings.Allegedly, Groff did not pay previously encumberedliens for those individual borrower’sproperties which were to be paid via the proceedsof the new loans (as identified in thesettlement statements of the loans). The titleinsurer, Mortgage Guarantee, as a result of thetitle policies written by Groff, were obliged toprovide the payoffs to assure the insured lender,CUCF, they would be in first position. MortgageGuarantee then filed suit against their formeragent, Groff, for reimbursement. CUCF alsosued Attorney Groff for malpractice. As aresult, Attorney Groff’s escrow account wasRhode Island Bar Journal May/June 2011 21

Ifyour clientneedsanexpertbusiness valuation…atcall in a real expert.Over2,500 0accurate, independent and defendable valuations ations provided sincethe early 1980s. Decades of experience in both bench and jury trials.Leo J. DeLisi, Jr.,ASA, MCBA,ABARAccredited SeniorAppraiserMasterCertified Business AppraiserAccredited in Business Appraisal ReviewFellow, American College ofForensic ExaminersValuingBusinessessince1984www.DeLisiAndGhee.comRHODE ISLANDPRIVATE DETECTIVES LLCAn Agency of Former Law Enforcement InvestigatorsFBI Special AgentsIRS Special AgentsPolice DetectivesCriminal InvestigationsDue Diligence and Personal Background InvestigationsLitigation Support ServiceWhite Collar CrimeHenry Roy Senior Partner989 Reservoir AvenueCranston, n, RI 02910401.944.090000Leo@DeLisiAndGhee.comBUSINESS VALUATIONSARE ALL WE DO. ALL DAY.EVERYDAY.Napoleon “Nappy” Brito Managing PartnerOne Richmond Square Suite 125B (401) 421-5705 / FAX (401) 421-5701Providence, Rhode Island 02906www.riprivatedetectives.comHabla Españolfrozen by court order. MortgageGuarantee’s claim was that the amountsin Groff’s fund should be granted tothem since they had made CUCF whole.Mortgage Guarantee’s claim was basedupon the fact that they had placed CUCFin first position by paying the liens leftopen by Attorney Groff. Ergo, theyclaimed the proceeds in Groff’s escrowrightfully belonged to them.The complication of this case developedwith an action commenced by anotherclient of Groff. That client was utilizingAttorney Groff in a probate matter, andshe alleged she had furnished a largeamount of money to Groff under falsepretense and wanted her money returned.Since the court had placed a hold uponGroff’s escrow, the probate client choseto intervene in the real estate suit so thather assets in that escrow account couldbe protected.In discovery, the probate client soughtto elicit communications between Groffand CUCF and also between Groff andthe borrowers. Groff claimed those communicationswere protected by the attorney-clientprivilege and not subject todiscovery. The case eventually found itsway to the Rhode Island Supreme Court,seeking to clarify exactly who AttorneyGroff represented, and subsequent to thatdetermination, what, if any, of those communicationswere truly protected. However,the resulting decision was somewhatbroader than that narrow question.In Groff, the Court wrestled with anumber of factors, including the relationshipGroff had with CUCF, being one ofa select few attorneys permitted to closetheir loans, as well as the written directionsfrom CUCF that Groff was requiredto follow. 3 Another factor the Court consideredwas the client’s ability to choosewho may be used as the Title Attorneyfor the transaction. 4 What the Courtfinally appeared to have settled on is,quite simply, who paid the bills for thelegal work and whether the borrowersaccepted the specific attorney. 5 The Courtpointed to the fact that since the borrowerwould be responsible for paying for theattorney fees, title examination, and thelender’s title insurance (even though thetitle insurance would be only a benefit tothe lender), the Court found the attorneyclientrelationship was formed betweenthe borrower and attorney. 6How 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 ifthey were not his client? The Court statedthat the bank was a “third party beneficiary”to the contractual agreement of theborrower and attorney. The rationalizationwas that the borrower required aloan from the bank and the bankrequired a number of legal actions performedto assure security. The attorney,acting for the borrower, would assurethat those actions were done to satisfythe lender in order to induce them toloan the money. 7What appears missing from the facts,as it probably is in most real estate transactions,was any sort of retainer agreement.The documents signed by theborrowers indicated that, even thoughthe borrowers could have chosen theirown title attorney, they chose to allowthe bank to choose one for them. 8 TheCourt is silent as to what the resultwould have been had the borrowers chosenan attorney not approved by CUCF.However, the result is unlikely altered bythat variation. If the rationale is that theattorney is acting for the ultimate benefitof the client borrower, the approval ofa bank may not preclude the attorney’sduties to both the client (the borrower)and the third party beneficiary (thebank). It is likely that the third partybeneficiary theory would apply to anyattorney based upon the direct benefitderived by the transaction, even if thatattorney was not an approved or preferredattorney of the lender.The Court’s decision may have a farreachingeffect outside of the scope ofreal estate. The decision may open attorneysto new liabilities to potential thirdparty beneficiaries in other matters if,as the Court highlighted, those benefitswere a direct result of the transaction. 9In other fields of practice, such as estateplanning, the potential liability of anattorney may now be heightened.However, there is little doubt that thisdecision certainly places a burden uponthe real estate practitioner in very realand specific ways.If the Court’s ruling is a blanket statementthat the client is the borrower, whathappens next? Assume a borrower is sittingat a table alone with an attorney,signing paper work for a refinance, andasks a bit of legal advice about the loan.In the past, attorneys often rested on thecomfort of not owing a duty to a nonclient.Many, uneasy about expressingCall us today to learn how our qualified business valuators have helped clients with:• Mergers/acquisitions• Business purchase/sale• Succession planning orbuy/sell agreements• Estate and gift taxes• Divorce asset allocation• Adequacy of insurance• Litigation support• Financing• Mediation and arbitrationWant a qualifed, expertbusiness valuation?Count on us.William J. Piccerelli, CPA, CVA ◆ John M. Mathias, CPA, CVA ◆ Kevin Papa, CPA, CVA144 Westminster Street, Providence, RI 02903 ◆ 401-831-0200 ◆ pgco.comWe practice only US Immigration Law with 15 years experience in• IRCA. 1-9, no-match advicefor US employers• Foreign Investor, businessand family visas• Visas for health care professionals• Visas for artists and entertainersImmigration LawyerJoan MathieuCall me if your legal advice mayaffect your clients’ immigration status.Protect yourself and your client401-421-0911• Minimizing adverse immigrationconsequences of crimes• Deportation/removal• All areas of immigration law –referrals welcomeMember and past CFL chapter president of the American ImmigrationLawyers Association. BU Law and MPA Harvard Graduate.Full resume on my web site www.immigrators.comLaw offices of Joan Mathieu, 248 Waterman Street, Providence, RI 02906Rhode Island Bar Journal May/June 2011 23

RICHARD S.HUMPHREYLAW OFFICESRichard S. HumphreyStefanie A. MurphyErin B. McKennaChristina DzierzekDUI / RefusalDUI / Serious Bodily InjuryDUI / Death Resulting401-624-6152www.richardhumphreylaw.comDietel & AssociatesMedical-Legal ConsultingWe help attorneys win their cases!■ Screen or investigate cases for merit.■ Locate and interface with expert witnesses.■ Define deviations from and adherences to the applicablestandards of care.■ Develop written reports for use as study tools by theattorney.■ Many other cost effective services.■ Risk free guarantee.■ 21 years of nursing experience combined with a legaleducation provides a unique perspective to identifymedically related legal issues.■ A free case screening for all new attorney clients■ 401-480-1796 • LisaDietel@aol.comDietelMedicalLegalConsulting.comLisa DietelRN, BSN, JD, CLNCany opinion (and possibly angering theirperceived client, the bank), could easilysay (as they believed) that they were representingthe lender and avoid expressingany legal opinion. Now, that may haveto change. What if a closing occurs thatsubsequently devolves into a contentiousmatter between the lender and the borrower?What position, if any, will theclosing attorney have to take if the attorneywas, and had always been, the representativeof the borrower? Additionally,how muddy will the waters now be sincethe attorney may also owe a fiduciaryduty to the lender?After Groff was decided in RhodeIsland, other states began to address dualrepresentations in the context of realestate closings (see Marsh v. Wallacefrom the Mississippi Federal Court, citingthat attorneys need to clearly indicatewhom they represent to all parties inreal estate closings per their Rules ofProfessional Conduct 10 ). Since the Courtin Groff did not address what effect apre-emptive disclosure by an attorneymay have, it still may be murky as towhether a disclosure that would counterthe assumption of representation thatGroff imposes would clarify the situation.Additionally, the recent problems surroundingerrors in foreclosure actionsin other states should give Rhode Islandattorneys pause as to their true or perceivedrole at any real estate closing.Since a third party beneficiary nowplaces additional liabilities upon theattorney, the answer may hold manymore problems for the practitioner,especially ones who do not address theactual representation issue up-front.Groff may now impact situations thatinvolve potentially confidential communications.What if the borrower asks adviceor reveals a fact about a potential titleproblem on the property in the middleof, before, or after the closing? Revealingthat defect to the bank could violate theattorney-client privilege. Not revealinga known defect could place the attorneysubject to problems with the third partybeneficiary, the bank. Lastly, what dutiesdoes a closing attorney have toward apro se seller in a conveyance closing?What if a deed is prepared to facilitatethe conveyance and an error is made?Does the attorney have duties to bothbuyer and seller? Groff can easily extendto mean that now the sellers are alsothird party beneficiaries.24 May/June 2011 Rhode Island Bar Journal

…Not so fast, counselor. Those oldassumptions may no longer apply.ENDNOTES1 Credit Union Central Falls V. Groff, 2009 RI966 A.2d 1262 (RI Sup Ct, 2009).2 Groff, 1274-753 Groff, 1269-704 Groff, 12735 Groff, 12746 Groff, 12747 Groff, 12748 Groff, 12709 Groff, 1272-310 Marsh V. Wallace, 666 F.Supp.2d 651(S.D.Miss. 2009). ❖Publish andProsper in theRhode IslandBar JournalThe Rhode Island Bar Journal isone of the Bar Association’s bestmeans of sharing your knowledgeand experience with your colleagues.Every year, attorney authors offerinformation and wisdom, throughscholarly articles, commentaries,book reviews, and profiles, to over6,000 subscribers in Rhode Islandand around the United States. Inaddition to sharing valuable insights,authors are recognized byreaders as authorities in their fieldand, in many cases, receive ContinuingLegal Education (CLE) creditfor their published pieces. The BarJournal’s Article Selection Criteriaappear on page 4 of every BarJournal and on the Bar’s websiteat www.ribar.com.Aspiring authors and previouscontributors are encouraged tocontact the Rhode Island BarJournal’s Editor Frederick Massieby telephone: (401) 421-5740 oremail: fmassie@ribar.com.SOCIAL SECURITY DISABILITYMEDICAL MALPRACTICEDonna M. NesselbushJoseph P. MarascoMariam A. LavoieJoseph P. WilsonMark H. GrimmJennifer L. BelangerPaul E. DorseyWilliam Elderkin, Jr.A. Chace WesslingTimothy P. LynchPatrick S. CannonAttorney Referrals WelcomeWWW.M-N-LAW.COMYou know financial planning.We know philanthropy.Talk about a win-win.The Rhode Island Foundation has been a charitableplanning resource for attorneys and professionaladvisors for more than 90 years. Find out how we canhelp you provide a full range of charitable toolsthat offer maximum benefits to your clients.401.427.4044www.rifoundation.orgRhode Island Bar Journal May/June 2011 25

CLE PublicationsOrder FormNAME ________________________________________________________________________FIRM or AGENCY ________________________________________________________________MAILING ADDRESS ____________________________________________________________Cannot be a P.O. BoxCITY & STATE ________________________________________________________________ZIP ________________________EMAIL ADDRESSBAR ID #PHONE ________________________________________________________________________________________________________________________________________________________________________Check enclosed (made payable to RIBA/CLE)Please do not staple checks.Please charge to my credit card checked belowMasterCard VISA AMEX DiscoverExp. Date _________________________Card No. ________________________________________________________Signature ________________________________________________________Please make check payable to:Rhode Island Bar Association/CLEand mail with order form to: CLE Publications, Rhode Island BarAssociation, 115 Cedar Street, Providence, RI 02903.Please do not staple checks.SHIPPING/HANDLING INFORMATIONPlease allow 2-3 weeks for delivery.All books are sent by FedEx Ground.Publication TotalShipping and Handling CostUp to $45.00 $6$45.01 - $75.00 $9$75.01 - $100.00 $12$100.01+ $15Title Book # Price Qty. TotalBANKRUPTCYAvoiding Foreclosure/Loan Modifications 10-14 $40BUSINESSPractical Skills - Basic Commercial & Real Estate 11-02 $70Loan DocumentationPractical Skills - Organizing a Rhode Island 10-15 $45BusinessCommercial Law 2010: Update on Recent 10-12 $40DevelopmentsENVIRONMENTAL LAWResponding to DEM & CRMC Enforcement 09-17 $30ActionsFAMILY LAWPractical Skills - Domestic Relations Practice 11-09 $50Child and Medical Support 09-16 $35QDRO Practice in RI from A-Z 09-13 $40LAW PRACTICE MANAGEMENTLegal Research in 2010 10-09 $25Establishing a Law Firm in RI 09-19 $25Planning Ahead 09-14 $39.95MISCELLANEOUSNegotiating Ethically and Professionally 11-08 TBAPROBATE/ELDER LAWPractical Skills - Planning for and 11-06 $40Administering an EstateMedicare Claim Settlements 09-12 $30Administrative Local Rules PR-10 $65REAL ESTATEThe Ins & Outs of Landlord Tenant Law 11-11 $15(available after 5/15/11)Practical Skills - Residential Closings 11-07 $65RI Title Standards Handbook (through 10/09) TS-09 $35RECENT DEVELOPMENTSRecent Developments in the Law 2010 RD-10 $55)TRIAL PRACTICEDWI Update 11-05 $35Practical Skills - Civil Practice in Superior Court 11-04 $40Practical Skills - Civil Practice in District Court 11-01 $40Practical Skills - Criminal Law Practice in RI 10-13 $50Social Host Law 09-11 $25The Elements of a Trial - The Expert Witness 07-13 $45HIPAA Explained 04-08 $35Model Civil Jury Instructions 03-02 $49.95WORKERS’ COMPENSATIONPractical Skills - Workers’ Compensation 11-10 $40Practice in Rhode Island (available after 6/3/11)Detach HereOFFICE USE ONLYCheck No.__________________________ Amount ______________________________Date Rec’d ________________________ Date Sent ____________________________26 May/June 2011 Rhode Island Bar JournalBooks $ __________________________Shipping & Handling $ __________________________Sub-Total $ __________________________7% R.I. Sales Tax $ __________________________Total $ __________________________

Continuing Legal Education UpdateTo register for CLE seminars, contact the Rhode Island Bar Association’s CLE office by telephone: 401- 421-5740, or registeronline at the Bar’s website: www.ribar.com by clicking on CONTINUING LEGAL EDUCATION in the left side menu.All dates and times are subject to change.May 3TuesdayPractical Skills SeminarDomestic Law Practice in RIRI Law Center, Providence9:00 a.m. – 3:00 p.m.4.0 credits + 1.0 ethicsMay 26ThursdayFood for ThoughtThe Warning Signs of FraudRI Law Center, Providence12:45 p.m. – 1:45 p.m.1.0 creditMay 5ThursdayFood for ThoughtWhen the Bed Bugs BiteRI Law Center, Providence12:45 p.m. – 1:45 p.m.1.0 creditJune 3FridayPractical Skills SeminarWorkers’ Compensation Practice in RIRI Law Center, Providence9:00 a.m. – 3:00 p.m.4.0 credits +1.0 ethicsMay 10TuesdayFood for ThoughtWhen the Bed Bugs BiteCasey’s Restaurant, Wakefield12:45 p.m. – 1:45 p.m.1.0 creditJune 8WednesdayFood for ThoughtThe Warning Signs of FraudHoliday Inn Express, Middletown12:45 p.m. – 1:45 p.m.1.0 creditMay 12ThursdayMay 18WednesdayMay 19ThursdayMay 20FridayMay 24TuesdayFood for ThoughtThe Top Ten Client ComplaintsRI Law Center, Providence12:45 p.m. – 1:45 p.m.1.0 ethicsFood for ThoughtThe Top Ten Client ComplainsHoliday Inn Express, Middletown12:45 p.m. – 1:45 p.m.1.0 ethicsFood for ThoughtWithdrawing From RepresentationRI Law Center, Providence12:45 p.m. – 1:45 p.m.1.0 ethicsA Primer on Bankruptcy Practiceand ProcedureA VLP Seminar co-sponsored with theUnited States Bankruptcy CourtRI Law Center, Providence1:00 p.m. – 4:30 p.m.3.5 credits + .5 ethicsFood for ThoughtWithdrawing From RepresentationCasey’s Restaurant, Wakefield12:45 p.m. – 1:45 p.m.1.0 ethicsSAVE THE DATESRhode IslandBar AssociationAnnual MeetingJune 16 & 17, 2011Featuring over40 excellent CLESeminars and more!Rhode IslandConvention CenterReminder: Bar members may complete three credits throughparticipation in online CLE seminars. To register for anonline seminar, go to the Bar’s website: www.ribar.comand click on CONTINUING LEGAL EDUCATION in theleft side menu.Rhode Island Bar Journal May/June 2011 27

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Beyond the BarAll in The Family:Musical Musings on MobstersOne thing thatseparates Arlene’sstory from similarlythemedshows isthat the content isbased on her ownexperiences asAttorney General.She notes, “forexample, we havean induction sceneof a made manthat is verbatimfrom a wiretap ofRaymond Patriarca’sceremony.”It’s no secret that people are fascinated by criminalenterprises. Clearly, this has helped drive thesuccess of television series like The Sopranos,The Wire, Boardwalk Empire, and the locallyfilmedBrotherhood. While some charactersare created by producers, others are inspiredby real people, adding to the excitement.The Family, a musical written by RhodeIsland Bar Association member Arlene M.Violet, Esq. of Arlene Violet &Law Associates, in Barrington,collaborating with composer/lyricist Enrico Garzilli, gives usa glimpse into Rhode Island’sown crime scene, and, in sucha small state, the people thecharacters are based on maybe hauntingly familiar to manyof us.Arlene was a Sister of Mercyfor twenty-three years, and, forten of those years, she doubledas a public interest attorney.“My interest in law grew duringmy service in the inner city.Folks used to tell me that certainthings couldn’t be done for poorfamilies and elderly folksbecause the law was against it. I wanted to findout if this were true, and if so, how to changeit.” A Boston College Law School graduate, shewas the first lawyer for the Conservation LawFoundation and also served as the lawyer forthe Rhode Island Protection and AdvocacySystem.However, to many, Arlene is known for herterm as Rhode Island’s Attorney General. Whileserving there, she addressed victim’s rights andset up a victim’s unit. She also tackled publiccorruption, focusing on abuses at Rhode IslandHousing & Mortgage Finance Corporation(RIHMFC) and on entities like the now infamousRhode Island Share & Deposit IndemnityCorporation (RISDIC). Arlene also investigatedorganized crime.“Organized crime was a jointfederal and state focus. It was this experience oftalking with so-called ‘made men’ and protectedwitnesses that led me to think that a storyabout them would clear up many of the misconceptions.”Arlene and Enrico started working on TheFamily in 2008. The musical’s storyline containsfamiliar themes, particularly for those whohave watched any of the aforementioned cabletelevision shows. According to Arlene,” theGodfather is worried about his succession sincehis son is reluctant to take over the Mob family,and there are signs that theCommission wants him replaced.The son wants to pursue hisown interests and has his ownfamily problems. One of themob guys goes into witness protection,and his proposed testimonyagainst the Godfather hasramifications for his own family.These respective family problemsconverge in the climax ofthe show.” One thing that separatesArlene’s story from similarly-themedshows is that the contentis based on her own experiencesas Attorney General. Shenotes, “for example, we have aninduction scene of a made manthat is verbatim from a wiretapof Raymond Patriarca’s ceremony.”The Family isn’t Arlene’s first publishedaccount of her experiences as Attorney General.In 1988, Random House published her book,Convictions, and in 2010, she authored a secondbook, The Mob and Me, in collaboration withformer US Marshal John Partington. Arlenehopes her play will move on to other placesafter its Providence run. She notes, “Producerswho expressed an interest in the show will beinvited to attend, since they wanted to see it onits legs.” The Family runs this year from June2nd until July 1st at Trinity Repertory Theatrein Providence. Tickets can be ordered on theirwebsite at www.trinityrep.com. ❖Rhode Island Bar Journal May/June 2011 29

SOLACE, an acronym for Support ofLawyers, All Concern Encouraged, is anew Rhode Island Bar Association programallowing Bar members to reach out, in ameaningful and compassionate way, to theircolleagues. SOLACE communications arethrough voluntary participation in an email-based networkthrough which Bar members may ask for help, or volunteer toassist others, with medical or other matters.Issues addressed through SOLACE may range from a need forinformation about, and assistance with, major medical problems,to recovery from an office fire and from the need for temporaryprofessional space, to help for an out-of-state family member.The program is quite simple, but the effects are significant.Bar members notify the Bar Association when they need help,or learn of another Bar member with a need, or if they havesomething to share or donate. Requests for, or offers of, helpSOLACEHelpingBar Membersin Timesof Needare screened and then directed through theSOLACE volunteer email network wheremembers may then respond. On a relatednote, members using SOLACE mayrequest, and be assured of, anonymityfor any requests for, or offers of, help.To sign-up for SOLACE, please go to the Bar’s website atwww.ribar.com, login to the Members Only section, scrolldown the menu, click on the SOLACE Program Sign-Up, andfollow the prompts. Signing up includes your name and emailaddress on the Bar’s SOLACE network. As our network grows,there will be increased opportunities to help and be helped byyour colleagues. And, the SOLACE email list also keeps youinformed of what Rhode Island Bar Association members aredoing for each other in times of need. These communicationsprovide a reminder that if you have a need, help is only anemail away.Financial solutionsfor RI AttorneysFreeIOLTAAccountsWashington Trust’s Attorney’s Preferred IOLTAaccount is a free checking account that offers nominimum balance requirement, free domestic andforeign wire transfers, and interest paid to the Rhode Island Bar Association.Use this account to manage your client’s large settlement checks, feesadvanced for services not yet performed, or money to pay court fees. For moreinformation about our Attorney’s Preferred IOLTA account, visit your localbranch, call 800-475-2265 or visit www.washtrust.com.Trusted Advisors Since 180030 May/June 2011 Rhode Island Bar Journal

The Origins Of The Governor’sPardoning PowerPatrick T. Conley, Esq.Rhode Island Bar JournalEditorial BoardThe convictions ofJohn Gordon andThomas WilsonDorr inspiredthese same legislatorsto propose aconstitutionalmechanism forpardoning a personunjustly convictedof a crime.The legislative request, sponsored by Newportrepresentative Peter Martin, for GovernorLincoln Chafee to pardon John Gordon, anIrish-American immigrant, hanged in February1845 for the murder of textile magnate AmasaSprague, may attract state and national attention.There is a certain irony to this developingscenario, ignited by writer Ken Dooley’s locallyproducedplay covering this issue, becausethe pardoning power now wielded by thegovernor in Article IX, Section 13 of the StateConstitution was conferred upon him in 1854by the same group of reformist legislators whoabolished the death penalty in 1852. I contendthat both actions, by so-called Dorr Democrats,were made with John Gordon’s execution inmind. The memory of Gordon certainly wasthe foremost concern of those who voted forthe death penalty ban. The convictions of JohnGordon and Thomas Wilson Dorr inspired thesesame legislators to propose a constitutionalmechanism for pardoning a person unjustlyconvicted of a crime.Under the Royal Charter of 1663, the governorwas a mere executive agent of the GeneralAssembly. The charter was replaced in 1843 bythe conservative Law and Order Constitution inthe wake of the Dorr Rebellion. Drafted mainlyby Whigs, who feared executive power (as didtheir English namesakes), the new constitutionkept that branch of government in a weakenedcondition. However, the governor did receivethe “power to grant reprieves, after conviction,in all cases, except those of impeachment, untilthe end of the next session of the GeneralAssembly.” That provision is Article IX, Section4 of our present Constitution.In February 1845, when Gordon was hangedafter a conviction based upon conflicting andcircumstantial evidence, in a trial marred by theanti-Irish Catholic animus of the press and therulings and jury charge of a highly-prejudicialjudge, Law and Order governor James Fennerrefused the request for a reprieve presented tohim by Gordon’s lawyers (all of whom wereassociates and colleagues of Thomas WilsonDorr). Of course, a reprieve is only a temporarypostponement, and, in the immediate aftermathof the nativistic furor generated by theequal rights provisions of Dorr’s abortedPeople’s Constitution, this remedy would onlyhave delayed the inevitable.When Gordon was executed in the yard ofthe old state prison (where Providence PlaceMall now stands), Thomas Dorr was an inmate,having been convicted of treason against thestate in a Rhode Island Supreme Court trial andsentenced to life imprisonment “at hard laborin separate confinement” by Chief Justice JobDurfee, the same partisan judge who had condemnedJohn Gordon to death. Fortunately forDorr, a grassroots liberation movement resultedin his release, but not his pardon, after twentymonths in prison.In the Presidential election of 1844, nationalDemocrats used the slogan “Polk, Dallas, andDorr” to dramatize the liberation effort. InRhode Island, Charles Jackson, great-grandsonof an Irish Protestant immigrant from Kilkenny,led a Dorr Liberation slate to victory in theApril 1845 annual state election. During thiscampaign, many vote-less Rhode Island womenjoined the cause. As a result of these combinedefforts and a national outcry against Durfee’sharsh sentence, Dorr was freed on June 27, 1845.However, even with the liberation, the dominantLaw and Order coalition of Whigs andrural Democrats maintained its control of stategovernment during the late 1840s electingProvidence Journal editor and arch-nativistHenry Bowen Anthony governor in 1849 and1850. Then, as the Whig Party began to divideover the issue of slavery and some rural RhodeIsland Democrats returned to the fold,Democratic reformers, led by Dorr’s unclePhilip Allen, came to power in 1851 with Allenwinning the governorship and. Dorr’s closestfriend, Walter S. Burges, securing the post ofattorney general, chief legal advisor to theGeneral Assembly.The momentum of this victory promptedpro-Dorr legislators to enact the state’s firstsecret ballot law for the prevention of voterintimidation and to pass a resolution restoringDorr’s political rights. Then, in 1852, theyresponded to a forty-three page report by SouthRhode Island Bar Journal May/June 2011 31

Structuring tax-deferred exchangesthroughout the U.S.with Integrity and ExperienceCharles J. Ajootian, Esq.President and CounselRhode Island’s leading Intermediary since 1997.WORKERS’ COMPENSATIONRevens, Revens & St. PierreMichael A. St. Pierre946 Centerville RoadWarwick, RI 02886(401) 822-2900 telephone(401) 826-3245 facsimilemikesp@rrsplaw.com emailAttorney to Attorney Consultations/ReferralsKingstown’s Thomas Robinson Hazardand long-time Dorr ally Ariel Ballou ofCumberland and banned the death penalty.State representative Thomas Davis, amanufacturer and philanthropist, led thefight for that reform. A Dublin-born IrishProtestant immigrant, Davis later becamea U.S. Congressman.These early reform measures werepassed with some Whig support. However,in the state elections of April 1853, Gover -nor Allen emerged victorious, and hisfellow Democrats gained a majority inboth the House and the Senate for thefirst time since the 1830s. Emboldenedby their victory, these reform Democratstwice called for the voters to authorize aconstitutional convention to remedy whatthey considered to be glaring defects inthe Law and Order Constitution.Ominously, these convention referendawere decisively rejected by the electorate.Because the Dorrites could not achievesweeping reform in a convention, theydrafted and approved nine constitutionalamendments. Their proposed amendmentfour gave the governor the power to pardon.Under the provisions of the inflexibleLaw and Order Constitution, an amendmentto that basic law needed passage bytwo successive General Assemblies, witha general election intervening, before itcould be sent to the electors for approvalby a three-fifths vote.Unfortunately, time ran out for theDorr Democrats in the April 1854 annualstate elections. Their alleged radicalismprompted rural Democratic voters todefect. By the end of the decade, thesesmall town electors were firmly attachedto the newly-formed and nativistic Repub -lican Party. They responded to their urbanwing’s support of equal rights for Irishimmigrants as Southern Democrats wouldrespond to the push by the Northernwing of their party to obtain civil rightsfor Blacks a century later. They defectedto the opposition party.The other harbinger of defeat for thereformist Democrats was the emergencein 1854 of the Know-Nothing or nativisticAmerican Party. This brief movementwon the allegiance of many native-bornworkingmen who had previously supportedpolitical reform. In April 1854,the Democrats were ousted and relegatedto a minority status they maintained untilthe so-called Bloodless Revolution of 1935.The first year since their 1854 defeat theywere able to control the governorshipRhode Island’s leading Int32 May/June 2011 Rhode Island Bar Journal

and both houses of the General Assembly.Four of the nine amendments proposedby the outgoing Democratic legislaturewere rejected by the next General Assem -bly. Of the five that did pass, the votersapproved three. The first, dealing withthe certification of voting lists; the second,vesting the pardoning power in thegovernor, with the advice and consent ofthe senate; and a third, providing for oneannual session of the General Assemblyat Newport with its adjournment toProvidence. This amendment effectivelydeprived Bristol, East Greenwich, andSouth Kingstown of their status as statecapitals.The adoption of the amendmentallowing the governor to pardon (whichis not the legal equivalent of exonerate)had been deemed unlikely by the DorrDemocrats. So, in early 1854, before succumbingto the tidal wave of nativism,they passed an act reversing and annullingthe judgment of the Rhode Island SupremeCourt in Dorr’s treason trial. The succeedinglegislature promptly sought anadvisory opinion from that court. Notsurprisingly, it ruled that such an act wasan unconstitutional infringement uponthe judicial process.During the brief ascendancy of the DorrDemocrats, Henry Anthony’s ProvidenceJournal warned against the dire consequencesof removing the “safeguard”in the Law and Order Constitution thatrequired naturalized citizens to own realestate in order to vote or hold office (arestriction not contained in the People’sConstitution). Anthony’s prediction –humorous now, but tragic then – wasthis: “Rhode Island will no longer beRhode Island when that is done. It willbecome a province of Ireland: St. Patrickwill take the place of Roger Williams,and the shamrock will replace the anchorand Hope!”From such men as Anthony, Durfee,newly elected Know Nothing GovernorWilliam W. Hoppin, and those nativistswho came to power in April 1854, neitherJohn Gordon nor Thomas Dorr could ex -pect either justice or mercy. The pardoningprocess set in motion by the DorrDemocrats – a gesture more symbolicthan effectual in its application to Dorrand Gordo – has never been applied toeither of its first intended recipients. Per -haps its time has finally arrived, becausejustice has no statute of limitations.The Gordon Murder Trial is repleteBANKRUPTCYRevens, Revens & St. PierreJames E. Kelleher946 Centerville RoadWarwick, RI 02886(401) 822-2900 telephone(401) 826-3245 facsimilejamesk@rrsplaw.com emailAttorney to Attorney Consultations/ReferralsMARK A. PFEIFFERAlternative Dispute Resolution Serviceswww.mapfeiffer.comBringing over three decades of experience as a Superior Courtjudge, financial services industry regulator, senior banking officer,and private attorney to facilitate resolution of legal disputes.ARBITRATION MEDIATION PRIVATE TRIAL(401)787-6995 / adr@mapfeiffer.com / 86 State Street, Bristol, R.I. 02809Shared office environment for lawyersYou can have a Calart Tower, Providence officeaddress for less than you spend on coffee(401) 467-7771, ext 12 • inquiry@lawyerscollaborative.comLawyerSelect Suitesat LawyersCollaborative®Rhode Island Bar Journal May/June 2011 33

FloridaLegal Assistance StatewideEdmund C. Sciarretta, Esq.Suffolk Law 1970PERSONAL INJURYWORKERS’ COMPENSATIONREAL ESTATE CLOSINGS • TITLE INSURANCEPROBATE ADMINISTRATIONPROBATE LITIGATIONMARITAL & FAMILY LAW • GUARDIANSHIPBANKRUPTCY • CRIMINAL LAWTHE LAW OFFICE OFMICHAEL W. FAVICCHIOServing Your Clientson all Florida Legal MattersProbate •1031 ExchangesReal EstatePersonal Injury andBankruptcyConvenient Offices:825 South Tamiami TrailVenice, Florida 34285Telephone (941) 349-1160Fax (941) 488-9109Email: mfavicchio@favilaw.com117 Metro Center BoulevardSuite 2001Warwick, RI 02886Telephone (401) 946-1850Fax (401) 946-5006Sciarretta & ManninoAttorneys at Law7301A West Palmetto Park Road • Suite 305CBoca Raton, Florida 334331-800-749-9928 • 561/338-9900LAW OFFICE OFH ENRY V. BOEZI III, P.C.U.S. TRADEMARK SEARCHESAND REGISTRATIONSU.S. COPYRIGHT SEARCHESAND REGISTRATIONSU.S. PATENT SEARCHESDOMAIN NAME REGISTRATIONAND DISPUTE RESOLUTIONOFFICE SPACE AVAILABLEWITHIN EXISTING LAW OFFICEINTELLECTUAL PROPERTYLITIGATIONM.I.P. – MASTER OFINTELLECTUAL PROPERTYAMENITIESCONTACTWalk to GarrahyMarc GreenfieldCopier • ParkingOne Ship StreetConference RoomsProvidence, RIFax and Internet 401.274.640067 CEDAR STREETS UITE #105P ROVIDENCE, RI 02903VOICE: 401.861.8080 FAX: 401.861.8081EMAIL: HVBoeziIII@aol.comWEBSITE: www.hvbiiilaw.com34 May/June 2011 Rhode Island Bar Journal

with one-sided evidentiary rulings andprejudicial commentary by Chief JusticeJob Durfee. However, history’s evidentiarycriteria are different from thoseemployed in the courtroom. “We have aright as citizens…” stated famed attorneyand legal scholar Alan Dershowitz, “…toreject the verdicts of the court” whetherthose are convictions (as in the case ofJohn Gordon) or acquittals (as in the FallRiver trial of Lizzie Borden) and decidethe historical truth for ourselves. We mustkeep in mind, warns Dershowitz, of “thelimited though important, role of the juryin Anglo-American law. Its verdict decidesthe case before it on the basis of the ad -missible evidence. But it does not decidethe historical truth.” The conviction ofJohn Gordon is an excellent example ofa divergence between the verdict of ajury and the verdict of history. The latterdemands an exoneration of John Gordonas well as his symbolic pardon.For further information on this topicsee: Patrick T. Conley’s article: RhodeIsland’s Crisis in Constitutionalism: TheDorr Rebellion and the Origins of thePresent State Constitution, in the RhodeIsland Bar Journal’s October 1986 issue.❖Why Outsource Legal Writingand Research?Gain the fresh perspective anoutside attorney can bring toyour case;Provide a sounding board to helpframe and narrow the issues;Weather the inevitable busytimes; andAvoid fixed overhead. Pay only forthe time to complete the projectLaw Offices of Maurene Souza50 South Main StreetProvidence, RI 02903401-277-9822 souzalaw@cox.netLicensed in Rhode Island and Massachusetts.Counting to TenReally Does WorkDeep Breaths: Slow racingthoughts and relax knottedmuscles by breathing deeplyand slowly. Put one hand onyour stomach. Breathe in deeplycount ing to five, hold yourbreath for a count of five, breathout for a count of five and repeatten times. Breathe in throughyour nose and exhale throughyour mouth.(Brought to you by the members ofthe Rhode Island Bar Association’sLawyers Helping LawyersCommittee)BANKRUPTCYLaw Office of Steven J. Hart328 Cowesett Avenue, Suite 3West Warwick, RI 02893telephone: (401) 828-9030facsimile: (401) 828-9032email: hartlaw@cox.netAttorney to Attorney Consultations / ReferralsRhode Island Bar Journal May/June 2011 35

36 May/June 2011 Rhode Island Bar Journal

BOOK REVIEWJust Like Someone Without Mental IllnessOnly More So: A Memoirby Mark Vonnegut, M.D.Roger C. Ross, Esq.Practices in Pawtucket and amember of the Bar’s LawyersHelping Lawyers CommitteeHis was a verylong and troubledroad from anearly diagnosisof schizophrenia,shortly aftergraduating fromSwarthmoreCollege in 1969,to becoming asuccessful practicingphysician.Author Mark Vonnegut, is the son of KurtVonnegut, the noted novelist who gainedprominence, and both critical and commercialsuccess, with the publication of SlaughterhouseFive in 1969. In addition to the literary meritsof Slaughterhouse Five, Vonnegut tapped intothe national mood of disenchantment and angerover the nation’s continued engagement in theVietnam War. That novel and the author tookon iconic dimensions in the late 1960s, particularlyon college campuses, largely due to thenovel’s anti-war theme. Although Vonnegut washighly successful following the publication ofSlaughterhouse Five, never again was his workto achieve the same level of critical or popularacclaim.Mark Vonnegut is a practicing pediatricianin a Boston suburb who, in an informal pollof nurses, was once voted the best pediatricianin the area in Boston magazine. His was a verylong and troubled road from an early diagnosisof schizophrenia, shortly after graduating fromSwarthmore College in 1969, to becoming asuccessful practicing physician. Vonnegut wasborn and raised on Cape Cod. He writes that“craziness runs in the family” and he “can tracemanic depression back several generations.”From a very early age, Vonnegut felt he wasout of step with his contemporaries. When hewas in elementary school, rarely did a day passwhen he did not get into a fight with a schoolmate.His father, who took a peculiar pride inhis own avowed anti-social attitudes, was similarlyproud that his son had no friends. At age10, the author announced to his mother that heintended to kill himself. She dissuaded him byproclaiming that bright youngsters such as hewere meant to save the world and that he, andother like-minded kids, should at least give thatexalted objective a try before attempting somethingas permanent as suicide.In 1958, when Mark was eleven, “theorphans” came. That is the author’s term forthree, young cousins who came to live with theVonnegut family after the tragic deaths of theirparents. Mark’s Uncle Bill was one of forty-eightpassengers who died when their commuter trainran several stop signals and dropped through anopen draw bridge into Newark Bay. A day anda half later, Uncle Bill’s wife died of cancer. Thesudden appearance of the orphans had a salubriouseffect upon young Mark. His cousinSteve was three months older. Steve was popularand, in time, became a three-sport captain inhigh school, as well as class president. Pallingaround with Steve gave Mark the confidence,for the first time, to play sports himself andto engage in social interaction with his contemporaries.Mark went through junior high, highschool, and college “like an unremarkable person.”The operative word in that phrase is like.He felt anything but unremarkable. He seemsto have experienced his early life as a strangerin a strange land, never quite fitting in.Vonnegut matriculated at SwarthmoreCollege where he had a rather undistinguishedacademic record, marked mostly by attaininga 1.8 GPA in his math and science courses, singularlyironic given his ultimate career choice.During his undergraduate years, Vonnegut toyedwith the vague notion of enrolling in divinityschool and joining the Unitarian church as aminister. He later abandoned this idea.After the Kent State tragedy in 1970,Vonnegut became disenchanted with contemporarysociety. He and a group of friends decidedto abandon the modern world and set off forwestern Canada to establish a commune. Theywere going to make a paradise of their universeor learn the reasons why it could not be done.During this period, Vonnegut notes he “wentcrazy for the first time.” Voices in his mindbecame louder and clearer. He suffered whatwas to be the first of three quickly-successiveepisodes resulting in his admission to aVancouver psychiatric hospital with the unlikelyname of Hollywood Hospital. While a patient,he was treated with the standard practices ofthe day, lithium and shock treatments, togetherwith the peculiar favorite of one physician,mega-doses of vitamins. The last, alas, had littletherapeutic or beneficial effect on the patient.When asked during treatment, “Is the radioor TV talking directly to you?”, Vonnegut wasrelieved to learn that someone finally knewwhat was going on.Rhode Island Bar Journal May/June 2011 37

MEMBERSHIP BENEFIT UPDATELaw Firm Retirement Solutions fromthe American Bar AssociationOne of the many benefits of your Rhode Island BarAssociation membership is available through your Bar’spartnership with the American Bar Association (ABA)Retirement Funds Program.The ABA Retirement Funds Program (the Program) was established over 45 years agoby the American Bar Association to meet the unique retirement needs of law firms.The Program brings together nearly 4,000 law firms and $3.5 billion in assets to provideyour firm a retirement solution that offers a fund lineup and services traditionallyonly available to the larger corporate plans.This leverage allows the Program to provide the following services bundled for yourfirm at no out-of-pocket expense and include institutionally priced funds for yourparticipants:» Investment fiduciary trustee and custodial services from Northern Trust, a leadingglobal asset manager that serves 44% of the top 100 corporate plans» Client service and recordkeeping from ING, one of the largest financial servicescompany in the worldCouple these benefits with the fiduciary oversight that the ABA Retirement FundsBoard provides over the entire program, and you have a retirement solution that mayhelp you to hire and retain quality employees, control expenses and manage yourfiduciary responsibility.To learn more about the Program and your many other Rhode Island Bar Associationbenefits. Please go to the Bar’s web site at www.ribar.com, On the HOME page, clickon FOR ATTORNEYS or FOR MEMBERS ONLY, then click on MEMBER-SHIP BENEFITS and scroll down the listings. In addition to introductory copy, theProgram and all other benefits listings feature web links providing Bar members withdetailed information and contacts.Request for RWU Law Review Articles: Rhode Island Bar Association attorneysand judges are invited to submit articles for publication consideration in theRoger Williams University Law Review’s Rhode Island Edition focusing on currentlegal issues and developments within the state. Articles are generally 25-50pages in length, using the Bluebook format for citations. Submissions are dueno later than October 1, 2011. Please direct questions to Rhode Island Editorof the Law Review Mariana Ormonde by telephone: 401-419-6495 or email:mormonde950@g.rwu.edu.While hospitalized, Vonnegut wasdiagnosed as suffering from schizophrenia,a catch-all diagnosis of the day encompassingall measure of illnesses. Muchlater, such a diagnosis was made morestandard, requiring medical history elementsthat were absent in his case. WhatVonnegut actually suffers from is nowknown as bipolar disorder.After a month of hospitalization andintense treatment, Vonnegut began feelingreasonably well and was discharged. Hereturned to his communal friends. Withintwo weeks, he began hearing the voicesagain. He muses, “I really did not knowI was supposed to continue taking thatmedicine.” He was flown back toVancouver and re-admitted to the hospital.When finally discharged, Vonnegutweighed 127 pounds and walked in adrug-induced shuffle. Yet somehow, hewas feeling “normal.”Vonnegut returned to Massachusetts.He started working as a substituteteacher at a high school on the Cape.After a time, he decided he want to bea doctor. So, the 25 year old substitutehigh school teacher, with a recent historyof psychiatric hospitalization, an undergraduatedegree in Religion from a liberalarts college, and a 1.8 GPA in the hardsciences, enrolled in undergraduate mathand science course at the University ofMassachusetts – Boston. During thissame period, Vonnegut wrote The EdenExpress, his first book, recounting hiscommunal experiences and initial breakdown.He also had several articles publishedin national magazines during thistime.After two and a half years at UMass,where he earned straight A’s, Vonnegutapplied to twenty medical schools. Hewas accepted by one, Harvard. In retrospect,Vonnegut is appropriately astoundedthat if only one medical school intwenty was to accept him it was Harvard.By any objective measure, Vonneguthad a very successful early medical career.Upon finishing medical school, he wasaccepted for an internship at MassachusettsGeneral Hospital where he had donesome rotations during medical school.He later completed a residency there.After completion of his senior residency,Vonnegut entered a private pediatricpractice in Boston. During this period,he became increasingly dependent onalcohol noting, “…maybe a few beersafter work, half a bottle or less of wine38 May/June 2011 Rhode Island Bar Journal

with dinner, maybe a shot of bourbonafter dinner.” He found nothing unusualabout this quotidian consumption. “IfI had a drinking problem, I would havehidden it, but I didn’t so I didn’t,” herationalized. Together with the directeffects of his drinking, the author’s denialmechanism was operating in full gear.After more than fourteen years, thevoices returned and Vonnegut “went crazyfor the last time.” The internal dialoguepicked up as if uninterrupted by the passageof time. Acting on the urgings of thevoices, Vonnegut made a full-throatedeffort to launch himself through a closedwindow on the third floor of his home.As the glass and wood framing of thewindow fell harmlessly to the groundbelow, the author rebounded to the floorof the bedroom. His act was compelledby the certain knowledge that if he didnot jump, his life would be viewed as afailure and at least one of his two sonswould die.Some time after his discharge from apsychiatric hospital, Vonnegut met withhis partners and his psychiatrist to tentativelydiscuss his return to the practice.It was a slow process. Five years later, histenuous marriage dissolved. He has reintegratedhimself slowly as a social beingand as a physician. Now, nearly twentyfiveyears from his last drink and his lastepisode of “going crazy,” Vonnegutgained these essential insights: There wassomething wrong with him besides hearingvoices and jumping through windows;and, besides suffering from bipolardisorder; besides drinking uncontrollably,“What was wrong with me was that Icould not love or accept love.” He alsolearned that as hard as addiction is, “it’salways possible to change your perceptionof the world from one where you dodrugs and just about nothing good ispossible to one where you don’t do drugsand good things can happen.” Not toobad for an alcoholic, drug abusing,“crazy” person. ❖Lawyers on the MoveVictoria M. Almeida, Esq., of Adler Pollock & Sheehan P.C., and Past Presidentof the Rhode Island Bar Association, received the Franciscan Friars of HolyName Province’s Francis Medal.Kate Moran Carter, Esq. is now an Associate at Brennan, Dain, Le Ray, Wiest,Torpy & Garner, P.C., 129 South Street, 3rd Floor, Boston, MA 02111.617-542-4800 www.bdlwtg.comR.J. Connelly III, Esq., principal attorney of Connelly Law Offices, was recentlysworn in as the newest member of the Stonington Commission on Aging.Heather F. Daglieri, Esq. is now Administrator of Licensing for the RIDepartment of Behavioral Healthcare, Developmental Disabilities, andHospitals, 14 Harrington Road, Cranston, RI 02920.401-462-0581 hdaglieri@bhddh.ri.govJohn K. Fulweiler, Esq., an Admiralty attorney, has opened his law practice,Fulweiler llc, 150 Airport Street, 2d Floor, Quonset Point, RI 02852.401-667-0977 john@fulweilerlaw.comAndrew M. Gilstein, Esq., Kevin A. Hackman, Esq. and William J. Murphy, Esq.were elected to the VNA of Care New England Board of Trustees.Patrick A. Guida, Esq., of Duffy & Sweeney, Ltd., 1800 Financial Plaza,Providence, RI 02903, was recently elected to the American College ofCommercial Finance Lawyers.401-455-0700 pguida@duffysweeney.com www.duffysweeney.comMorphis A. Jamiel, Esq. was selected for the United States Department of theArmy’s Officer Candidate School Hall of Fame Class of 2011.Melissa Larsen, Esq. announced the opening of her law practice at the MeadowsOffice Park, Unit A - 103, 1130 Ten Rod Road, North Kingstown, RI 02852.401-218-0862 larsenlawri@gmail.com www.larsenlawri.comLouise Marcus, Esq. was admitted to the U.S. Supreme Court Bar on February23, 2011. Marcus Law Offices, 33 College Hill Road, 15e, Warwick, RI 02886.401-331-3300 LMarcus@cox.net MarcusLawOffices.comWilliam P. Rampone, Esq. relocated his law practice to 317 Iron Horse Way,Suite 203, Providence, RI 02908.401-751-4400Vincent Rinaldi, Esq. relocated his law office, Rinaldi Law Offices, LLC, to2374 Post Road, Warwick, RI 02886.401-244-7725 vin@rinaldilaw.net www.rinaldilaw.netJerome B. Spunt, Esq., now in his 55th year at the bar, continues his solo lawpractice at 20 Randall Street, Apt. 4K, Providence, RI 02904.401-274-4044 jspuntlaw@verizon.netFor a free listing, please send information to: Frederick D. Massie, Rhode IslandBar Journal Managing Editor, via email at: fmassie@ribar.com, or by postalmail 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

TITLE CLEARING______________________QUIETING TITLEACTIONSRoger C. RossBlais Cunningham& Crowe Chester, LLP150 Main StreetPawtucket RI 02860TELEPHONE: (401) 723-1122FAX: (401) 726-6140EMAIL: rross@blaislaw.comNone of Your Damn Businesscontinued from page 915 Liptak, Adam, THE TURDUCKEN APPROACH TOPRIVACY LAW, The New York Times, December 8,2009:15 The dissenter was Chief Judge Alex Kozinskiof the United States Court of Appeals for theNinth Circuit, in San Francisco. He is a masterof the dissent that might as well be a petitionfor Supreme Court review of the majority’sdecision. This one, protesting his court’s refusalto rehear a case about the privacy rights ofemployees, said the law in that area hadbecome a tangled thicket.“It’s time to clear the brush,” Judge Kozinskiwrote. “We didn’t undertake that chore today,but we’ll have to sooner or later, unless” —nudge, nudge — “the Supreme Court shouldintervene.”16 Rescript at p.117 Recall the role “empathy” played in the recentconfirmation hearings for Justice Sotomayor. See,e.g., Liptak, Adam, SOTOMAYOR GUIDES COURT’SLIBERAL WING, The New York Times, December27, 2010:17 At her confirmation hearings last year, SoniaSotomayor spent a lot of time assuring senatorsthat empathy would play no part in her workon the Supreme Court.That was a sort of rebuke to President Obama,who had said that empathy was precisely thequality that separated legal technicians likeChief Justice John G. Roberts Jr. from greatjustices.18 Concurrence at p. 4.19 The concurrences would have explicitly saidthat there is no constitutional right to informationalprivacy, and Justice Thomas would havedeclared that there is no general right of privacyunder the constitution. It is beyond our presenttopic but worth noting that it is the general rightof privacy that forms the basis of Roe v.Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147,(1973), which Justice Thomas says is a right thatdoes not exist.20 These are discussed at length in Nelson III,supra.21 827 F.2d 836 (1st Cir. 1987)22 Natwig v. Webster, 562 F.Supp. 225 (D.R.I.1983)23 110 F.3d 174 (1st Cir. 1997)24 Id. at 183.25 Dickinson v. Chitwood, 181 F.3d 79 (1st Cir.1998)26 R.I. Gen. Laws § 9-1-28.127 See, In re ADVISORY OPINION TO THE HOUSEOF REPRESENTATIVES BILL 85-H-7748., 519 A.2d578 (R.I. 1987), holding that strict scrutiny mustbe applied to legislative enactments that limit orimpinge “such implied constitutional guaranteesas the right to privacy, Roe v. Wade, 410 U.S. 113,152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147, 176-77 (1973).” Id. at 581.28 Henry v. Cherry & Webb, 73 A. 97 (R.I.1909). This is a fascinating decision, a thoroughdiscussion of which is far beyond the scope of thepresent topic. The court examined the assertionthat the right to privacy was derived from natural40 May/June 2011 Rhode Island Bar Journal

law, in a way that would supercede common lawor constitutional enactment. The court held thatthere is no enforceable effect of “natural law” andtraces Rhode Island legal authority all the way tothe founding of our nation and beyond, to theBritish parliament. The court held:28 Since, therefore, except when expressly limited,the General Assembly exercises all of thelegislative powers of sovereignty possessed bythe British parliament, which is all-powerful,and since acts of that body are tested merelyby the principles of the Constitution, and neverby standard of transcendent rights alleged tohave been reserved by the individual when heentered into society, there is no room in ourconstitutional theory for any transcendentright or instinct of nature except as guaranteedby that Constitution. Id. at 104. [Emphasissupplied]The court goes on at length to distinguish betweenthat which is required by morality and that whichis imposed by law. Lest anyone think that this decisionhas become stale, it was cited approvingly inPontbriand v. Sundlun, 699 A.2d 856 (R.I. 1997),in holding that a tort based privacy right is limitedto that found in R.I. Gen. Laws § 9-1-28.1.29 See, e.g., Palmisano v. Toth, 624 A.2d 314 (R.I.1993), holding that plaintiffs seeking punitivedamages are not entitled to discovery regarding thedefendant’s financial condition until after the courtdetermines, as the result of an evidentiary hearing,that there is a prima facie case meriting the recoveryof punitive damages.30 Herbert v. Lando, 441 U.S. 153, 175 (1979):30 Evidentiary privileges in litigation are notfavored, and even those rooted in theConstitution must give way in proper circumstances.The President, for example, does nothave an absolute privilege against disclosure ofmaterials subpoenaed for a judicial proceeding.United States v. Nixon, 418 U.S. 683 (1974).[Footnote omitted]31 In Hickman v. Taylor, 329 U.S. 495, 501(1947), Justice Murphy wrote:31 Thus, civil trials in the federal courts no longerneed be carried on in the dark. The way is nowclear, consistent with recognized privileges, forthe parties to obtain the fullest possible knowledgeof the issues and facts before trial.[Footnote omitted].But see, Herbert v. Lando, supra, Powell, J. concurring:31 At the 1946 Term, just a few years after adoptionof the Federal Rules of Civil Procedure,this Court stated “that the deposition discoveryrules are to be accorded a broad and liberaltreatment.” Hickman v. Taylor, 329 U.S. 495,507 (1947). The bar and trial courts understandablyresponded affirmatively. As the yearshave passed, discovery techniques and tacticshave become a highly developed litigation art— one not infrequently exploited to the disadvantageof justice. As the Court now recognizes,the situation has reached the point wherethere is serious “concern about undue anduncontrolled discovery.” Ante at 176. In viewof the evident attention given discovery by theDistrict Judge in this case, it cannot be saidthat the process here was “uncontrolled.” Butit certainly was protracted, and undoubtedlywas expensive for all concerned.Under present Rules, the initial inquiry inenforcement of any discovery request is one ofrelevance. Whatever standard may be appropriatein other types of cases, when a discoverydemand arguably impinges on FirstAmendment rights, a district court shouldmeasure the degree of relevance required inlight of both the private needs of the partiesand the public concerns implicated. On the onehand, as this Court has repeatedly recognized,the solicitude for First Amendment rights evidencedin our opinions reflects concern for theimportant public interest in a free flow of newsand commentary.441 U. S. at 179. [Footnotes omitted]32 “A Practical Guide to Discovery & Depositionsin Rhode Island” MCLE, Inc. 2010, § 10.3.2, p.10-12. ❖Please contact us for strictly confidential, free, peer andprofessional assistance for your personal challenges.We are here to help you.Rhode Island Bar Association members and their families may receive confidential andfree help, information, assessment and referral for personal challenges through the Bar’scontract with Resource International Employee Assistance Services (RIEAS) and through themembers of the Bar Association’s Lawyers Helping Lawyers Committee. To discuss yourconcerns, or those you may have about a colleague, you may contact a Lawyers HelpingLawyers Committee member, or go directly to professionals at RIEAS who provide con -fidential consultation for a wide range of personal concerns including but not limited to:balancing work and family, depression, anxiety, domestic violence, childcare, eldercare,grief, career satisfaction, alcohol and substance abuse, and problem gambling.When contacting Resource International Employee Assistance Services, please identifyyourself as a Rhode Island Bar Association member. A RIEAS Consultant will briefly discussyour concerns to determine if your situation needs immediate attention. If not, initial appointmentsare made within 24 to 48 hours at a location convenient to you. Please contact RIEASby telephone: 401-732-9444 or toll-free: 1-800-445-1195.Lawyers Helping Lawyers Committee members choose this volunteer assignmentbecause they understand the issues and want to help you find answers and appropriatecourses of action. Committee members listen to your concerns, share their experiences, andoffer advice and support.Richard Abrams, Esq. 351-5700Brian Adae, Esq. 864-1705Neville J. Bedford, Esq. 348-6723Henry V. Boezi, III, Esq. 861-8080David M. Campanella, Esq. 732-0100Diana Degroof, Esq. 274-2652Sonja L. Deyoe, Esq. 864-3244Kathleen G. DiMuro, Esq. 944-3110Brian D. Fogarty, Esq. 821-9945Jeffrey L. Koval, Esq. 885-8116Nicholas Trott Long, Esq. 351-5070Genevieve M. Martin, Esq. 274-4400Dennis J. McCarten, Esq. 965-7795Joseph R. Miller, Esq. 454-5000Henri S. Monti, Esq. 467-2300Suzette I. Pintard, Esq. 274-4400Roger C. Ross, Esq. 723-1122Adrienne G. Southgate, Esq. 301-7823Deborah M. Tate, Esq. 351-7700Judy Hoffman, LICSW, CEAP, RIEAS 732-9444or 800-445-1195Lawyers Helping Lawyers Committee Members Protect Your PrivacyRhode Island Bar Journal May/June 2011 41

WORKERS’ COMPENSATIONAND SOCIAL SECURITYCONSULTATIONALBERT J. LEPORE, JR.COIA & LEPORE, LTD.226 SOUTH MAIN STREETPROVIDENCE, RI 02903401-751-5522www.Coialepore.comEmail: aleporej@coialepore.comAttorney-to-Attorney ReferralsMARC J. SOSS, ESQUIRE5910 Post BoulevardP.O. Box 110127Lakewood Ranch, Florida 34211(941) 928-0310mjs@fl-estateplanning.comwww.fl-estateplanning.comAvailable to assist you andyour clients in Florida with EstatePlanning, Probate Administrationand Document Review.Just a wingman?continued from page 19care for people with special needs.” 45Organization, in turn, is defined as “anorganized body of people with a particularpurpose.” 46 Under these definitions,RISD’s Board of Trustees, which identifiesthe needs of deaf and hard of hearingand develops educational policies to meetthose needs, appears to have been constitutedas a “body of people with an educationalpurpose.” 47 Moreover, RISD isidentified as an “institution” under RhodeIsland General Law. 48 Therefore, it is logicalto conclude that RISD may be an ESAor “public institution” within the meaningof IDEA and the R.I. Regulations andthus has the “full responsibilities andrights” 49 of a LEA.A bird in the hand’s worth two in thebush: K.K. v. Rhode Island School forthe DeafAs can be seen from the above analysis,this particular issue in Rhode Island isconfounding. RISD appears to not bea LEA under state law but could, quitepossibly, be a LEA under federal law.“It depends” does appear to be a goodanswer, but, regrettably, this article willnot end there. The reason for this is thatneither federal nor state law has fathomedthe possibility of a child havingtwo LEAs at the same time. And, thisparticular scenario seems counterproductive.If a school district, as its own LEA,enrolls a child at RISD, which may be aLEA, would both LEAs retain responsibilityfor the child’s education during theperiod of time in which the child is atRISD? It seems difficult from a policyperspective, as well as from the perspectiveof a child or parent, to have twoco-equal LEAs responsible for a child’seducation, especially if a dispute arisesbetween the LEAs as to the appropriateservices, placement or responsibility forfunding such services or placement. 50K.K. v. Rhode Island School for theDeaf presented RIDE with the opportunityto resolve this issue of first impressionin Rhode Island. 51 RIDE had to resolvewhether a child, legally entitled to aneducation in a city or town in which heor she resides, becomes the sole responsibilityof RISD when the child is enrolledat RISD. It seems contrary to federal andstate law, as well as the public interest, toabsolve a city or town’s school district’s42 May/June 2011 Rhode Island Bar Journal

state and federal responsibilities bymerely enrolling a child at RISD.Consequently, the main question thatthis particular case set to resolve wasthe respective obligations of educatinga child residing in one city or town butattending school at RISD.It seems prudent that one of the LEAsshould be identified as the responsibleLEA for the purpose of educating a child.In conjunction with this theory, the districtargued that K.K., despite being a residentof the Town of Coventry, becamea “resident” of RISD for educational purposes.Essentially, RISD was a LEA, andits responsibility included financial obligationsas well as any procedures thatfederal and state law required. In sum,the district argued, “[if] it walks like aduck, and squawks like a duck, it must bea duck.” 52 However, as discussed above,the analysis is far from the freedom ofcertainty.RIDE disagreed with the district’s truismand, instead, had the district eatingcrow. RIDE concurred with K.K.’s argumentthat RISD was merely a placementand that the district retained its federaland state obligations. In doing so, RIDErelied on the residency requirementsfound in state education law. Specifically,Rhode Island General Laws § 16-24-1and § 16-64-1 require that the schoolcommittee of the town in which a childresides provide a child with a free andappropriate education 53 (FAPE) includingproviding procedural protections. As theresidency of K.K. was not in dispute, RIDEheld that his district of residence wassolely responsible for providing him witha FAPE, and RISD was merely a “specialpurpose LEA” placement. Essentially,RIDE found that two types of LEAs – orducks 54 – exist in Rhode Island.Accordingly, RIDE appears to havedetermined that a child cannot have twoLEAs at the same time in Rhode Island.Instead, “special purpose LEAs” statutorilyexist, one being RISD, but do notobfuscate the obligations of the LEA ofresidence. Instead, the K.K. opinion firmlyprovides that a child’s LEA of residenceis solely responsible for the provision ofa FAPE to that child in Rhode Island. 55This particular analysis did not killtwo birds with one stone though, as itleft open the possibility that LEAs mayhave alternative means to redress theirconcerns. Specifically, RIDE’s opiniondoes not subsume the potential that RISDJune 2011 Annual Bar MeetingFREEWellnessCenterDesigned as a means to promoteBar member health andwellness, the Rhode IslandBar Association and the Bar’sLawyers Helping LawyersCommittee, in partnership withBlue Cross/Blue Shield of RhodeIsland, are offering a free-to-Barmembers,Wellness Center at theBar’s Annual Meeting on June 16thand 17th, 2011, at the Rhode Island Convention Center in Providence.Located in the Rotunda, the Center features a range of free, interesting,healthful and educational activities including:– Blood pressure, cholesterol, and glucose screenings– Chair massage stations offering relaxing shoulder and upper back massages– Nutrition stop by with a health educator or a registered dietician– Sun safety screening with DermaView technology analyzing facial sundamage– Stress management information featuring stress reduction techniques– Body composition screening utilizing non-invasive testing for fitnessindicators– Personal health assessment utilizing a confidential questionnaire…and Lawyers Helping Lawyers Committee members and ResourceInternational Employee Assistance Services staff are available for Bar memberconsultations on a range of physical and mental health issues.Rhode Island Probate Court Listingon Bar’s WebsiteThe Rhode Island Bar Association regularly updates the Rhode IslandProbate Court Listing to ensure posted information is correct. The ProbateCourt Listing is available on the Bar’s website at www.ribar.com by clickingon FOR ATTORNEYS on the Home page menu and then clicking onPROBATE COURT INFORMATION on the dropdown menu. The Listingis provided in a downloadable PDF format. Bar members may also increasethe type size of the words on the Listing by using the percentage feature atthe top of the page.Rhode Island Bar Journal May/June 2011 43

may have obligations under federal law.There is a distinct possibility that RISDis an ESA under IDEA. If this is true, aconflict between federal and state lawis readily apparent. Also, the cogitativecomplications inherent with this matterallow for the terminology “special purposeLEA” to artfully enter this debate asit does not appear in state or federal law.The opinion also does not offer guidanceas to whether a LEA may proceed againsta “special purpose LEA” under state lawif a dispute arises between them, thoughthis is presumed. 56 What is certain,though, is that “special purpose LEAs”and LEAs will most likely not be flockingtogether with this particular issue anytime soon.ENDNOTES1 See R.I. Gen. Laws § 16-24-1.2 R.I. Gen. Laws § 16-26-3.1(2).3 In Rhode Island Local Education Agencies(“LEA”) are akin to school districts. Under theIndividuals with Disabilities Education Act andthe Rhode Island Regulations of the Board ofRegents Governing the Education of Children withDisabilities LEA is defined as: “[a] public board ofeducation or other public authority legally constitutedwithin [Rhode Island] for either administrativecontrol or direction of, or to perform servicefunction for, public or secondary schools in a city,county, township, school district or other politicalsubdivision of the State or a combination of schooldistricts or counties as are recognized in the Stateas an administrative agency for its public elementaryor secondary schools. 20 U.S.C. § 1401(19);34 C.F.R. § 300.28; R.I. Regulations § 300.28.4 K.K. v. Rhode Island School for the Deaf andthe Coventry School Department, Rhode IslandDepartment of Education Commissioner ofEducation Decision, #09-007 (April 1, 2009).5 See Supra note 2.6 See Supra note 2.7 In beginning the analysis, one is reminded ofCircuit Judge Friendly’s opinion in FrigalimentImporting Co. v. B.N.S. International Sales Corp,190 F.Supp. 116 (S.D.N.Y. 1960), where the determinationof “what is a chicken” depended onHolmes’ assertion that the agreement of twoexternal signs (i.e., that two parties said the samething rather than meant the same thing) was mostimportant when analyzing a contract. And, thisassertion, though applied to contract interpreta-Litigation communicationsisn’t about spin.The Perry Group, a Rhode Islandbased communications firm, specializes in enhancingand protecting the reputation of organizations facinglitigation or business crisis.Litigation communications isn’t about spin. It’s aboutsetting the record straight before somebody elsedefines the issues and causes damage to your client’sreputation.The Perry Group provides strategic counsel and mediarelations support to companies facing litigation instate and federal courts across the country.TEL: 401-331-4600 www.perrypublicrelations.comtion, is appropriate for the analysis as RISD mustbe defined. Essentially, it must be determinedwhether the General Assembly “said the samething.”8 Such v. State, 950 A.2d 1150, 1156 (R.I.2008)(citing Moore v. Ballard, 914 A.2d 487, 490(R.I. 2007).9 State v. Greenberg, 951 A.2d 481, 489 (R.I.2008) (citing Henderson v. Henderson, 818 A.2d669, 673 (R.I.2003).10 Id.11 Id.12 Id.13 Oxford American Dictionary, 1193 (2005).14 See R.I. Gen. Laws § 16-26-3.1(2).15 See Supra note 2.16 “Operate” has several viable definitions including:“function in a specified manner”; “be in effect”;“manage and run”; or, “managed and run in acertain way.” Oxford American Dictionary, 775.17 See R.I. Gen. Laws § 16-60-1(a).18 See R.I. Gen. Laws §§ 16-60-1(a) and (b).19 Id.20 R.I. Gen. Laws § 16-60-4(3).21 Id. at § 16-60-4(6).22 Id. at § 16-60-4(7).23 See R.I. Gen. Laws § 16-26-3.1(2).24 R.I. Gen. Laws §§ 16-26-3.1(5) and (6).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 § 16-2-5.32 See R.I. Gen. Laws § 16-26-3.1(c)(3).33 Compare R.I. Gen. Laws § 16-26-2 with § 16-60-4(3).34 “[Section] 300.116, consistent with section612(a)(5) of the Act states that the determinationof an educational placement of a child must bebased on a child’s Individualized EducationalProgram (IEP). The Department’s position is thatplacement refers to the provision of special educationand related services rather than a specificplace.” Fed. Reg. Vol. 71 No. 156, 44687 (August14, 2006). In other words, educational placementis not location driven but rather defines the servicesto implement a student’s IEP. See ConcernedParents & Citizens for Continuing Education atMalcolm X v. New York City Board of Education,629 F.2d 751 (2d Cir. 1980)(stating educationalplacement refers to the general educational programof child); Board of Educ. Fo. Cmty. HighSch. No. 218 v. Illinois State Bd. Of Educ., 103F.3d 545, 548 (7th Cir. 1996); Weil v. Board ofElementary & Secondary Education, 931 F.2d1069, 1072 (5th Cir. 1991)(collecting cases interpretingplacement as general educational program);Tilton v. Jefferson County Bd. Of Educ., 705 F.2d800 (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).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 ofthe institution previously existing under the provisionsof this chapter as the Rhode Island Institutefor the Deaf is changed to Rhode Island Schoolfor the Deaf, and shall be known as Rhode IslandSchool for the Deaf.”).49 Fed. Reg. Vol. 71 No. 156, 46565 (August 14,2006).50 In contrast it does seem that this particularscenario may be productive if both RISD and theLEAs agree as to every aspect of a child’s education.Unfortunately, as K.K. v. Rhode Island School ofthe Deaf implies this is not always the case.51 As far as this author could determine RhodeIsland’s statutory framework provided that theseissue are also ones of first impression in the country.It should be noted however, this statementreflects an analysis that is limited to case-lawwhere a final judgment was rendered.52 See K.K. v. Rhode Island School for the Deafand Coventry School District, 09-007, 4 (April 1,2009)(“Coventry argues as follows: ‘RISD is theLEA pursuant to Section 16-26-3.1(c)(2) of the R.I.Gen. Laws…As Judge Selya noted in the case ofCarroll v. Capalbo (citation omitted), ‘there is afair 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 disabledstudent’s unique needs. See 20 U.S.C. § 1412(a);34 C.F.R. 104.33(b); 34 C.F.R. §§ 300.324; RIRules & Regulations § 300.346; see also 20 U.S.C.§ 1400 (stating purpose of IDEA is “to providespecial education and related services designed tomeet [a child’s] unique needs and prepare them forfurther education, employment, and independentliving” and “to ensure that the rights of childrenwith disabilities and parents of such children areprotected.”).54 See K.K. v. Rhode Island School for the Deafat 4-5 (“Ducks may be split into two main groups…. In our view a similar dichotomy exists, at leastin an ontological sense, obtains with regards toLEAs. That is to say, that when it comes to specialeducation, there are at least two sorts of LEAs inRhode Island.”).55 See also R.I. Gen. Laws § 16-64-2 (If a childbecomes a resident of another LEA the previousLEA is no longer responsible for the educationunless the Commissioner of Elementary andSecondary Education orders otherwise).56 See R.I. Gen. Laws § 16-39-1(“Parties havingany matter of dispute between them arising underany law relating to schools or education mayappeal to the commissioner of elementary and secondaryeducation who, after notice to the partiesinterested of the time and place of hearing, shallexamine and decide the appeal without cost to theparties involved.”). ❖NANCY E. MUENCHINGERAttorney-at-LawCross-cultural negotiations and expertise in French lawAvocat au Barreau de Paris15 Happy Valley RoadWesterly, RI 02891 USA Tel (401) 596-1494Licensed in RI, CT & MAnancymuenchinger@yahoo.comDENISE C. PAULSONProfessional Spanish and Portuguese InterpreterServices in legal and medical settings.• Fluent in 3 languages.• Professionally trained at Boston University withemphasis in legal and medical interpreting.• Experience in legal and medical settings including incourt, depositions, arbitrations, mediations, generalhospital and emergency rooms.denise.paulson@comcast.net • Cell # 508-965-5556Rhode Island Bar Journal May/June 2011 45

In MemoriamAlbert Knight Antonio, Esq.Albert Knight Antonio passed away onMarch 20, 2011. He was Vice Presidentand Branch Manager of CommonwealthLand Title Insurance Company inProvidence, RI, and admitted to practicein Rhode Island, Massachusetts andFlorida. He was First Vice President ofNew England Land Title Association,a Lifetime Fellow in the Rhode IslandBar Association, and Chairperson forthe Bar’s Title Standards and PracticesCommittee. He previously worked forformer US Attorney General JanetReno as Legal Advisor for the DadeCounty Public Safety Departmentand had served as a police officer inBarrington, RI. Albert served on thePlanning Board for the Town ofRehoboth, MA, as a member of theBoard of Directors of Community &Teachers Federal Credit Union of EastProvidence, RI, and as a member ofthe Standing Committee at TrinitarianCongregational Church in Norton, MA.Albert was an avid runner and accomplishedathlete. With his daughterKaren he formed the LandAmericarunning and walking team. He coachedbaseball and basketball teams fornumerous organizations including thePawtucket Boys and Girls Club, theNewman YMCA, Dighton-RehobothLittle League, the Rehoboth Congre -ga tional Church, and the AmateurAthletic Union. He was named YMCAVolunteer of the Year in 1995. Albertis survived by his wife, Karen ElaineKuhn Antonio and his children andtheir partners: Karen Elaine DeQuattroand her fiancé Andrew Forber;Matthew Antonio; Michael Antonioand his wife Kristen Marie; KristenEmily McDonough and her husbandDylan; Katherine Antonio and herfiancé Justin Pontes; Nicholas KnightAntonio; Kylie Noelle Antonio; andLauren Pollard.Paul E. Phillips, Sr., Esq.Paul E. Phillips, Sr., 61, passed away onFebruary 25, 2011. A lifelong Providenceresident, he was a son of Ruth B. Phillipsof Warwick and the late Milton Phillips.He was the former husband of JoAnnMarzocch Phillips. Paul was a notedRhode Island musician for many years,having recorded for RCA records as amember of the Blue Jays and touringinternationally with The Buddy RichBand. Later in life he returned to school,graduating from Brown University andNew England School of Law, and wasan attorney at the Law Office of Paul E.Phillips, P.C. in Providence. Paul was amember of the Providence Federation ofMusicians and a former member of TempleBeth-El. He was the devoted father ofPaul E. Phillips, Jr. of Chelmsford, MAand Michael V. Phillips of Philadelphia,PA. and the brother of Gary J. Phillipsof Buffalo, NY.William H. Priestley, Esq.William H. Priestley, 43, of EastGreenwich, passed away on April 8, 2011with his beloved wife of twelve years,Kinda Remick Priestley, by his side. Bornin Providence, a son of the late JosephA. and Beverly M. Priestley, he grew upin Barrington and Westerly. Bill was agraduate of St. Paul’s School, a cum laudegraduate of Colby College, and a cumlaude graduate of Boston UniversitySchool of Law. He worked at EdwardsAngell Palmer & Dodge LLP in theLitigation Management Department. Hewas admitted to the Rhode Island andMassachusetts Bars and was a memberof both state Bar Associations. He wasas a member of the Colby Woodsmen’sTeam and Outing Club, on the golfcourse, and on the ski slopes, a recrea -tional singer/songwriter and a mentor forRhode Islanders Sponsoring Educationmentor. In addition to his wife he is survivedby his four children, Georgia, 7,twins Harry and Owen, 5, and EmmaRemick Priestley, 20 months, his brotherJoseph A. Priestley, Jr., and sisterCarole A. Priestley, both of EastGreenwich, and sister and brother-inlaw,Pamela Priestley O’Connor andJames F. O’Connor, Jr. of Wakefield.S. Harold Skolnick, Esq.S. Harold Skolnick, 95, passed awayon November 25, 2010. He was bornon June 17, 1915 to David and ElsieSkolnick in Woonsocket, RI. Haroldhad a private law practice in Miami,retiring in 1986. He graduated fromAmherst College and BostonUniversity Law School. During WorldWar II, he served in the US ArmyOrdnance Department in Italy andAfrica and retired as a Lt. Colonel.He was a benefactor of MassachusettsGeneral Hospital in Boston, Technionand Amherst College. Haroldbelonged to the Shriners and Elks,and he was a 32nd degree Mason.He enjoyed going to American BarAssociation meetings with his familyeach year. He is survived by his lovingwife Shirley, and his children JudiLapinsohn, Steve and SusanLapinsohn, and Ilene and Bob Eber.Please contact the Rhode Island BarAssociation if a member you knowpasses away. We ask you to accompanyyour notification with an obituarynotice for the Rhode Island BarJournal. Please send member obituariesto the attention of Frederick D.Massie, Rhode Island Bar JournalManaging Editor, 115 Cedar Street,Providence, Rhode Island 02903.Email: fmassie@ribar.com, facsimile:401-421-2703, telephone: 401-421-5740.46 May/June 2011 Rhode Island Bar Journal

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