The Grand Finale...or is it?

Below you will find 3 articles that will help you sort out the latest Ethics Commission fiasco.  Also see page on the Ethics Commission for more.

1/13/2002
Ethics panel can't punish lawyers
• A state Supreme Court ruling frees public officials who are lawyers from state ethics rules -- and allows the Ethics Commission to drop a case against John Harwood.

BY JONATHAN D. ROCKOFF
Journal Staff Writer

Last summer, the Rhode Island Supreme Court issued a narrow, nine-page opinion regarding who could practice law before state boards.  It was a procedural matter, the kind that courts consider all the time. The court ruled that a Boston law professor should have asked for its permission earlier, but it would let him continue his work in the state.   There was little, if any, indication that the decision concerned anything more than an Illinois energy company's efforts to build a 350-megawatt facility in North Smithfield.   But it did.  It furnished the Ethics Commission with a reason for dropping a case that had given it so much discomfort: the ethics complaint filed against the powerful Speaker of the House John B. Harwood.

During a secret session, days before Thanksgiving, the board refused to investigate allegations that Harwood had broken a conflict-of-interest rule by practicing law before two state agencies.  It's not that Harwood didn't do the work. The commission's lawyer and lawyers on the commission argued: The Supreme Court, by declaring its "sole" authority over the practice of law in Rhode Island, had told the commission it could not consider Harwood's case at all.  "The Supreme Court," said Richard E. Kirby, a lawyer in Providence who was recently elected the commission's new chairman, "was telling us that the regulation interfered with their jurisdiction."   The Ethics Commission's decision, in effect, created one class of public officials subject to state ethics rules and one class that isn't. The rules govern public officials who aren't lawyers, but not those who are.

"The Ethics Commission," said Mel Topf, a member from 1988 to 1994, "has indeed given lawyers effective immunity from the Code of Ethics."  ALTHOUGH LAWYERS must be licensed to practice law in Rhode Island, for years lawyers from out of state worked freely before state agencies, boards and courts.  They simply got approval from the tribunal they were appearing before, and they were accompanied by a lawyer licensed to practice law in Rhode Island.  Then, early last year, the lawyer for Thomas D. Goldberg, a Pawtucket lawyer serving on the Ethics Commission, challenged the special counsel investigating conflict-of-interest allegations against Goldberg and two other commission members.

A watchdog group had complained that Goldberg and the two others, all lawyers, broke state ethics rules by participating in a commission vote to allow lobbyists to make gifts to state officials.  The group alleged the three commission members worked at firms with ties to lobbyists.  The Ethics Commission hired Daniel I. Small, a prominent Boston criminal-defense lawyer to investigate.  Small had found that Goldberg broke conflict-of-interest rules because Goldberg's brother and law partner is a former Senate Minority Leader who now lobbies at the State House. (Lobbyist Robert D. Goldberg is married to Supreme Court Justice Maureen McKenna Goldberg.)  Small was wrapping up his investigation when the Supreme Court stepped in.

In a one-sentence order, the court rejected Small's request for permission to work in Rhode Island.  Shortly afterward, the Ethics Commission fired Small.  A few weeks later, it fired Martin F. Healey, the commission's longtime executive director, who had hired Small. And within a few more weeks, it dismissed the complaints against its members.  STEVEN E. FERREY , the Boston law professor who represented the Illinois power company, asked the Supreme Court for permission to work in Rhode Island only because of the flap over Small.  Ferrey helped prepare the application to the state Energy Facility Siting Board for a power plant in North Smithfield. And after the Small decision, power plant opponents challenged Ferrey's status in Rhode Island.

In a 4-to-1 decision, the court allowed Ferrey to continue his power-plant work from that day on. But the court said Ferrey's previous work was illegal, even though the Energy Facility Siting Board had approved his participation.  "This Supreme Court alone," the unsigned opinion said, "possesses the sole authority to determine who may, and who may not, engage in the practice of law in this state. No municipal or state board, agency or commission shares in that authority, and none has ever been delegated by this Court to any municipal or state board, agency or commission."   The ruling, which makes no mention of state ethics rules or the state Ethics Commission, was nevertheless extreme, national experts said.  Although state courts have long had rules barring unlicensed out-of-state lawyers from practicing law, the nature of lawyering has changed as business crosses state and even national lines.

So many state courts around the country are refusing to follow the rules and are sanctioning work by unlicensed out-of-state lawyers, the experts said.  The Ferrey decision also runs counter to an effort by an American Bar Association committee to open all courts to out-of-state lawyers. In response to that effort, Chief Justice Frank J. Williams established a task force to look at the issue. 
The task force has submitted a report to the chief justice, and there should be a public hearing on the recommendations in a month.  Williams declined to discuss the recommendations until other justices see them and the report becomes public. The Ethics Commission's interpretation of the court's decision is not on the task force's agenda.

THE UNLIKELY marriage of the Supreme Court's decision and the Ethics Commission began last February when The Providence Journal published an article saying the speaker had represented law clients before the state Departments of Business Regulation and of Environmental Management a total of four times.  Several days later, a watchdog group filed an ethics complaint.  Operation Clean Government accused Harwood of violating an ethics rule that bars public officials from representing clients before government agencies. The purpose of the rule is to prevent public officials from using their office for private gain.

The Ethics Commission established the rule during the Banking Crisis of 1991 to insulate government agencies from the pressure that lawmakers can exert on their budgets and responsibilities.  Since the rule's passage, a number of state and local officials have asked the commission whether they could practice law before, say, the Coastal Resources Management Council, or the Cranston City Council.  USUALLY, the commission has considered and approved such work.  But from the beginning, it never appeared that the commission would even vote on the Harwood complaint as members began recusing themselves citing their own conflicts of interest.

Five of the board's nine members eventually recused themselves last spring, all but one of them a lawyer. Two others temporarily recused themselves pending further examination of their potential conflicts.  The recusals left the commission without the quorum required to consider the complaint. 
So the board asked the attorney general's office for guidance on finding a quorum to hear the case. The attorney general's office said the commission should pick names out of a hat until forming a quorum.  But the board refused.  Two members had resigned and a third's term had expired, and the commission said it wanted to wait for replacements to be named.  The Harwood complaint appeared regularly on the board's agenda, but the commission kept delaying its consideration.

Just before Thanksgiving, on Nov. 20th, the commission finally took up the complaint after a sufficient number of members decided they could hear the case.  Harwood's lawyer acknowledged that the speaker had practiced law before state agencies, but the lawyer argued the Ethics Commission couldn't regulate that conduct because it was the Supreme Court's exclusive province.  The commission's staff recommended dropping three of the four claims against the speaker. But it urged the commission to further probe a claim that Harwood had represented a client before DEM.  Yet the staff reminded the commission to "be cognizant" of the Supreme Court's decision in the Ferrey case.

According to George E. Weavill Jr. and others, commission members repeatedly asked the board's legal counsel, William J. Conley Jr. about the case's significance.   "Conley gave his assessment of the situation, and the commission relied on his opinion," Weavill recalled. "He used the Ferrey decision and quoted the language in that decision."  Given the Ferrey ruling, Conley told the commission, a court would probably overturn any action the board takes against Harwood.  Commission members didn't think a losing fight was worth the expense.  "I thought," Weavill said, "we should run the course a little bit further to see if there were any issues that needed to be addressed." "But unless there was something new that came up, it probably was not going to go anywhere."  Goldberg, Francis J. Flanagan, Chairman Kirby, James Lynch Sr. and Patricia M. Moran voted to dismiss the complaint.  Weavill, a former president of the Rhode Island State Council of Churches who was recently appointed to the commission, was the lone member voting to pursue the case against Harwood.

IN ONE FINAL twist to this story, Harwood's lawyer on the ethics complaint was also the one who argued Ferrey's case to the Supreme Court.  Lauren E. Jones said he had mixed feelings upon seeing the Ferrey ruling: it penalized Ferrey, but helped Harwood.   Further, Jones said he didn't need the ruling. He said he was already preparing to argue that only the Supreme Court, not the commission, could oversee Harwood's law practice.  "It only gave me a better quote," Jones said. 
Jones said that only "conspiracy theorists" think the Supreme Court was trying to influence the case.  The lawyer also expressed surprise that the Ferrey ruling figured so prominently in the commission's decision making.  "I am surprised they would perceive it as a statement directed at them," Jones said. "I suspect that's more of a reflection of the position that they're in."  Rather, Jones and court sources say the court was merely trying to make sense of a complicated concept and wrest control of an unruly process.  "There was so much else going on here," Jones said. "I don't think it meant the Supreme Court was looking out their seventh-floor window and saying, 'Let's protect the speaker.' "   COMMISSION MEMBERS acknowledge that the Harwood decision has not played well with the public. But they are asking Rhode Islanders to give the commission a second chance.

"Our work will speak for itself in the long run," said Chairman Kirby, who the speaker nominated to the commission. "Things will get better now. The courage of our convictions will come through."  The critics aren't convinced.  "It was the wrong decision," said Richard W. Morsilli, chairman from 1992 to 1997. "Either they didn't get the right advice from legal counsel or they were concerned, 'This was a powerful person in Rhode Island, and we're not going to touch it.' "   If he were chairman, Morsilli said, the board would have done what it thought was right. And if that meant defending itself in court, so be it.  Rae B. Condon, a lawyer herself and the former executive director of the old Conflict of Interest Commission, said lawyers don't belong on the commission.  "Lawyers should be the hired hands. They give advice. And certainly now, there's proof that having lawyers causes problems," Condon said.  "When you have a lot of lawyers on a commission, even one lawyer, laypeople have a tendency to bow to their opinions," she added. "The layperson says, 'Gee, the lawyer's got to know the law.' "

1/17/2002
Harwood case: Begging to differ with ethics panel by M. Charles Bakst
You may well look at the Ethics Commission's November dismissal of a complaint against House Speaker John Harwood and say, "Huh?"  After reading a recap of the case in last Sunday's Journal and then, on Monday, discussing the matter with Supreme Court Chief Justice Frank Williams, I'm still struck by it.  The case, stemming from a Journal story, involved Harwood's work as a private lawyer, most notably representing a client before the Department of Environmental Management. Operation Clean Government complained this violated a commission regulation that, in simplified terms, bars lawyer-legislators from throwing their weight around by practicing before state agencies.

The commission decided to drop the case. Jonathan Rockoff's Sunday story portrayed a panel scared off by a Supreme Court ruling last summer on who could practice law before state boards. The ruling involved a Massachusetts lawyer and the Rhode Island Energy Facility Siting Board. The justices said that the Supreme Court "possesses sole authority to determine who may, and who may not, engage in the practice of law in this state."    Ethics chairman Richard Kirby said in Sunday's story, "The Supreme Court was telling us that the regulation interfered with their jurisdiction." Hmm.

In dismissing the complaint against Harwood, the commission overrode recommendations by Executive Director Kent Willever and prosecutor Katherine D'Arezzo that the case needed more investigation. D'Arezzo tells me such overrides are an occupational hazard of staff work. Willever is satisfied that commissioners wrestled "mightily" with the issues.  I worry that the commission looked like it was caving in, prematurely buying Harwood lawyer Lauren Jones's arguments that only the judiciary could bar lawyer-legislators from going before state agencies. Jones relied partly, though not solely, on last summer's Supreme Court ruling.

Rockoff depicted the commission, with advice from legal counsel William Conley Jr., as hung up on the ruling and afraid it presaged that any action it might take against Harwood would probably be overturned.  I spoke with Chief Justice Williams about the ruling on the out-of-state lawyer coming here to practice. I asked, "Does that ruling mean -- yes or no -- that a lawyer-legislator can appear before DEM or not?" He replied, "We didn't decide that issue. That was not the issue that was before us."

I think the commission should have pursued its probe of Harwood and, if warranted, pressed prosecution, being ready, if need be, to defend itself in court.  Harwood insists to me there is another reason the complaint was baseless. He contends that participation in the DEM administrative hearing process falls under an ethics code exception for cases in a state "court of public record." (In various previous cases, the commission suggested otherwise.)  As the storm over his involvement was breaking last year, Harwood withdrew from the DEM case and said that, to avoid public perception problems, he would refrain for the rest of his House career from representing clients before state agencies. But because of the dismissal of the complaint against him, he indicates to me he may now amend that stand.  Don't think Harwood, 50, is going, "Phew, I barely escaped." He calls the dismissal a "no-brainer." He is chipper. He is thriving. Years ago, he told a college coach he'd some day be governor. But that, Harwood says, was before he realized it's better to be speaker.   M. Charles Bakst, The Journal's political columnist, can be reached by e-mail at mbakst@projo.com

1/11/2002
Bar Association's ploy to shoot the messenger
RHODE ISLAND Bar Association President Vincent DiMonte has entered the imbroglio surrounding the state Ethics Commission's firing of Special Counsel Daniel Small, and the state Supreme Court's guidelines governing out-of-state lawyers practicing in Rhode Island, in a most demeaning manner, by attacking the credibility of The Journal.

In Mr. DiMonte's Jan. 8 commentary ("The Journal's rehashed arguments"), he accuses The Journal of creating facts that do not exist, and relying on innuendo to advance biased arguments. What Mr. DiMonte fails to recognize is that it was members of the Supreme Court who may have employed The Journal's pages to use these very mechanisms. This matter has evolved into a case of accusations made by Supreme Court justices and now, unfortunately, joined by the head of the Rhode Island Bar Association.

Recall the following: The Journal reported on March 23, 2001 ("Ethics panel lawyer practiced illegally, justice contends") that Supreme Court Justice John Bourcier lambasted lawyer Small for "engaging in criminal activity." Moreover, Justice Bourcier declared Small guilty of "engaging in criminal activity" without indictment or trial by a jury. This intemperate declaration of guilt -- without due process -- by a Supreme Court justice was shocking and unprecedented, and rendered by one of the two justices who "objectively" ruled to deny Special Counsel Small the right to practice law in Rhode Island.

Victoria Lederberg, the other justice who joined Bourcier in voting to deny Mr. Small that right, in her opinion piece in The Journal ("In defense of R.I. Supreme Court," March 23) blamed the debacle on the media and on Small. With regard to Mr. Small, the justice quoted extensively from criminal statutes, although no criminal case was before the court.

In an earlier case, Justice Lederberg completely disregarded these same statutes when she joined the opinion praising lawyer Geoffrey Hazard Jr. for his opinion that the separation-of-powers regulation, which would have prohibited legislators from serving on Rhode Island boards and commissions, was beyond the power of the Ethics Commission. Justice Lederberg heaped this praise on Mr. Hazard, even though he had also practiced law without first seeking permission from the Supreme Court.

If Mr. DiMonte is truly concerned about innuendo, bias, and facts that do not exist, he should be demanding an explanation of a Jan. 31 letter sent by lobbyist Robert Goldberg (husband of Supreme Court Justice Maureen Goldberg) to state Atty. Gen. Sheldon Whitehouse accusing Mr. Small of committing a crime of unauthorized practice of law. A copy of this letter was attached to a memorandum that Thomas Goldberg (Robert's brother) had filed in the Rhode Island Supreme Court protesting the request of Mr. Small to practice law in Rhode Island. (Thomas Goldberg was one of the ethics commissioners being investigated by Dan Small.) I would hope that Mr. DiMonte would agree that allegations as transparently inaccurate and irrelevant as these ought to have been summarily dismissed by the court. Yet, they apparently were not.

Justices Bourcier and Lederberg never issued an opinion explaining their reasons for denying Mr. Small's motion to represent the Ethics Commission. Rather than explain their decision in a legal opinion, these justices went to the press to declare that Mr. Small had been denied the right to practice law in this state because he had committed the crime of not first obtaining their permission. 
Where was Mr. DiMonte in decrying the bias and inaccuracies of the justices and the Goldberg brothers?

On June 15, 2001, Supreme Court Justice Robert Flanders issued a dissenting opinion in the matter involving the court's 2-to-1 decision denying Mr. Small the right to practice law in Rhode Island. Yet on June 19, this majority of two, Justices Bourcier and Lederberg, issued an unusual order directing that Justice Flanders's dissenting opinion not be published.

Justice Flanders's dissenting opinion may hold the key to this puzzle. In it he explains precisely and succinctly why, under law, Mr. Small ought to have been permitted to represent the Ethics Commission in its investigation of certain ethics commissioners. Justice Flanders makes four key points:

1. Granting Special Counsel Small's motion for admission was completely proper under the rule that governs admission by nonresident lawyers to Rhode Island courts. In fact, Justice Flanders was unaware of any instance where the court denied a motion merely because the lawyer involved may have rendered legal services to the client before obtaining court approval to represent the client in the pending or contemplated judicial proceedings.

2. The proper arena to adjudicate unauthorized practice-of-law questions is not in opposing a nonresident lawyer's motion for pro hac vice admission, but in a separate proceeding that specifically addresses whether there has been a violation of law.

3. Opposition to a nonresident lawyer's admission is usually no more than a transparent ploy to undermine the underlying case.

4. There was no rule that specifically governed the provision of legal services by nonresident attorneys to clients outside of the courtroom.

Justice Flanders also stated in this unpublished dissenting opinion, "I believe the Court should adopt an appropriate rule to govern the provision of legal services by nonresident attorneys to Rhode Island Clients outside of the courtroom."

Evidently the Supreme Court agreed, since it issued an order doing exactly that on Sept. 19. It is now clear that pro hac vice admission is necessary for administrative procedures as well as court procedures.

The "facts" surrounding this issue seem to be beyond the grasp of Mr. DiMonte. Mr. Small was conducting an investigation into alleged misconduct by a relative of a sitting Supreme Court justice. By denying a bona fide petition to represent the Ethics Commission, the Supreme Court effectively quashed the investigation.

Is Mr. DiMonte aware that, upon conclusion of his preliminary investigation, Mr. Small was recommending to the commission that there was probable cause to believe that Thomas Goldberg had violated the Ethics Code? Mr. DiMonte should also be aware of the fact that, previous to Special Counsel Small, the Supreme Court handled only the applications from outside attorneys appearing before that court. Other courts, as well as state boards and commissions, considered the requests from the lawyers practicing before them.

The Ethics Commission hired Mr. Small, and has since paid him for his services. Would Mr. DiMonte agree that the commission paying Mr. Small is recognition of his legitimate work as opposed to criminal activity?

Mr. DiMonte, as president of the Rhode Island Bar Association, should be joining The Journal in raising questions that surround this issue and demanding an accounting for this shameful debacle. The citizens of Rhode Island need a strong bar association that is willing to hold the judiciary to a higher standard than is presently the case, not a bar association that shoots the messenger to preserve the status quo. Robert P. Arruda is chairman of Operation Clean Government.