Rhode Island Bar Journal - Rhode Island Bar Association

Rhode Island Bar JournalRhode Island Bar Association Volume 60. Number 5. March /April 2012Common Sense Concerning CorporateEnvironmental ComplianceWhy Rhode Island Needs DefaultSurrogate Consent StatutesHow Financial Decisions AdverselyImpact Medicare & Social SecurityParental Alienation Syndrome in DivorceBook Reviews: Class Warfare & TheDeath and Life of the Great AmericanSchool System

Balancing Our Personal andProfessional LivesWilliam J. Delaney, Esq.PresidentRhode Island Bar AssociationI know both ofyou and Momhave made sacrificesto supportmy Bar work, butmy actions aregrounded in thehonor and privilegeI enjoy as alawyer.The following letter to my daughters addressesa number of challenges I believe many of mycherished colleagues also share.Dear Blair and Jilly,Balancing my responsibilities as a lovingfather and my professional life is not alwayseasy, but it is rewarding. As daughters of aRhode Island lawyer, you have often heardpromises like, “I am leaving the office and comingright home,” only to have me arrive twohours later. I have missed dances, school tripsand even some vacation time due to my practiceand on behalf of the Rhode Island Bar Association.Given your sacrifices, I want to explainwhy the Bar Association is so important to meand to all the other lawyers in our state.I began my involvement with the Bar, twentyfiveyears ago, when I joined several Bar committees.These committees provide opportunitiesfor Bar members to directly participate in advancingand enhancing specific areas of legal practiceand interest. Additionally, Bar committees oftenproduce educational programs for their colleaguesoffered throughout the year and at theBar’s Annual Meeting. Frequently, active membersof Bar committees are elected to the Houseof Delegates, and this was a track I followed.The House of Delegates is a democraticallyelectedgroup of Bar members representing theinterests of all Rhode Island’s lawyers. Delegatesmeet quarterly, discuss important issues affectingRhode Island lawyers, and often take positionson by votes at these meetings.Within the House, some individuals are electedto serve on the Bar’s Executive Committeewhich meets monthly to review the Bar’s financesand identify and deal with matters regardingthe Bar and its members. The ExecutiveCommittee also acts as a sounding board forquestions and concerns raised by any of theBar’s thirty-two committees. Today, I am aproud member of the Executive Committee.The Bar’s Volunteer Lawyer Program helpslawyers provide their legal services to RhodeIslanders who could not otherwise afford thisrepresentation. Serving as a volunteer for thisexcellent program, I have the great pleasure tohelp the less fortunate achieve justice, and I amalways willing to take such cases when needed.Recently, the Volunteer Lawyer Program expandedto assist Rhode Island military veterans andtheir families, and I have had the honor of representingseveral of these veterans who give somuch to their country.The Bar Association often works in partnershipwith the Roger Williams University LawSchool. You both know how much teaching atthe Law School over these past twelve years hasmeant to me, and it was wonderful to have youcome with me to some classes. It is importantfor Bar members to provide students with assistanceand mentoring to better prepare themfor the profession. This fall, the ExecutiveCommittee went to the Law School and metwith Dean Logan and his senior staff membersto discuss common issues of concern and howthe Bar can assist these future lawyers. I hopethese meetings will continue, and that lawschool graduates will become even better contributorsto the legal system and Rhode Island.Right now, the Bar is addressing the challengesmany of our new lawyers are encountering. Lastyear, almost 200 new attorneys were sworn intothe Bar. These new lawyers are facing difficultyfinding jobs and repaying their student loans,and they look to the Bar for help, and the Baris working to address their expectations.I have three months remaining as the Bar’sPresident. I know both of you and Mom havemade sacrifices to support my Bar work, butmy actions are grounded in the honor and privilegeI enjoy as a lawyer. Being a lawyer is great,and serving the Bar provides me the opportunityto give back to those who need my help.And, each year, the number of people needingour help only grows.I have been fortunate to have you accompanyme to Court on several occasions. Havingyou there with me is wonderful. Grandma andGrandpa never had the opportunity to see mein action, and I am happy you have been ableto share some of those experiences with me.The law has been great for me. It fulfills me,and I constantly strive to be a better lawyer, notonly for my clients, but for the legal system aswell. I am so fortunate to be a Rhode Islandlawyer and a member of the Rhode Island BarAssociation. And, every day Mom and I wakeup with each of you, I am even more gratefulfor being a Rhode Island lawyer and treasurehow, although sometimes demanding ouraccommodation, the law has benefited andstrengthened us as a family.I love you very much,Dad ❖Rhode Island Bar Journal March /April 2012 2012 3

LETTER: Response to Modest Proposalsfor Rhode Island Superior Court ReformModest Proposals for Rhode Island Superior Court Reform, by David A. Wollin,Esq., appeared in the Rhode Island Bar Journal, Volume 60, Number 4, January/February 2012 beginning on page 7. The author’s first proposal is that the Courtmandate mediation in all civil cases.We spend a significant portion of our professional efforts either mediating ortraining new mediators. We agree with this suggestion. We disagree with his ideasabout who should mediate and how they should be compensated.Mediation saves parties time and money. Mediations produce more flexible andlasting resolutions than if a Court were to impose a decision. Mediation gives conflictingparties a managed and confidential opportunity to engage in a productiveconversation in which they can talk and listen to each other. Mediation often settlescases, freeing up the Court’s time and closing cases for the attorneys.Mediation’s potential benefits depend upon the mediator’s skill and experience.Mandatory mediation of civil cases would increase the demand for mediators.Attorney Wollin proposes the Bar Association recruit members to serve as mediatorsin exchange for Mandatory Continuing Legal Education (MCLE) credit. We stronglydisagree with this part of his proposal as, we believe, it demeans the training andexperience of the professionals who work as mediators.State law [R.I. Gen. Laws § 9-19-44] requires that for confidentiality and mediatorprivilege to attach to a mediation, the mediator must have either completed at leastthirty hours of mediation training or have two years of professional experience mediating,or have been appointed by a judicial or governmental body. Most professionalmediators pursue far more training than the minimal thirty hours, continuing theireducation and joining professional mediator organizations such the American BarAssociation Section of Dispute Resolution, the Association for Conflict Resolution,or locally, the RI Mediators Association. Some professionals, based upon their skillsand training, litigate personal injuries cases, litigate family issues, handle criminalmatters, do transactional work, estate planning or tax work. Others mediate. All areprofessionals entitled to be paid a reasonable compensation.We find it puzzling that Attorney Wollin thinks that simply any attorney recruitedthrough the Bar Association could successfully mediate a civil case that counsel ontheir own have not been able to settle. We disagree. Clients are entitled to professionalmediators. Further, we disagree that it would be sufficient to compensate mediatorswith the award of MCLE credits. If attorneys expect to be compensated reasonablyfor their time and skill, why would a mediator be entitled to less for his or her timeand skill? We also doubt that performing mediation services in this manner wouldqualify for MCLE credit under the existing MCLE rules and regulations.While we laud Attorney Wollin’s ambitions for improving Superior Court, wewish that he had recognized that not just any lawyer can be an effective mediator andthat professional mediators are entitled to be paid for the value of the work they do.Steven J. Hirsch, Esq. & Bruce I. Kogan, Esq.NORTH PROVIDENCEClass A Office SpaceOne, all-inclusive office in new law offices with high ceilingsand beautiful wood work. Must see to appreciate.Conveniently off Route 295. Three conference rooms withlibrary. Utilities, Parking, Receptionist, Cox Internet,Copier & Fax all included. (401) 580-4511RHODE ISLAND BAR JOURNALEditorial StatementThe Rhode Island Bar Journal is the Rhode IslandBar Association’s official magazine for Rhode Islandattorneys, judges and others interested in Rhode Islandlaw. The Bar Journal is a paid, subscription magazinepublished bi-monthly, six times annually and sent to,among others, all practicing attorneys and sitting judges,in Rhode Island. This constitutes an audience of over6,000 individuals. Covering issues of relevance and providingupdates on events, programs and meetings, theRhode Island Bar Journal is a magazine that is read onarrival and, most often, kept for future reference. TheBar Journal publishes scholarly discourses, commentaryon the law and Bar activities, and articles on theadministration of justice. While the Journal is a seriousmagazine, our articles are not dull or somber. We striveto publish a topical, thought-provoking magazine thataddresses issues of interest to significant segments ofthe Bar. We aim to publish a magazine that is read,quoted and retained. The Bar Journal encourages thefree expression of ideas by Rhode Island Bar members.The Bar Journal assumes no responsibility for opinions,statements and facts in signed articles, except to theextent that, by publication, the subject matter meritsattention. The opinions expressed in editorials representthe views of at least two-thirds of the Editorial Board,and they are not the official view of the Rhode IslandBar Association. Letters to the Editors are welcome.Article Selection Criteria• The Rhode Island Bar Journal gives primary preferenceto original articles, written expressly for firstpublication in the Bar Journal, by members of theRhode Island Bar Association. The Bar Journal doesnot accept unsolicited articles from individuals whoare not members of the Rhode Island Bar Association.Articles previously appearing in other publicationsare not accepted.• All submitted articles are subject to the Journal’seditors’ approval, and they reserve the right to editor reject any articles and article titles submitted forpublication.• Selection for publication is based on the article’srelevance to our readers, determined by content andtimeliness. Articles appealing to the widest range ofinterests are particularly appreciated. However, commentariesdealing with more specific areas of law aregiven equally serious consideration.• Preferred format includes: a clearly presented statementof purpose and/or thesis in the introduction;supporting evidence or arguments in the body; anda summary conclusion.• Citations conform to the Uniform System of Citation• Maximum article size is approximately 3,500 words.However, shorter articles are preferred.• While authors may be asked to edit articles themselves,the editors reserve the right to edit pieces forlegal size, presentation and grammar.• Articles are accepted for review on a rolling basis.Meeting the criteria noted above does not guaranteepublication. Articles are selected and published at thediscretion of the editors.• Submissions are preferred in a Microsoft Word formatemailed as an attachment or on disc. Hard copyis acceptable, but not recommended.• Authors are asked to include an identification of theircurrent legal position and a photograph, (headshot)preferably in a jpg file of, at least, 350 d.p.i., withtheir article submission.Direct inquiries and send articles and author’sphotographs for publication consideration to:Rhode Island Bar Journal Editor Frederick D. Massieemail: fmassie@ribar.comtelephone: 401-421-5740Material published in the Rhode Island Bar Journalremains the property of the Journal, and the authorconsents to the rights of the Rhode Island Bar Journalto copyright the work.4 March /April 2012 Rhode Island Bar Journal

A Common Sense Approach toCorporate Environmental ComplianceDennis H. Esposito, Esq.Roger Williams UniversitySchool of Law ProfessorJenna AlgeeRoger Williams UniversitySchool of Law StudentThe best defenseagainst most deficienciestargeted inenvironmentalenforcement actionsis an effectiveEnvironmentalComplianceProgram…IntroductionEnvironmental laws create a system of liabilitythat burdens businesses and their managers.Strict liability can even attach to past activitieswhich may have been legal at the time of occurrence.Further pitted against the businesses, areenvironmentalists empowered by the citizen suitprovisions of most environmental regulatoryschemes. 1 Given the strength of these forces,developing a common sense compliance programis necessary to help companies navigatethe minefield of environmental regulations andto mitigate legal risks and hazards.The Benefits of Establishing a CorporateEnvironmental Compliance PlanThe tangible benefits of compliance, suchas avoiding the high cost of EnvironmentalProtection Agency (EPA) enforcement actionsor minimizing the impacts of such action, areclear. Even the most basic violations can resultin penalties of $25,000 per day plus any economicbenefit that accrues to the company asa result of noncompliance. 2 These costs arecompounded if the agency determines theresponsible persons at the facility were awareof the noncompliance and failed to take appropriateactions. The additional cost may includecriminal liability for known violations of certainstatutes. Under the Resource Conservation andRecovery Act (RCRA), for example, criminalpenalties can cost up to $50,000 per day 3 andknowing endangerment can cost the corporationup to $1,000,000. 4Furthermore, the personal liability of managementis at stake. Corporate officers cannotisolate themselves from liability by remainingintentionally ignorant of environmental issueswithin their facilities. 5 Therefore, upper levelmanagement should make a concerted effortto ensure compliance and to be aware of actualor potential violations and proposed remedialstrategies.The best defense against most deficienciestargeted in environmental enforcement actionsis an effective Environmental ComplianceProgram (ECP) with routine compliance. Giventhe high cost of noncompliance, the additionalinvestment necessary to create and sustain thesepolicies should be viewed as a prudent investmentand as insurance to protect against frightfulfines and EPA-mandated compliance programs.Enforcement decisions are left to the judgmentof administrative agencies, 6 allowingenforcement personnel to decline enforcementor reduce penalties based on the existence andsophistication of the ECP. Accordingly, theDepartment of Justice (DOJ) gives favorabletreatment to companies with ECPs when itmakes the decision of whether to criminallyprosecute an environmental violation. Thepolicy states, in relevant part:The attorney for the Department shouldconsider the existence and scope of anyregularized, intensive, and comprehensiveenvironmental compliance program; sucha program may include an environmentalcompliance or management audit. Particularconsideration should be given to whetherthe compliance or audit program includessufficient measures to identify and preventfuture noncompliance, and whether the programwas adopted in good faith in a timelymanner. 7The DOJ will only consider pre-inspection,self-reporting or voluntary compliance effortsby a violator. Adoption of a compliance programafter an enforcement proceeding will notbe considered favorably when the DOJ makesits enforcement decisions. A published policythat mandates environmental compliance, byitself, is not enough to satisfy the regulators,however. Corporations should be aware thatthe EPA and state regulators will look beyondthe articulated policy to determine whether thewritten work is consistent with corporate action.In addition to avoiding criminal prosecution,corporations can also reduce civil penalties withpre-inspection, self-reporting, and voluntarycompliance. The EPA issued a policy statementthat provides “several major incentives forregulated entities to voluntarily come into compliancewith federal environmental laws andregulations.” 8 Although there is no way to guaranteea favorable EPA response, experience hasshown that self-reported violations frequentlyRhode Island Bar Journal March /April 2012 5

Workers’ CompensationInjured at Work?Accepting referrals for workers’compensation matters.Call Stephen J. Dennis Today!1-888-634-1543 or 1-401-453-1355Seeking Successor Attorney forFully Furnished OfficeOffice available for solo practitioner and/or new lawyer wishing to establish a practice.Principal relocating and will commit to train new lawyer.Well-furnished, including library, two offices, large work station and reception areain East Greenwich. Reasonable lease can be extended.Subtenant and highly-experienced office manager able to continue.Contact Jill or Charlestelephone: (401) 884-1455 email: cdwicklaw@verizon.netevoke minimal EPA action.A successful ECP can serve to eithereliminate or reduce gravity-based (punitive)penalties based on the agency’ssatisfaction with the corporation’s selfpolicing.9 Companies that meet all of thepolicy’s conditions, including voluntarilyidentifying, disclosing and correctingviolations, may have all of their gravitypenalties reduced. Companies that meetmost of the policy’s conditions are eligiblefor up to a 75% decrease in gravitypenalties. This policy clearly notes thatthe EPA will still assess an economicbenefit penalty (amount of costs savedby noncompliance). 10 At a minimum, selfreportingdemonstrates the commitmentof management to environmental complianceand may help protect managementfrom personal liability for knowing aboutviolations of environmental statutes.Like the DOJ, the EPA is looking forcorporate compliance that becomes anintegral part of the corporate philosophy.Publication of a policy without a showingof true intent to carry out the policy willnot provide any protection from EPAscrutiny. Neither will hastily drawn programs,or programs spawned as the resultof an impending or just completed facilityinspection impress the EPA to reducepenalties.The EPA also provides particularincentives for small businesses with 100or fewer employees on a company-widebasis. 11 If the business meets all of thecriteria set forth in the policy, EPA maywaive 100% of the gravity componentof the fine. A business that shows “goodfaith” effort to comply may also receivea proportional reduction, subject to theEPAs discretion.EPA will only apply the penalty reductionswhen the detection was the resultof voluntary corporate activity, rather thanthe product of a government or legallyrequiredaction. Both EPA policies alsopreclude certain repeat offenders fromrepeating the benefits of the incentive. 12The EPA incentives will not apply to enforcementactions for violations that posean imminent danger to public health. 13Useful Hints for Establishing aCorporate Environmental ComplianceProgramThe first step to establishing an ECPis creating an Environmental ComplianceTeam (ECT). Each facility should designatea team leader with overall responsibility6 March /April 2012 Rhode Island Bar Journal

for coordinating environmental compliancefor all media. The ECT lead’sresponsibility is to determine that allinformation submitted is consistent andaccurate for all environmental filings,including annual reports, communityright to know information and ResourceConservation and Recovery Act (RCRA)manifests. Some corporations have designatedan attorney from general counsel asthe ECT lead, while others may designatethe duties to the CEO or the Chairmanof the Board of Directors. 14 While there isno legal requirement that upper managementtake any designated position in theECT, there will be a logistical need tohave at least one member of upper managementwith the authority to authorizeroutine expenditures for the ECT. Thefact that management personnel share inthe liability regardless of their knowledgeor lack of it, 15 should also incentivizedupper management to have active representationon the ECT and make everyeffort to keep current on environmentalcompliance status.The ECT lead should ensure that allpersonnel are aware of impending deadlinesby keeping track of compliancedeadlines. A “compliance calendar”may be something as simple as a weeklymemo outlining filing deadlines for thatweek and providing advanced notice ofsignificant future deadlines. The ECTmay elect to utilize computer softwaredesigned to keep track of such dates andgenerate reports on demand. Companiescan maintain a database which lists allenvironmental permits, expiration datesand any monitoring, testing or reportingrequirements. Whatever the methodselected, the most important elementis that the system provides an effectivemeans of keeping track of deadlines.The individuals responsible for requiredsubmissions to state or federal agenciesshould send copies of all submissions tothe ECT lead. The lead can then comparethe deadlines on the compliance calendarwith the actual submission date. Thissystem creates a central file that will aidin the performance of comprehensiveenvironmental audits.a. Self-AuditsOne of the most important aspectsof an ECP is self-auditing. All facilitiesshould undergo at least annual self-audits.The audit should include a review of pastfilings, discharge and testing histories andAt the end of the day...Who’s Really WatchingYour Firm’s 401(k)?And, what is it costing you?• Does your firm’s 401(k) includeprofessional investment fiduciaryservices?• Is your firm’s 401(k) subject toquarterly reviews by anindependent board of directors?• Does your firm’s 401(k) featureno out-of-pocket fees?If you answered no to any ofthese questions, contact theABA Retirement Funds Programto learn how to keep a closewatch over your 401(k).Phone: (800) 826-8901email: contactus@abaretirement.comWeb: www.abaretirement.comWho’s Watching Your Firm’s 401(k)?The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”))with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust.The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association,most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus maybe obtained by calling (800) 826-8901, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142,Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of theCollective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of theCollective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any suchstate or other jurisdiction. The Program is available through the Rhode Island Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in noway a recommendation with respect to, any security that is available through the Program.C11-0318-012 (3/11)Court Qualified ● Signature Comparison ● Questioned DocumentsJury Selection ● Neurophysiological Research ● Seminars ● PublicationsA F F I L I AT I O N S :American Psychological AssociationAmerican College of Forensic ExaminersSeifer Handwriting ConsultantsMarc J. Seifer, Ph.D.Box 32, Kingston, R.I. 02881(401) 294-2414email: mseifer@verizon.netHandwriting Expert: Over 25 Years ExperienceRhode Island Bar Journal March /April 2012 2012 7

other relevant data to make sure allstatutory requirements have been met.These audits should be performed byan independent auditor. At a minimum,the auditor should be a designated individualdistinguished from the environmentalcompliance officer. 16 For thosecompanies just establishing an ECT, andwith a questionable compliance history,it may be advisable to have the first auditperformed by a competent outside consultant.The facility should select a consultantwith the resources and knowledgeto evaluate and assess all environmentalmedia and encompass all possible applicablefederal and state statutes.Once a violation is known, failureto act becomes knowing noncompliance.This incurs significantly greater liabilityincluding the potential for criminal prosecution.Therefore, prior to undertakingthe audit, the top management of thefacility must commit to taking the stepsnecessary to resolve any problems theaudit may uncover. Once a completecorporate compliance audit is performed,the facility must act on the results andreport the violation. An agency reviewthat reveals the same discrepancies maytrigger a full inspection, whereas selfreportingmay be regarded favorably.b. Employee Training and DisciplineBoard members and/or officers shoulddemonstrate their dedication to environmentalcompliance by dedicating theirtime, equipment and other resources toeffective, comprehensive training. Themost effective training programs arethose that continually educate “the chiefexecutive officer right on down to thenight janitor” 17 using interactive trainingmethods that keep employees engaged.The training program should be subjectto review to include new educationalmaterials and adjust for relevant changesin technology and law. 18 Managementshould always keep records of employeetraining experiences to document its efforts.The compliance policy should encourageemployees to monitor environmentalcompliance and to report instances ofnoncompliance. While environmentalwhistleblowers are protected from retaliationby law, internal reporting should beencouraged before resorting to outsidedisclosure. 19 Employees must be assured“freedom from retaliation” for reportingproblems internally. 20 Additionally, theemployee policy should provide affirmativemotivation for employees to offeralternative operating and productionmethods that may result in waste streamreduction or reduction in the use of hazardousmaterials. Techniques for encouraginginternal reporting and creativecompliance ideas include third-partyoperated hot lines, open-door policies,and generic forms requiring specificityand support of allegations. 21 These toolshelp employees understand that “environmentalcompliance is an important goalof the corporation.” 22 The ultimatemotivating scheme would consider ECPcontributions “when awarding bonuses,promotions and salary increases.” 23Another important aspect of complianceis the proper disciplining of responsibleemployees. This requires establishingenvironmental compliance as the corporatebenchmark, using a disciplinaryprogram to encourage cooperation andto deal with violators. The corporateenvironmental policy should includeidentifying those individuals responsiblefor the compliance failure and carefulconsideration of the obviousness, duration,frequency and history of theemployee’s contribution to noncompliance.Of course, established corporate discipli-8 March /April 2012 Rhode Island Bar Journal

nary policy must be actively enforced toassure the EPA and the DOJ that managementdoes not tacitly encourage ignoringenvironmental regulations to meet productionquotas or budget demand.c. Inspection PreparationThere are numerous triggers that mayprompt a governmental inspection of afacility. Complaints from citizens or employeesare an obvious basis for an inspection.Some environmental statutes providefor mandatory routine inspections. 24 Thelaw does not even require proof of violationbefore an unannounced inspection. 25There are other prompts for multimediainspections, created by the regulatorysystem itself. The Emergency Planningand Community Right-to-Know Act(EPCRA) require filing reports listing alltoxic chemicals. These reports give theEPA sufficient information to determinethe potential types of waste a facility islikely to generate based on its chemicalinventory. The EPA may then reviewwaste transport manifests filed pursuantto the RCRA. If a discrepancy is apparent,an inspection will likely follow. TheEPA may also compare similar facilityreports to determine if there are significantdiscrepancies in the filings of thefacilities. Chronically late reports or thosewith incomplete or confusing informationmay also trigger the interest of EPA inspectors,prompting an on-site inspection.Because of these various triggers, it isfar too risky to assume the regulatoryofficial will offer prior notice of an inspection.More commonly the inspectors willappear unannounced. RCRA provides:…For purposes of developing orassisting in… enforcing the provisionsof this chapter,…any officer, employeeor representative of the EnvironmentalProtection Agency, duly designated bythe Administrator, or upon request ofany duly designated officer, employeeor representative of a State having anauthorized hazardous waste program…areauthorized—(1) to enter at reasonable times anyestablishment or other place wherehazardous wastes are or have beengenerated, stored, treated, disposed of,or transported from;(2) to inspect and obtain samples fromany person of any such wastes andsamples of any containers or labelingfor such wastes. 26It is in the facility’s best interest to preparefor these unannounced inspectionsby performing its own mock surpriseinspections. Either support managementpersonnel or an outside environmentalconsultant should conduct the mockinspection. The results of the inspectionshould be shared in a confidentialdebriefing with all personnel involved.This practice inspection should make iteasier for the facility to effectively handlea “real” inspection.When the regulatory inspector knockson the door, do not panic, especially ifthe environmental compliance programhas been in operations for any period oftime. While it is likely that an inspectionwill reveal some deficiencies, it is best todeal with these as they arise. While refusingimmediate entry may gain a smallamount of time, the time gained is normallyinsufficient to perform any but themost basic corrective actions. Further,refusing immediate entry sends the wrongsignal to the inspectors and may result ina higher level of scrutiny. Although permittingimmediate entry may result inmore violations, the level of antagonismis likely to be lower and the inspectorscontinued on page 38Michael T. LahtiAdmitted to PracticeIn RI, MA & FLCertified ElderLaw AttorneyLLM in Estate PlanningMaria H. (Mia) LahtiAdmitted to PracticeIn RI & MAFocusing on ProbateandGuardianship IssuesStephen T. O’NeillAdmitted to Practice in RI & MAFellow of the American College of Trust and Estate Counsel1 Richmond Square, Suite 303N, Providence, RI 02906 Telephone 401-331-0808Additional Offices in New Bedford and West Harwich, MassachusettsWWW.LLO -LAW.COMAttorney to Attorney Consultations / ReferralsRhode Island Bar Journal March /April 2012 2012 9

Now Accepting 2012 Bar Award NominationsRalph P. Semonoff Award for ProfessionalismFlorence K. Murray AwardVictoria M. Almeida Servant Leader AwardAll nominations are due March 16, 2012.2012 Ralph P. Semonoff Awardfor ProfessionalismThe Rhode Island Bar Association 2012 Ralph P.Semonoff Award for Professionalism is named for pastRhode Island Bar Association President Ralph P. Semonoffwho championed the law as a high calling, justice as adefendable right, and public service as the beacon of a life’swork. This award is presented at the Bar’s Annual Meetingin June to an attorney who has, by his or her ethical and personalconduct, commitment and activities exemplified, forfellow Rhode Island attorneys, the epitome of professionalismin the law, advancing the calling of professional practicethrough leadership, high standards of integrity, commitmentand dedication.This award’s selection criteria include:1) respect for the law;2) service as an officer of the court and protector of individualrights;3) contribution of time and resources to public service,public education, charitable and pro bono activities inthe community;4) working with others in the legal system to make ourlegal system more accessible and responsive;5) knowledge of the law and proficiency in practice;6) courtesy, personal dignity, and professional integrity.The recipient of the Ralph P. Semonoff ProfessionalismAward should not only observe the principles set forthabove, but demonstrate an effort to educate those whodo not conform to them to ensure adherence by theentire profession.In a written communication, based on the selection criterianoted above, describe your nominee’s qualifications. Pleaseinclude:1) the nominated attorney’s name; and2) your name, telephone number and email address.Please send nominations no later than March 16, 2012 to:Chairperson Deborah M. Tate, Esq.2012 Semonoff Award NominationRhode Island Bar Association115 Cedar StreetProvidence, RI 029032012 Florence K. Murray AwardThe Rhode Island Bar Association annually presents theFlorence K. Murray Award to a person who by example orotherwise has influenced women to pursue legal careers,opened doors for women attorneys, or advanced opportunitiesfor women within the legal profession. The Award is namedin honor of the first recipient, Hon. Florence K. Murray, who,in a distinguished 56 years at the bar, pioneered the causes ofwomen in the law as the first woman attorney elected to theRhode Island Senate, the first woman Justice on the SuperiorCourt, the first woman Presiding Justice of the SuperiorCourt, and the first woman on the Rhode Island SupremeCourt. The nominee is selected by a committee composedof six members of the Bar appointed to staggered two-yearterms by the President of the Bar Association.Please send 2012 Florence K. Murray Award nominations,no later than March 16, 2012, to:Chairperson Marcia McGair Ippolito, Esq.2012 Florence K. Murray AwardRhode Island Bar Association115 Cedar StreetProvidence, RI 029032012 Victoria M. Almeida Servant Leader AwardNamed in honor of its first recipient, the Victoria M.Almeida Servant Leader Award is presented to an individualwho demonstrates the principles and values of servant leadershipand who is a beacon of light and hope to others byilluminating the path to greater justice for all. Servant leadershipseeks to encourage others in achieving the goals ofthe Rhode Island Bar Association while remaining faithful tothe mission and values of the organization and preserving itsintegrity.To nominate a Bar member for this Award, please senda letter of nomination, with any supporting documents, nolater than March 16, 2012 to:Chairperson Michael R. McElroy2012 Victoria M. Almeida Servant Leader AwardRhode Island Bar Association115 Cedar StreetProvidence, RI 0290310 March /April 2012 Rhode Island Bar Journal

Why Rhode Island Needs Default SurrogateConsent StatutesEric D. Correira, Esq.Correira & Correira LLP,Swansea, MADefault SurrogateConsent Statutesprovide clear legalguidelines, avoidburdensome judicialproceedings,and protect allrelevant interests.I. IntroductionAll individuals should execute a durablepower of attorney for healthcare, appointinganother person to act as their healthcare agentand make medical decisions on their behalf inthe event that they are one day incapacitated.However, most people have not completed thisimportant document. 1 The failure to execute anadvance directive is often the result of a misunderstandingof the legal system or psychologicalinability to think about future illness or death. 2When a person becomes incapacitated withoutan appointed healthcare agent, the possibilityexists for a dispute to arise amongst interestedparties (either amongst family members, orbetween family members and doctors), potentiallyrequiring court involvement to reach afinal determination. These conflicts are moreeasily resolved if a healthcare agent has beenappointed because that individual has clearlegal authority to make the ultimate decision.Recognizing this problem, the majority ofstates (today thirty-eight and the District ofColumbia) have enacted a statutory mechanismfor appointing a surrogate for healthcare decision-makingfor incapacitated persons withouta designated healthcare agent. Generally knownas Default Surrogate Consent Statutes, particularprovisions of these statutes vary from stateto state. 3The remaining twelve states, includingRhode Island, have still declined to implementthis important safeguard. Instead, in thosestates, if disputes between interested parties areirresolvable outside of court, a party must petitionfor a decision to be made on behalf of theincapacitated person. In those cases, the courtmust determine what choices the incapacitatedperson would make in their current situationif they still possessed decision-making capacity.II. Default Surrogate Consent StatutesSurrogacy statutes vary from state to state,but all versions of these statutes share severalfeatures. Most are based on Section 5 of theUniform Health-Care Decisions Act (UHDCA),a model act promulgated by the NationalConference of Commissioners on Uniform StateLaws. Some states have adopted the uniformstatute in full, whereas other versions are aderivation of the UHDCA. 4Surrogacy statutes apply when a personlacks capacity to make healthcare decisions.The healthcare provider determines whether theperson lacks capacity. The statutes only becomeeffective if a person has not previously appointeda healthcare agent by means of an advancedirective. 5 Most states limit the applicability ofsurrogacy statutes to those situations where apatient is “terminally ill, in a persistent vegetativestate, or irreversibly comatose.” 6To determine the incapacitated person’sdefault healthcare surrogate, most statutes containa hierarchical listing of family membersand close friends who are to serve if capable,moving down the list until someone becomesavailable. 7 Many state priority listings are similarto the UHDCA, which provides that if anagent is either unavailable or has not beenappointed, “Any member of the following classesof the patient’s family who is reasonablyavailable, in descending order of priority, mayact as a surrogate: (1) the spouse, unless legallyseparated; (2) an adult child; (3) a parent; or(4) an adult brother or sister.” 8 If none of thelisted individuals can serve, “An adult who hasexhibited special care and concern for thepatient, who is familiar with the patient’s personalvalues, and who is reasonably availablemay act as surrogate.” 9Most surrogacy statutes provide a mechanismfor choosing a surrogate when more thanone person is available at the applicable prioritylevel. Usually, the majority controls, although afew states have formulated alternative processesto reach a resolution. 10 Several states, reflectingconcerns for non-traditional families, includedomestic partners within the priority list. 11 TheDistrict of Columbia places close friends at ahigher level than some family members. 12 Somestates place physicians, as a person of last resort,to make healthcare decisions if the patient is“unbefriended” and without any other potentialsurrogate. 13 Finally, two states, Colorado andHawaii, take a different approach to the prioritylist model and instead specify “interested per-Rhode Island Bar Journal March /April 2012 2012 11

FloridaLegal Assistance StatewideEdmund C. Sciarretta, Esq.Suffolk Law 1970PERSONAL INJURYWORKERS’ COMPENSATIONREAL ESTATE CLOSINGS • TITLE INSURANCEPROBATE ADMINISTRATIONPROBATE LITIGATIONMARITAL & FAMILY LAW • GUARDIANSHIPBANKRUPTCY • CRIMINAL LAWSciarretta & ManninoAttorneys at Law7301A West Palmetto Park Road • Suite 305CBoca Raton, Florida 334331-800-749-9928 • 561/338-9900Office Space AvailableWithin Existing Law OfficeAMENITIESReceptionist • Conference RoomsCopier • ParkingSecretarial Stations • Filing CabinetsGreat LocationCONTACTJim Goldman51 Jefferson BoulevardWarwick, Rhode Island401-781-4200, ext. 11sons” who together choose the surrogatefrom amongst a group based on closenessto the incapacitated person and familiaritywith his or her wishes. 14Once a person is established as theincapacitated patient’s default surrogate,that person is legally the equivalent of anappointed healthcare agent. 15 Healthcareproviders are required to receive informedconsent from the surrogate and followthe surrogate’s medical choices for thepatient. 16 The surrogate can authorizemany forms of treatment, including theissuance of a DNR Order. 17 However,many Default Surrogate Consent Statutesplace some degree of limitation on thescope of the surrogate’s decision-makingauthority. 18 Some statutes prohibit surrogateconsent if the incapacitated person ispregnant. 19 Other states prohibit consentto specific treatments such as abortion,psychosurgery and sterilization. 20When making decisions on behalf ofan incapacitated person, most statutes,but not all, require the surrogate to usea specified standard of judgment. 21 Thisis to prevent the surrogate from actingas a separate decision-maker and frommaking decisions reflecting their ownpersonal beliefs. 22 Some surrogacy statutesrequire that the surrogate use the “substitutedjudgment” approach and makedecisions they believe the incapacitatedperson would have made if able to doso themselves. 23 Other statutes ask thesurrogate to instead decide what he orshe believes to be in the general “bestinterest” of the incapacitated person(as opposed to trying to determine thepatient’s personal preferences). 24 Finally,many states, as well as the UHDCA,require first the “substituted judgment”approach be considered by the surrogate,and then, if the patient’s wishes areunknown and unattainable, the surrogateis to decide what they believe to be in theperson’s best interests. 25 This layering ofthe two approaches appears to be themost effective means to reach a correctdecision. 26III. Considerations in Support ofDefault Surrogate Consent StatutesDefault Surrogate Consent Statutesprovide clear legal guidelines, avoid burdensomejudicial proceedings, protect allrelevant interests, and implementation inRhode Island would be one more steptoward greater uniformity with the restof the country.12 March /April 2012 Rhode Island Bar Journal

A. Clear Legal GuidelinesPublic policy favors creating clear legalguidelines for assisting family membersor friends in making informed medicaldecisions for an incapacitated person.A publicized surrogate list will result inincreased awareness and may encouragepeople to discuss treatment preferenceswith potential surrogates. 27 Surrogacystatutes allow people to avoid the questionof having to determine who shouldmake decisions, and instead allow for amore immediate focus on the patient andhis or her healthcare needs. 28 A definiteprocedure gives notice to both familymembers and doctors of the specific personpossessing decision-making authority,as well as the scope of that authority. Byproviding the judgment standard to use,and factors to consider, the statute assiststhe surrogate in making decisions for theincapacitated person. It also provideslegal protections for decision-makersacting in good faith. 29 Decisions aboutan incapacitated person’s healthcare,especially if involving life-sustainingtreatment, are extremely difficult withoutthe addition of legal liability. 30B. Avoidance of Judicial InvolvementIf family members, close friends andtreating physicians are unable to agreeon the proper course of treatment foran incapacitated person, then the burdensomeprocess of appointing a guardianmay be required. Judicial intervention iscumbersome and expensive, and rulingsby the court appear to be no more likelyto reflect the incapacitated person’s ultimatewishes than a statutorily appointedsurrogate. 31 Judges do not possess a specialexpertise for deciding whether to terminatemedical treatment, and in otherareas of the law avoid making personalfamily decisions involving “moral, ethicaland theological elements.” 32Judges often defer to the physician’smedical judgment, defeating the purposeof judicial review to act as a neutralarbitrator in resolving conflicts betweenphysicians and family members. 33 In addition,the criteria used by the courts typicallyemphasizes individualized concerns,without necessarily taking into accountwhat the incapacitated person woulddecide when considering the interestsof family members and close friends. 34Judges also approach cases involvingthe termination of life-sustaining treatmentwith pre-existing assumptions. 35 InYo 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 stateThere’s only one ...RI Zoning Handbook, 2dby Roland F. Chase, Esq.• Completely revised • 340 pages • Comprehensive text-and-footnoteanalysis of Rhode Island zoning law, plus federal zoning law (new!) • Keptup to date with annual supplements • Table of Cases • Table of Statutes• Exhaustive index • $80.00 plus $5.60 tax • No shipping charge for prepaidorders. Further information and order form at www.rizoning.com.Chase Publications, Box 3575, Newport, RI 02840Rhode Island Bar Journal March /April 2012 2012 13

such decisions, judges tend to err towardpreserving life, rather than alleviatingpain and suffering. 36 Also, judges usuallyproceed with the presumption that apatient would want to be kept alive bymachines, and must be shown evidenceotherwise. 37 Other unfounded assumptionsmade by judges include the beliefthat younger people are more likely towant to terminate medical treatment forthe elderly and that financial reasons areoften a primary reason for ending treatment.38 These and other judicial assumptionsdo not reflect the views of mostpeople, or necessarily the views of theincapacitated person in question. 39In addition, if the situation is not seenas an emergency by the court system,it may be treated as a routine matter thatcan result in a long delay. 40 Often patientsdie before courts reach an ultimate decision.41 While a delay may not put thepatient’s life or health at risk, it can resultin continued, unnecessary physical pain,emotional suffering and increased medicalexpenses. It will likely result in furtheremotional strain on the patient’sfamily members, close friends and attendinghealthcare providers. 42 As JusticeBrennan noted, in his dissent in Cruzan,“An erroneous decision not to terminatelife support, however, robs a patient ofthe very qualities protected by the rightto avoid unwanted medical treatment.His own degraded existence is perpetuated;his family’s suffering is protracted;the memory he leaves behind becomesmore and more distorted.” 43Furthermore, judicial participationmoves the process from the private, clinicalsetting to a public forum, opening theconflict to public scrutiny. 44 Surrogacystatutes, on the other hand, allow fordecision-making to remain in the healthcaresetting, involving only concernedparties and protecting the patient’s privacy.Finally, court proceedings usuallyrequire the incurring of significant legalfees. 45 Most families, already facing staggeringmedical expenses, do not haveeither the financial resources or emotionalwherewithal to partake in a legal battle.This is particularly problematic whenthe opposing party is a hospital, with amuch greater financial ability to pursue alengthy court proceeding. 46 Even if thereis not a conflict, and instead only theneed for a court order, this legal proceduremay still be burdensome on thoseunfamiliar with the legal system or whoare already dealing with the illness of aloved one. 47C. Americans Prefer Family Membersto Serve as Healthcare SurrogatesAnother reason for enacting a surrogacystatute is to ensure the incapacitatedperson’s wishes are more likely to befollowed. 48 The priority listing used insurrogacy statutes is harmonious withthe stated preferences of the majority ofAmericans who choose their healthcareagent from among close family members. 49Studies show that most Americans wouldfirst select their spouse as healthcare agent,followed by an adult child. 50 From thisresearch, it appears that surrogacystatutes match the selection preferencesof most Americans.It is understandable why people usuallychoose close family members to betheir healthcare agents, and why, in turn,it is close family members that are givenpriority in surrogacy statutes. Familymembers often have the greatest concernfor the incapacitated person’s welfare,spending the most time at the hospitaland acting as advocates for the person.Also, family members must live theirlives with the decisions that they make,14 March /April 2012 Rhode Island Bar Journal

IV. Default Surrogate ConsentStatutes: Shortcomings and PossibleSolutionsSome commentators have noted thatDefault Surrogate Consent Statutes arean imperfect remedy, containing severalsignificant shortcomings. Because differwithelements such as love, guilt and fearresulting in a deeper consideration ofwhat treatment to provide or refuse. 51There is a bond and common experienceshared with the incapacitated person thatallows a family member to better understandthat person’s wishes. This sharedknowledge and way of thinking, however,may be difficult for a family member toconvey to a judge during a court proceeding.52Designating family members as thepossible surrogates on the priority listis supported by further evidence as well.It is standard practice for physicians toshare medical information with a person’sfamily members, and receive their inputin informal decision-making. 53 In addition,while family members may at times be inaccuratein predicting the patient’s wishes,studies have shown that family membersmake closer predictions than physicians. 54sustaining treatment refused or removed.Family members and close friends, thosewith the greatest concern for the person’swell being, are in the best position tomake these decisions. Also, it is thesepeople who will be able to avoid theemotional, financial and time expensesof litigation. 56 Finally, for healthcareproviders, a clearly designated surrogaterelieves concerns over balancing preservationof life with alleviation of painand suffering, as well as the possibility ofcivil or criminal liability. 57 Physicians, ifthe family agrees, may decide to removelife-sustaining treatment without therequisite legal authority. However, suchunauthorized actions, while perhaps conformingto the patient’s desires or in hisor her best interests, should not need totake place. 58E. Uniformity with the Majority ofStatesMost states have enacted some versionof a surrogacy statute, and implementationin Rhode Island would be one morestep toward national consistency anduniformity. 59 Having uniform or similarstatutes in all states is particularly usefulbecause of the increasing mobility ofAmerican society.Admittedly, Default Surrogate ConsentStatutes cannot solve all the problemsthat arise when a healthcare agent hasnot already been appointed such as whena serious dispute occurs between twopossible surrogates or if no potentialsurrogate is available to serve. Still, byproviding a priority listing or selectionprocess, the statutory mechanism is ableto resolve most disputes. This, in turn,decreases the need for judicial involvement.While state courts have alreadyindicated the desire that many healthcaredecisions should be made without courtintervention, due to fears of potential litigation,doctors are, at times, understandablyhesitant to act without first obtainingcourt approval. Surrogacy statutesprovide much needed clarity. 60D. All Relevant Interests AddressedSurrogacy statutes address the interestsof the incapacitated person, the person’sfamily members and close friends, thestate and attending physicians. 55 Theincapacitated person is, through their surrogate,allowed to have invasive or life- continued on page 41StrategicPoint is an independent investment advisory firm servingthe Rhode Island community for more than 20 years.We can help your clients manage their finances resulting from: Providence &East Greenwich1-800-597-5974StrategicPoint.comManaging Directors:Richard J. Anzelone, JDBetsey A. Purinton, CFP®StrategicPoint Investment Advisors, LLC is a federally registered investment advisor and is affiliated with StrategicPoint Securities, LLC, a federally registered broker-dealer and FINRA/SIPC member.Rhode Island Bar Journal March /April 2012 2012 15

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 emailbasednetwork through which Bar members may ask for help,or volunteer to assist 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, helpare screened and then directed through the SOLACE volunteerSOLACEHelpingBar Membersin Timesof Needemail network where members may thenrespond. On a related note, members usingSOLACE may request, and be assured of,anonymity for any requests for, or offers of,help.To sign-up for SOLACE, please go tothe Bar’s website at www.ribar.com, login tothe Members Only section, scroll down the menu, click on theSOLACE Program Sign-Up, and follow the prompts. Signingup includes your name and email address on the Bar’s SOLACEnetwork. As our network grows, there will be increased opportunitiesto help and be helped by your colleagues. And, the SOLACEemail list also keeps you informed of what Rhode Island BarAssociation members are doing for each other in times of need.These communications provide a reminder that if you have aneed, help is only an email away. If you need help, or knowanother Bar member who does, please contact Executive DirectorHelen McDonald at hmcdonald@ribar.com or 401.421.5740.Do you or your family need help with any personal challenges?We provide free, confidential assistance to Bar members and their families.Confidential and free help, information, assessment and referral for personal challenges areavailable now for Rhode Island Bar Association members and their families. This no-costassistance is available through the Bar’s contract with Resource International EmployeeAssistance Services (RIEAS) and through the members of the Bar Association’s LawyersHelping Lawyers (LHL) Committee. To discuss your concerns, or those you may have abouta colleague, you may contact a LHL member, or go directly to professionals at RIEAS whoprovide confidential consultation for a wide range of personal concerns including but notlimited to: balancing work and family, depression, anxiety, domestic violence, childcare,eldercare, grief, career satisfaction, alcohol and substance abuse, and problem gambling.When contacting RIEAS, please identify yourself as a Rhode Island Bar Association memberor family member. A RIEAS Consultant will briefly discuss your concerns to determine if yoursituation needs immediate attention. If not, initial appointments are made within 24 to 48hours at a location convenient to you. Please contact RIEAS by telephone: 401-732-9444 ortoll-free: 1-800-445-1195.Lawyers Helping Lawyers Committee members choose this volunteer assignment becausethey understand the issues and want to help you find answers and appropriate courses ofaction. Committee members listen to your concerns, share their experiences, offer adviceand support, and keep all information completely confidential.Please contact us for strictly confidential, free, peer and professional assistancewith any personal challenges.Brian Adae, Esq. 831-3150Neville J. Bedford, Esq. 709-4328Henry V. Boezi III, Esq. 861-8080David M. Campanella, Esq. 273-0200John L. Capone, Esq. 392-4070Diana Degroof, Esq. 274-2652Sonja L. Deyoe, Esq. 437-3000Kathleen G. DiMuro, Esq. 944-3110Lin M. Eleoff, Esq. 480-9101Merrill J. Friedemann, Esq. 331-1434Maureen D. Gemma, Esq. 453-1355Julie P. Hamil, Esq. 222-3266Jeffrey L. Koval, Esq. 230-7277Nicholas Trott Long, Esq., Chairperson 351-5070Genevieve M. Martin, Esq. 274-4400Dennis J. McCarten, Esq. 965-7795Daniel P. McKiernan, Esq. 223-1400Joseph R. Miller, Esq. 454-5000Roger C. Ross, Esq. 723-1122Adrienne G. Southgate, Esq. 301-7823Ms. Judith G. Hoffman, 732-9444LICSW, CEAP, RIEAS or 800-445-1195Lawyers Helping Lawyers Committee Members Protect Your Privacy16 March /April 2012 Rhode Island Bar Journal

Lawyers Helping Lawyers Book ReviewI Don’t Want To Talk About Itby Terrence RealGenevieve M. Martin, Esq.Assistant Attorney GeneralRhode Island…it is a sign oftrue strength totalk aboutdepression andnot to bury it.“Stop crying, or I’ll give you something to cryabout.” “Big boys don’t cry.” From an early age,we are conditioned to expect boys and men tocontrol their emotions. We teach them that ifthey cry, or show too much emotion, they willnever be good enough, or worthy enough ofrespect.So what happens to those feelings and thehurts that make a young boy want to cry in thefirst place? Those feelings, the pain, the traumainflicted by forcing young men to not be whothey are inside ends up buried and hidden andpushed deep down inside because of shame.Only when that young boy can bury these feelingsand needs will he be considered strong,someone worthy of being the one that otherswill rely upon for strength.Unfortunately, sometimes the strength wesee projected on the outside may be masked byaddictive behaviors (drugs, alcohol, gambling),domestic violence, workaholic behavior, cheatingon spouses and loved ones, and obsessiveweight loss behavior. These behaviors are usedto mask the pain from holding in those emotionsand ability to express need to be lovedand understood. They tear families and individualsapart while, at the same time, somedefensive and masking behaviors, such asworkaholic and weight loss tendencies, are notonly rewarded, but revered by society, onlyserving to reinforce them.Psychotherapist Terrence Real tells a story oftruth and compelling analysis, through recountinghis life and the lives of numerous patientsof in his book, I Don’t Want To Talk About It,Overcoming the Secret Legacy of MaleDepression. The author decided to become apsychotherapist to, first, understand his father’sdepression, and the impact it had upon his family.It was only when Terrence was an adult thathe found the strength to ask his own father, adepressed man, a man whose “horrible diseasewhittled him, sucked the marrow out ofhim….” 1 what happened to him. Terrencebegins his story with the night before his fatherdied when his father gave him his blessing andTerry gave him his. But, it seems what they bothwanted most was forgiveness, and to preventthe past from destroying the future.The courageous stories of numerous therapysessions contained in this important book,some of success and some of profound failure,show us the child we thought was so resilient,so able to survive whatever he faced, often doesso at a terrible price. He survives while leavinga piece of his youth and innocence behind. Hesurvives believing that he can never show emotionsor his need of love and understanding.This is the child Terrence Real reveals to us insuch a compelling fashion that we realize weneed to help him to understand it is not a signof weakness to need someone or to need loverather, it is a sign of strength. This strengthhelps the man who turns to a mistress to seekcomfort to, instead, turn to his significant other.This strength helps the man who has pushedthose who love him away with both hands toaccept the love and comfort those close to himwant so much to give.This book presents a life-changing reasonto talk about depression. Specifically, to teachour children and ourselves it is a sign of truestrength to talk about depression and not tobury it. When that child inside learns that hecan have needs and still be a man, that he canbe compassionate and empathetic and still be aman, only then can healing begin. But, as Terrytells us, we must talk about it. Why? If we donot, the cycle will continue for generations,perpetuating itself and continuing to damageourselves, our families and our futures. Thisbook is not only a compilation of stories ofcourage, but also of hope.Editor’s Note: This book review is brought to you as aservice of the Rhode Island Bar Association’s LawyersHelping Lawyers Committee. Please see page 16 for moreinformation about this Committee’s sponsored services forBar members and their families.ENDNOTE1 Real, Terrence, I DON’T WANT TO TALK ABOUT IT,OVERCOMING THE SECRET LEGACY OF MALE DEPRESSION,New York, Scribner, 1997, p. 19.Rhode Island Bar Journal March /April 2012 2012 17

18 March /April 2012 Rhode Island Bar Journal

How Financial Decisions Can AdverselyImpact Your Medicare Premiums &Social Security TaxMarc J. Soss, Esq.Licensed in Florida,Connecticut & Rhode IslandA significantfinancial incomeincrease from thesale of investmentassets or exercisingstock options cantrigger increasedSocial Securitytaxes and MedicarePart B premiums.Retired taxpayers may be surprised to learnthat financial decisions can adversely impactnot only their income taxes, but their Medicarepremiums and Social Security tax. A significantfinancial income increase, resulting from thesale of investment assets (stocks, bonds, realestate, etc.), portfolio rebalancing, IRA withdrawals,a Roth conversion, or the exercise ofstock options, can trigger income tax, long-termcapital gains, increased Social Security taxes,and Medicare Part B premiums. The worstpart is the damage can impact the taxpayer forseveral years into the future.Medicare Part B is medical insurance thatcovers doctors’ services, outpatient care, physicaltherapy and some home health care. Thestandard monthly premium, which is $99.90(higher income consumers may pay more) amonth per person, is paid by approximately95% of all Medicare recipients. The federalgovernment pays 100% of Medicare Part A,which is hospital insurance.Medicare premiums are calculated on ataxpayer’s “modified adjusted gross income”(taxable and tax-exempt interest income). TheSocial Security Administration calculates a taxpayer’sMedicare Part B premium based upontheir most recent tax return. For example, in2012, the Medicare premiums will be basedupon federal income tax returns filed in 2011for the 2010 tax year. Since 2007, higher-incometaxpayers have been required to pay an incomeadjustedMedicare surcharge (ranging from$139.90 to $319.90 a month per person). In2012, individuals with incomes greater than$85,000 a year, and couples with incomes above$170,000, will pay a surcharge.For tax year 2011, Social Security benefitswill not be taxed on income less than $25,000for singles and $32,000 for a couple. However,the taxable amount can rise to 85% when asingle taxpayer’s taxable income reaches$34,000 or $44,000 for a couple.Financial Decisions RequiringConsiderationAvoidance of an increase in the MedicarePart B premium and social security taxes canimpact a taxpayer’s financial decision makingprocess. A taxpayer may exercise stock optionsin a single year, instead of over several years, tolimit higher premiums to a single year insteadof multiple.A large IRA withdrawal could also result inhigher Medicare premiums and social securitytaxes. To avoid this tax problem, many financialadvisors recommend making the IRA to RothIRA conversion and large IRA withdrawalsprior to attaining Medicare and Social Securityeligibility. Alternatively, for those charitablyinclined, make your charitable gifts directlyfrom your IRA and avoid having the fundsincluded in your taxable income.What the Future HoldsBeginning in 2013, a single taxpayer withan income in excess of $200,000, or $250,000for a couple, will be subject to a new 3.8%Medicare tax. Since Medicare premiums arededucted from Social Security benefits, theincreased Medicare premiums can significantlyreduce a taxpayer’s monthly benefits. ❖SEEKING 2012 BAR AWARD NOMINATIONSDo you know a colleague worthy of recognition? If so, please consider nominating that personfor one of this year’s Rhode Island Bar Association Awards. Nominations are now open for:Ralph P. Semonoff Award for ProfessionalismFlorence K. Murray AwardVictoria M. Almeida Servant Leader AwardPlease see page 10 in this issue of the Bar Journal for award nomination details.2012 Bar Award nominations are due no later than March 16, 2011Rhode Island Bar Journal March /April 2012 2012 19

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 Total Shipping 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 12-02 $70Loan DocumentationPractical Skills - Organizing a Rhode Island 11-18 $45BusinessCommercial Law 2011: Update on Recent 11-13 $40DevelopmentsENVIRONMENTAL LAWResponding to DEM & CRMC Enforcement 09-17 $30ActionsFAMILY LAWPractical Skills - Domestic Relations Practice 12-06 $50(available after 3/29/12)QDRO Practice in RI from A-Z 09-13 $40LAW PRACTICE MANAGEMENTEstablishing a Law Firm in RI 09-19 $25Planning Ahead 09-14 $39.95PROBATE/ELDER LAWPractical Skills - Planning for and Administering 12-08 $40an Estate (available after 5/10/12)Medicaid Forms and Regulations 11-15 $35Medicare Claim Settlements 09-12 $30Administrative Local Rules PR-11 $65REAL ESTATEPractical Skills - Residential Closings 12-07 $65(available after 4/3/12)The Ins & Outs of Landlord Tenant Law 11-11 $15RI Title Standards Handbook TS-12 $35RECENT DEVELOPMENTSRecent Developments in the Law 2011 RD-11 $55TRIAL PRACTICEThe “CSI Effect” (available after 3/20/12) 12-05 TBDDWI Update (available after 3/14/12) 12-04 $35Practical Skills - Civil Practice in Superior Court 12-03 $40Practical Skills - Civil Practice in District Court 12-01 $40Practical Skills - Criminal Law Practice in RI 11-16 $50Soft Tissue Injuries Explained 11-12 $35Social Host Law 09-11 $25HIPAA Explained 04-08 $35Model Civil Jury Instructions 03-02 $49.95WORKERS’ COMPENSATIONPractical Skills - Workers’ Compensation 11-10 $40Practice in Rhode IslandDetach HereOFFICE USE ONLYCheck No.__________________________ Amount ______________________________Date Rec’d ________________________ Date Sent ____________________________20 March /April 2012 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.March 7WednesdayMarch 8ThursdayMarch 13TuesdaySession Two – Fundamentals of anUncontested Divorce Series:Document Preparation & FilingVolunteer Lawyer ProgramRI Law Center, Providence4:00 p.m. – 5:30 p.m., 1.0 credit + .5 ethicsFood for ThoughtAdvising Clients on Civil UnionsRI Law Center, Providence12:45 p.m. – 1:45 p.m., 1.0 creditFood for ThoughtAdvising Clients on Civil UnionsCasey’s Restaurant, Wakefield12:45 p.m. – 1:45 p.m., 1.0 creditMarch 29ThursdayApril 3TuesdayApril 4WednesdayPractical Skills – Domestic RelationsPractice in Rhode IslandRI Law Center, Providence9:00 a.m. – 3:00 p.m., 4.0 credits + 1.0 ethicsPractical Skills – Residential Real EstateClosings in Rhode IslandRI Law Center, Providence9:00 a.m. – 3:00 p.m., 4.0 credits + 1.0 ethicsSession Two – Fundamentals of anUncontested Divorce Series:Mock Nominal TrialVolunteer Lawyer ProgramRI Law Center, Providence4:00 p.m. – 5:30 p.m., 1.0. Credit + .5 ethicsMarch 14WednesdayMarch 14WednesdayDUI Update 2012 (in person)RI Law Center, Providence2:00 p.m. – 5:00 p.m.2.5 credits + .5 ethicsDUI Update 2012 (Live webcast)2:00 p.m. – 5:00 p.m.2.5 credits + .5 ethicsApril 10TuesdayApril 11WednesdayMechanics’ Lien UpdateRI Law Center, Providence2:00 p.m. – 5:00 p.m., 3.0 creditsFood for ThoughtManaging Environmental LiabilityHoliday Inn Express, Middletown12:45 p.m. – 1:45 p.m., 1.0 creditMarch 15ThursdayFood for ThoughtBest Practices for Supreme Court AppealsRI Law Center, Providence12:45 p.m. – 1:45 p.m., 1.0 creditApril 12ThursdayFood for Thought – Starting & Endingan Attorney/Client RelationshipRI Law Center, Providence12:45 p.m. – 1:45 p.m., 1.0 ethics creditMarch 20TuesdayThe “CSI Effect”:The Realities of Forensic ScienceRI Law Center, Providence2:00 p.m. – 5:00 p.m., 3.0 creditsApril 26ThursdayFood for ThoughtManaging Environmental LiabilityRI Law Center, Providence12:45 p.m. – 1:45 p.m., 1.0 creditMarch 21WednesdayMarch 27TuesdayFood for ThoughtBest Practices for Supreme Court AppealsHoliday Inn Express, Middletown12:45 p.m. – 1:45 p.m., 1.0 creditFood for Thought – Starting & Endingan Attorney/Client RelationshipCasey’s Restaurant, Wakefield12:45 p.m. – 1:45 p.m., 1.0 ethics creditSAVETHE DATERhode Island Bar AssociationAnnual MeetingJune 14 & 15, 2012at the Rhode Island Convention CenterReminder: Bar members may complete three credits through participation in online CLE seminars. To register for an onlineseminar, go to the Bar’s website: www.ribar.com and click on CONTINUING LEGAL EDUCATION in the left side menu.Rhode Island Bar Journal March /April 2012 2012 21

New, Unique, Members OnlyOnline Attorney Resources (OAR)The Rhode Island Bar Association developed the uniqueOnline Attorney Resources (OAR), exclusively for Barmembers and available through the Members Only sectionof the Bar’s web site at www.ribar.com, to help Bar membersprovide and receive timely and direct assistance with practicerelatedquestions.OAR provides Bar members with the names, contact informationand Bar admission date of volunteer attorneys willing toanswer questions concerning particular practice areas basedon the volunteer’s professional knowledge and experience.As the Rhode Island Bar Association does not and cannotcertify attorney expertise in a given practice area, the Bardoes not verify any information or advice provided by OARvolunteers. Questions channeled through OAR volunteersmay range from inquiries concerning specific court proceduresand expectations to current and future opportunitieswithin practice areas. However, OAR is NOT a forum forBar members to engage other Bar members as unofficialco-counsel in an on-going case.Since everyone’s time is a limited and precious commodity,all Bar members who contact volunteers must formulate theirquestions concisely prior to contact and ensure the initialcontact takes no longer than 3 to 5 minutes unless mutuallyagreedupon by both parties.OAR offers two options:1. Bar members willing to volunteer as information resources.2. Bar members with questions about a particular area ofthe law.OAR practice areas include: Domestic/Family Law Practice;Civil Practice in Rhode Island District Court – CollectionsLaw & Evictions; Civil Practice in Rhode Island SuperiorCourt – Plaintiff’s Personal Injury Practice; Criminal LawPractice; Commercial Real Estate Transactions; Organizinga Rhode Island Business; Probate and Estate Planning;Residential Real Estate Closings; Workers’ CompensationPractice; Creditors’ and Debtors’ Rights; Federal CourtPractice; and Administrative LawTo sign-up as a volunteer resource or to review the names andcontact information of Bar members serving as Bar volunteers,please go to the Bar’s website at www.ribar.com, login to theMembers Only section and click on the OAR link.22 March /April 2012 Rhode Island Bar Journal

Lunch with Legends:Trailblazers, Trendsetters andTreasures of the Rhode Island BarMatthew R. Plain, Esq. Elizabeth R. Merritt, Esq.Taylor Duane Barton & Gilman, LLP, ProvidenceCriminal defense attorney, Jack Cicilline,began his career as a publicservant. Upon graduating fromLaSalle Academy in 1956 andProvidence College in 1960, thisProvidence native took variousjobs in the State House whileworking his way throughSuffolk Law and supporting hisyoung family. After graduatingfrom law school in 1964, longbefore his son, David, took thereins at City Hall, Mr. Cicillinehad his own stint in the Mayor’sJack Cicilline, Esq.office, working as an assistantand lobbyist for then-Mayor Joseph Doorley on the FairHousing Act which later passed in the Rhode Island GeneralAssembly.In 1968, Mr. Cicilline entered private practice. Over theensuing forty years, Mr. Cicilline earned a reputation as one ofRhode Island’s well-known criminal defense attorneys. Thoughmany of his local cases have garnered considerable attention,Mr. Cicilline’s legal accomplishments span the country. He hashandled cases in approximately twenty-six states, including apro bono death penalty case in rural Georgia at the request ofthe Southern Poverty Law Center. Mr. Cicilline cites the Georgiadeath case as his most memorable professional experience. Insparing his client from the death penalty, Mr. Cicilline not onlypersuaded a seemingly obstinate jury, but opposed the old boynetwork of prosecutors and judges of Lee County, an enclavenestled in Georgia’s Bible Belt. We spoke with Mr. Cicillineto learn more about this career. Below are excerpts from ourconversation:Who were your mentors when you were a young lawyer?[Joseph Belivacqua] was my mentor…but there were a lot ofthese old-timers I remember – Anthony DeSimone, Mike Addio,Ralph Rotondo, Charlie Curran – they were the big-time criminallawyers of that era. And Joe, of course, knew all of them.So we’d go out after work to the Ming Garden. 1 You know,we’d run into all these guys, and we’d talk. They were differentpeople than you find today. They were much gentler, lessaggressive with one another. They were a good breed.What do you think has been the single biggest change in thelegal profession, practicing law since you first started inprivate practice?Well, I think incivility amongst lawyers. I mean, you wouldnever have a case where a lawyer would go talk to your clientand try to solicit him as a client. Today that’s routine. We hadnone of that. I remember if a lawyer would go out to the prisonand talk to somebody and the guy says, “Your lawyer is JackCicilline? You got a fine lawyer.” And get up and leave. But wedon’t have any more of that. It’s a tragedy.What’s been the biggest challenge in your legal career?I’ve made many speeches, and the first question that alwayscomes up is, “How can you represent a guilty man, a personyou know is guilty?” So that’s a problem, getting people tounderstand that; including jurors.What is one of your most inventive or creative legal arguments?I did a murder case up in New Bedford. The defendant wasJerry Ouimette, who was a Trojan around here. And the prosecutorwas a guy who thereafter became a judge, and I saw himten years ago, and he told me that was the toughest case he hadever prosecuted, and he had the case won until I made my finalargument. He said, “You won that case in the final argument.”I spend a lot of time on my final arguments, beginning thembefore the trial starts, because I have a pretty good sense ofwhere the case is going, and then I work on them while the trialis going on. I’m constantly making notes on a side paper – addthis to the final argument. So I spend a lot of time on that.And, for me that’s been an important part of my life and thework I do.What are some of the skills or characteristics that you thinkhave made you so successful?You know something? I think the only thing that I would saythat consistently has been a trait of mine is balls.Perhaps unconventional at times, Mr. Cicilline’s career neverthelesscertainly provides guidance on achieving success in thisprofession – work hard, persevere, overcome obstacles, andshow some guts.1 The Ming Garden was a legendary Chinese food restaurant and bar wheretoday’s legends and yesterday’s young attorneys routinely gathered.Rhode Island Bar Journal March /April 2012 2012 23

EXPERIENCED, THOROUGHLY PREPARED& SUCCESSFUL TRIAL ATTORNEYSince 1984, I have been representing people who have been physically andemotionally harmed due to the criminal acts or negligence of others. I haveobtained numerous million dollar plus trial verdicts and many more settlementsfor victims of birth injury, cerebral palsy, medical malpractice, trucking andconstruction accidents. Between the criminal and civil cases I have been leadcounsel in over 100 jury trial verdicts.My 12 years of working in 3 different prosecutors’ offices has led to myenduring commitment to seek justice.I welcome your referrals. My case load is exceptionally small.I do and will continue to personally handle every aspectof your client’s medical malpractice or serious personalinjury case from beginning to end.THE LAW OFFICE OF DAVID MOROWITZ, LTD.www.morowitzlaw.com155 SOUTH MAIN ST., SUITE 304, PROVIDENCE, RI 02903(401) 274-5556 (401) 273-8543 FAXI am never too busy to promptly returnall phone calls from clients and attorneys.24 March /April 2012 Rhode Island Bar Journal

BOOK REVIEWSClass Warfare: Inside the Fight to Fix America’s Schoolsby Steven BrillThe Death and Life of the Great American School System:How Testing and Choice are Undermining Educationby Diane Ravitch*Anthony F. Cottone, Esq.Sole practitioner &Providence Deputy CitySolicitor & Chief of Litigation…it is hard to seehow we could evermake substantialprogress in oururban publicschools withoutfirst reachingagreement oncommonsensicalconclusions…Almost thirty years ago, President RonaldReagan’s Commission on Excellence in Educationgave birth to the modern education reformmovement by publishing what Diane Ravitchdescribes in her most recent book, The Deathand Life of the Great American School System,as “the all time blockbuster of education reports.” 1As Stephen Brill notes in his new book, ClassWarfare: Inside the Fight to Fix America’sSchools, 2 the report, A Nation at Risk: TheImperative for Educational Reform openedwith the claim that “the educational foundationsof our society are presently being erodedby a rising tide of mediocrity that threatens ourvery future as a nation and a people.” 3It is now fair to say that risk has becomereality. Despite the federally-mandated testingregime initiated by the federal No Child LeftBehind Act of 2001 (NCLB), 4 and despite thefact that federal education funding to localschools increased by some 40 percent in theyears following NCLB, 5 Brill notes that “we’renot just behind – way behind – countries likeChina, South Korea, and Japan, whose educatedmasses our media typically depict as threateningout competitiveness. We’re also behindEstonia, Slovenia, Poland, Norway, NewZealand, Canada and the Netherlands…” 6In Warfare, Brill, drawing upon his skills asa journalist, tells the stories of some of the leadingnew reformers in short, readable, chronologically-arrangedchapters which manage toconvey a sense of excitement and suspense.Death, while more argumentative than narrativein format, is no less eloquent, although, attimes, repetitive.As Ravitch notes, the latest reform agenda is,in broad strokes, all about “accountability andchoice.” 7 The accountability prong emphasizesthe utility of uniform testing as one way tomeasure the effectiveness not only of schooldistricts and individual schools, but also ofteachers. Whereas the choice prong encouragesthe opening of presumably high-achieving charterschools, which are not burdened by some ofthe contractual constraints of their public counterparts,to offer some choice, model effectivepolicies and, hopefully, motivate traditionalpublic schools. The agenda defies traditionalideological labels by combining a conservative’sfaith in the utility of free markets with a liberal’sfocus on the urban poor. However, Brill andRavitch have very different views on the agenda’slikely impact, as is apparent from theirrather testy exchanges on C-Span. 8The New Faces of ReformBrill tells the story of Teach for America(TFA) program founder Wendy Kopp, whohatched the idea for TFA while a student atPrinceton in 1989. Convinced that “‘today’saverage teacher comes from the bottom rungs ofacademic achievement,” and that promising students“viewed teaching as a downwardly mobileoccupational choice,” 9 Kopp put together abusiness plan to recruit high-achieving studentsfrom top colleges to teach for two years atpublic schools in underprivileged communities,and founded TFA in 1990. 10 By 2010, TFA wouldbe the largest single employer of students inPrinceton’s, as well as Yales’ and Harvard’s,graduating class, drawing applications from anastounding 15-18 percent of all three schools’seniors.” 11Brill and Ravitch both support the conceptof TFA, while recognizing that it is by no meansthe complete answer. As Ravitch notes, “TFAsends fewer than 10,000 new teachers eachyear into a profession with nearly 4 millionmembers.” 12As Brill tells it, some of the driving conceptsbehind the reform agenda originated in a1999 Harvard Business School class entitledEntrepreneurship in the Social Sector attendedby Jonathan Schnur, who had worked in theClinton administration on education issues andwho was moonlighting as an education policyadvisor to the Gore presidential campaign, andMichael Johnston, a former TFA volunteer inthe Mississippi Delta. At the time, both wereactually students at Harvard’s Kennedy Schoolof Government, but thought that the businessRhode Island Bar Journal March /April 2012 2012 25

Structuring tax-deferred exchangesthroughout the U.S.with Integrity and ExperienceCharles J. Ajootian, Esq.President and CounselRhode Island’s leading Intermediary since 1997.RHODE ISLAND PRIVATE DETECTIVES &PROTECTIVE SERVICES LLCFormer Federal Agents & Police InvestigatorsLicensed in RI & MAHenry Roy, Senior Partner* INVESTIGATIONS* ARMED SECURITY* FINGERPRINT SERVICESwww.riprivatedetectives.comwww.bodyguard.comNapoleon Brito, Managing PartnerOne Richmond Square Suite 125B (401) 421-5705Providence, Rhode Island 02906info@riprivatedectives.comschool elective “seemed like a goodcourse for someone who wanted tochange the nation’s schools.” 13 Soon afterthey met, Schnur and Johnston co-foundedNew Leaders for New Schools(NLNS), a non-profit organized “to pickout star teachers, train them intensely asprincipals, and place them in charterschools or public school systems lookingfor new blood, then provide support bydonations and government grants, as wellas placement fees…” 14 Six years afterSchnor and Johnston founded NLNS,four other young people interested ineducation reform – Boykin Curry, JohnPetry, Whitney Tilson, and CharlesLedley (who later became famous as thesavvy investor protagonist in MichaelLewis’ 2010 book The R Big Short) – wouldjoin then Senator Barack Obama andothers in Boykin’s Central Park Southapartment to help launch Democrats forEducation Reform (DFER).Brill also recounts Joel Klein’s experienceas New York City Schools Chancellorfrom 2003 to 2010. Klein, althougha brilliant and accomplished lawyer whogained national attention for his effortsto break up Microsoft while head of theJustice Department’s Antitrust Division,and who is now working for RupertMurdoch, had little if any experience inthe field of education when appointedChancellor by Mayor Michael Bloombergin 2003. It was not long after his appointmentthat Klein locked horns with theUnited Federation of Teachers (UFT) overthe expansion of charter schools and variousseniority-related issues embedded inthe parties’ collective bargaining agreement(CBA). As Brill noted, the CBA was“layered over with all kinds of byzantineprocedures for teachers to engage in along, three-stage grievance process, inwhich they could protest just about anythingrelated to how they were managedby their principals.” 15What followed was a protracted battleover the terms of the expired CBA. However,Klein made little progress as a negotiator.The impasse ended only afterMayor Bloomberg agreed, on the eveof his re-election, to most of the union’sdemands regarding seniority in returnfor some limited concessions regardingthe arbitration process. 16To would-be reformers, this type ofmayoral capitulation on the eve of anelection illustrates that much of the problemwith public education lies with theintransigence of the teachers’ unions,which, as reformers like to put it, advance26 March /April 2012 Rhode Island Bar Journal

the interests of adults at the expense ofchildren. Brill claims that “much of thefundamental dynamic in labor-managementrelations – an adversarial process –was largely absent when it came to politiciansnegotiating with public employeeunions, let alone with the union that wasfast becoming the largest, richest, andmost politically powerful union in thecountry… in Democratic strongholds,teachers could pretty much decide thefate on Election Day or Primary Day ofthe local officials who negotiated theircontracts. 17The Billionaires Boys’ Club Takes onthe Teachers’ UnionsFrom 1989 through 2010, the teachers’unions contributed some $60.7 million tocandidates for federal office, with 95 percentgoing to Democrats. 18 In fact, thetwo national teachers’ unions, theNational Education Association (NEA)and its rival, and more moderate, UFT,“donate three times more money toDemocrats than any other union orindustry group” and their members“account for more than 25 percent of allunion members in the country and 10-15percent of the delegates to the DemocraticParty convention that chooses the presidentialnominee. 19 Thus, as Brill noted, “ifunions were the base of the DemocraticParty, teachers were the base of the base.” 20Ravitch, while simply ignoring thepolitical muscle of the teachers’ unions aswell as the well-documented inability ofschool districts throughout the countryto manage the schools due to restrictiveCBAs imposed by the teachers’ unions,with the help of mandatory mediation,arbitration and impasse procedures, 21defends the unions by suggesting theyare needed so teachers can “think, speakand teach without fear,” 22 and so teacherscan obtain adequate salaries and decentworking conditions. 23 The rationale seemssomewhat antiquated in light of theplethora of civil rights laws that nowprotect teachers and other public servants,24 as well as the fact that teachersat non-union charter schools are, onaverage, paid more. 25 Oddly, Ravitch failsto mention what Brill sees as the bestcase for the continued existence of theteachers’ unions, which is the pivotal rolethey could play in bringing about neededreform.In any event, the contest betweenunions and would-be reformers becamea little less one-sided as education reformcaptured the attention of some of theBANKRUPTCYLaw Office of Steven J. Hart328 Cowesett Avenue, Suite 3West Warwick, RI 02893telephone: (401) 828-9030facsimile: (401) 828-9032email: hartlaw@cox.netAttorney to Attorney Consultations / ReferralsWe 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 March /April 2012 2012 27

Call 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.comrichest men and foundations in the world.By 2002, the nation’s two top philanthropies,the Bill & Melinda Gates Foundationand the Walton Family Foundation,were alone responsible for 25 percent ofall private funds contributed to elementaryand secondary schooling, accordingto Ravitch. 26Ravitch, who, as noted, all but ignoredthe millions contributed by the teachers’unions to Democratic candidates, spenta lot of time in Death bemoaning theinvolvement of private foundations,which she believes are a threat to democracy.“As their policy goals converged,”Ravitch contends that these private foundations,which are accountable to no one,“set the policy agenda not only forschool districts, but also for states andeven the U.S. Department of Education.” 27Klein and other would-be reformersalso support the expansion of charterschools. To reformers, the ability of somecharter schools to dramatically increasethe performance, by any measure, ofstudents with the same troubled backgroundsas those in the traditional publicschools, proves what effective teacherscan accomplish. On the other hand, asBrill notes, “in Weingarten’s world, charterschools were to teachers’ unions andconventional public schools what Toyotaor Honda had been to the autoworkers’union and the big three Detroit automakers.”28According to Ravitch, the nominalgains seen by some charter schools resultedfrom dealing only with those motivatedstudents likely to apply for admission. 29Ravitch makes the commonsensical pointthat diluting the traditional public schoolsof even some of the more motivated studentsimpoverishes the learning environmentfor those left behind. 30 Thus, shesees charters as a threat to neighborhoodpublic schools, “the one local institutionwhere people congregate and mobilize tosolve local problems, where individualslearn to speak up and debate and engagein democratic give-and-take with theirneighbors.” 31Ravitch appears to overstate thereformers’ actual claims for the charterschools and exaggerates the threat theypose to traditional public schools inorder to make her point, as she does inother contexts. 32 And, she presents nopractical alternatives, other than tobemoan the loss of the neighborhoodpublic school, an institution which, whateverone might say about its civic utility,is not doing a very good job educating28 March /April 2012 Rhode Island Bar Journal

Defense Counsel of Rhode Island Celebrates Its Tenth AnniversaryMichael B. Isaacs, Esq., Defense Counsel of Rhode Island Executive DirectorOn October 13, 2011, Defense Counsel of Rhode Island(DCRI) celebrated its tenth anniversary at the Citizens BankRotunda. DCRI president Howard A. Merten introduceddeans of the defense bar Joseph A. Kelly and Joseph J.McGair, who provided the evening’s entertainment witha roast of the founders and first three presidents; GeraldC. DeMaria, James T. Murphy and John A. Tarantino. TheTenth Anniversary Celebration Committee was chaired byKaty A. Hynes and included Thomas R. Bender, John F.Kelleher and DCRI executive director Michael B. Isaacs.The Rhode Island Association of Defense Trial Counselwas founded as an unincorporated association in 2001 byorganizers Gerald C. DeMaria, who served as the association’spresident, and James T. Murphy, who was the first vicepresident and president-elect. In November 2003, the associationchanged its name to Defense Counsel of Rhode Islandand incorporated.DCRI is an advocate for the interests of businesses, individualsand its members in the state legislature and in thecourt system. Over the past ten years, the association hasexpanded the services provided to the membership, offeringCLE courses, social events and legislative activity. DCRImembers include lawyers engaged in private practice, corporatecounsel and insurance company counsel. In recognitionl-r: Joseph A. Kelly, Gerald C. DeMaria, Joseph J. McGair, John A.Tarantino, James T. Murphy.of the growth of DCRI and the level of services provided,in 2009, DCRI was the recipient of the Rudolph A. JanataAward which DRI (the national association of the civildefense bar) presents annually to an outstanding state orlocal defense bar association. For more information aboutDCRI, contact Executive Director Michael B. Isaacs at(401) 884-7307 or email: dcri@defensecounselri.org or visitwww.defensecounselri.org.the urban poor. It hardly makes senseto hold all public school students in ourcities hostage until the regrettable petpeeves of the far right become less fashionable,and we are able to implementsensible national standards.Predictably, Ravitch is no fan of Raceto the Top, President Obama’s signatureeducation initiative. Without seeing thelogical contradiction, Ravitch claimsRace to the Top, NCLB and support forcharter schools all represent unnecessaryintrusions of federal control into whatshould be local decisions, while at thesame time attacking the programs asattempts to privatize public education.As she opines towards the end of Death,“Deregulation contributed to the nearcollapse of our national economy in2008, and there is no reason to anticipatethat it will make education better formost children.” 33In fact, it is the pre-NCLB status quoadvocated by Ravitch, not the focusedfederal initiatives illustrated by NCLBand Race to the Top, which resemble thelaissez faire approach which arguablycaused the collapse of both our financialsystem, as well as our urban publicschools. Contrary to Ravitch’s argument,the latest education reform agenda defiesideological classification, although advocateslike Ravitch are evidently wellaware of the political utility of aligningBarack Obama with Milton Friedmanand attempting to cram reformers intoinappropriate ideological boxes.ConclusionDo the TFA program and charterschools improve student performancein the aggregate, or merely provide slightgains to some fortunate students at theexpense of the many who are left in traditionalpublic schools? Are neighborhoodschools in our larger cities worthpreserving as a bastion of communityand participatory democracy, or does thede facto class segregation in our citiesdictate that we attempt to even the scalesby providing some choice to disadvantagedinner city parents?As is evident from Warfare and Death,top leaders in education cannot agree onthe correct answers or the conclusions tobe drawn from the copious data generatedby NCLB and other studies over thelast decade. Too often, the issues areframed as either/or, whereas, in reality,it appears there is some role for testingin evaluating both students and teachers,and charter schools can play a role inbuttressing the neighborhood publicschool.In Warfare, Brill noted that it alwaysconfounded New York City SchoolsChancellor Joel Klein that UFT PresidentRandi Weingarten, who is a lawyer,“never admitted who her real – and only– clients were. Her counterparts at therival NEA had no compunction aboutwhom they worked for. But Weingarten’sline was always that what was good forteachers was always good for children.” 34Policy makers should begin any considerationof the relevant issues by finallyputting to rest the myth that the interestsof teachers and students are synonymous.It should not take overwhelming andunambiguous statistical data to reach thecommonsensical conclusions that: 1) theteachers’ unions are interest groups thatcontinued on page 46Rhode Island Bar Journal March /April 2012 2012 29

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.30 March /April 2012 Rhode Island Bar Journal

Parental Alienation Syndrome in DivorceBarbara A. Barrow, Esq.Moore, Virgadamo & Lynch,Ltd.If a parent choosesto play the alienationgame, it isthe children whoultimately pay.When parents divorce and children are involved,at times, the case takes on dimensions of distrust,coercion and manipulation. If the partiescannot mediate and/or come to agreement, overtime, emotional turmoil escalates, issues fester,and the parents may find it difficult or areunable to act in the best interests of their children.My intent is to increase awareness of thephenomenon of Parental Alienation Syndrome(PAS) and the surrounding controversy.Parental Alienation Syndrome (PAS) describesa phenomenon where one parent attempts togarner the love and respect of the children andturn them against the other parent. Unclear intemperament and difficult to define, argumentsboth for and against PAS recognition abound inboth the psychiatric and legal professions.The American Psychological Association(APA) is presently considering whether toinclude Parental Alienation Syndrome in its catalogof mental disorders. The term was introducedin the 1980’s by Richard A. Gardner, M.D.who worked to educate courts about PAS andfor its acceptance in the scientific community.This work has continued through the efforts ofRichard A. Warshak, M.D., author of articlesand books on the subject, and others.At the annual 2011 International Conferenceof the Association of Family and ConciliationCourts, there was a debate on whether this syndromeshould be included in the APA Diagnosticand Statistical Manual (DSM-5). Some courtshave found that PAS is sufficiently established tohave gained general acceptance in the scientificcommunity 1 and parental alienation is recognizedand referred to in recent cases. 2 RhodeIsland has not yet addressed the issue.However, this is a hotly debated topic amongprofessionals. Opponents, including Joan Meier,George Washington University Law School professorand domestic violence and child custodyauthor who considers PAS a “fabricated notion,”maintains PAS is a perilous concept used toredirect attention from the target parent’s abusivebehavior and to divert any attention fromthe emotional chaos the children suffer in anabusive home. 3 Some states have refused toadmit expert PAS testimony. 4When a one parent obtains placement ofminor children, temporarily and/or permanently,in most cases, that parent is entitled to childsupport from the other parent. In our adversarysystem, this can translate to children being usedas pawns in the divorce proceedings. Thus,efforts to win placement of the children cancloud what might be in the children’s best interests.In a very complex web of presentation,courts must make difficult determinationsregarding with whom the children will live.PAS proponents point to red flags of alienation.The alienating parent limits contactbetween the children and the target parent.Telephone communications may be blockedby the alienating parent. Time spent with theminor children begins to deteriorate. Disparagingremarks about the target parent are madeto the children who may or may not be awarethese are designed to align them with the alienatingparent. In some cases, contact may be severeddue to the children’s subsequent reluctanceto see the target parent.The reaction of the children to divorce proceedings,internalization of emotions and languageof the alienating parent can result in thechildren mimicking and reinforcing the alienatingbehavior. After a time, they believe whatthey are saying because their concept of thetruth is distorted by the alienating parent’smanipulation. In cases where children refuse tovisit, the target parent may give up on reluctantchildren. A lack of willingness of the alienatingparent to sincerely encourage visitation simplyincreases alienation.The silver bullet is an abuse allegation makinga resounding echo in the courtroom, oftenleading to increased litigation. While the allegedconduct may not rise to actual abuse and neglect,intervention may be necessary merely todispel the allegation. Appointment of a guardianad litem, as well as extensive investigation ofthe children by psychiatric professionals andprovision of counseling services for the family,may be ordered at the increased expense of thelitigants.In Rhode Island, consideration of the “bestinterest” factors, delineated in the PettinatoRhode Island Bar Journal March /April 2012 2012 31

BANKRUPTCYRevens, Revens & St. PierreJames E. Kelleher946 Centerville RoadWarwick, RI 02886(401) 822-2900 telephone(401) 826-3245 facsimilejamesk@rrsplaw.com emailAttorney to Attorney Consultations/ReferralsDAVIDW. DUMASATTORNEY AT LAW5 DIVISION STREETEAST GREENWICH, RI 02818MISSING HEIRS LOCATED - GENEALOGYCONSULTATION ON DIFFICULT TITLES401-884-3678JOSEPH A. KEOUGHRetired Magistrate Judge /Rhode Island Superior CourtIs Now Available ForMediation & Arbitration ServicesTorts, Business Disputes, Domestic Matters110 Armistice Boulevard, Pawtucket, RI 02860(401) 724-3600 jakemast@aol.comAlternate Dispute Resolutioncase, augments the wide discretion ofthe trial justice. 5 When these factors areweighed by the trial justice, no singlefactor should be determinative. In highconflict divorce cases, if abuse issuessurface, the court must first determinewhether any abuse occurred and whethervisitation should take place.The Rhode Island Supreme Court hasheld that visitation rights “should bestrongly favored and should not bedenied absent extreme circumstances.” 6Nevertheless, there may be instanceswhere termination of visitation is necessarybecause the parent is found unfit.The court must make findings of fact inall hearings regarding denial of visitation.See R.I. Gen. Laws § 15-5-16 (e). Eachfamily has their own unique dynamic forthe court to review.There are many facets and difficultiesarising through divorce and separationof a family. PAS is a topic of debate andsomething that either parent may exploit.If a parent chooses to play the alienationgame, it is the children who ultimatelypay.ENDNOTES1 Bates v. Bates 18th Judicial Circuit, DupageCounty, IL Case No. 99D958, Jan 17, 20022 The Supreme Court of New HampshirePortsmouth Family Division No. 2009-806; In TheMatter of James J. Miller and Janet S. Todd(Opinion Issued: March 31, 2011)Matter of Bond v. MacLeod 2011 NY Slip Op03153 509360 Appellate Division of the SupremeCourt of New York, Third Department (DecidedApril 21, 2011)3 Meier, Joan S.: A HISTORICAL PERSPECTIVE ONPARENTAL ALIENATION SYNDROME AND PARENTALALIENATION, Journal of Child Custody, 6:232–257,20094 People v. Fortin, 706 N.Y.S.2d 611 (Co.Ct. 2000)5 Pettitano v. Pettitano 582 A.2d 909 (R.I. 1990)Factors: “the wishes of the child’s parent or parentsregarding the child’s custody; the reasonable preferenceof the child, if the court deems the child to beof sufficient intelligence, understanding, and experienceto express a preference; the interaction andinterrelationship of the child with the child’s parentor parents, the child’s siblings, and any other personwho may significantly affect the child’s bestinterest; the child’s adjustment to the child’s home,school, and community; the mental and physicalhealth of all individuals involved; the stability ofthe child’s home environment; the moral fitness ofthe child’s parents; the willingness and ability ofeach parent to facilitate a close and continuousparent-child relationship between the child and theother parent.”6 Hervieux v. Hervieux, 603 A.2d 337 (R.I. 1992)❖32 March /April 2012 Rhode Island Bar Journal

Lawyers on the MoveR.J. Connelly, III, Esq. received the non-profit Alliance forBetter Long Term Care’s, the designated office of the RhodeIsland State Ombudsman for Long Term Care, Hero Award.Paul M. Kessimian, Esq. is now a partner of Partridge Snow& Hahn LLP, 180 South Main Street, Providence, RI 02903.401-861-8200Bethany A. Macktaz, Esq. opened Macktaz Law, Inc., 127Dorrance Street, Penthouse, Providence, RI 02903.401-490-0717 Bethany@Macktazlaw.comVictor J. Orsinger, Esq., William A. Nardone, Esq., Jon D.Lallo, Esq., and Matthew H. Thomsen, Esq. are pleased toannounce the formation of Orsinger Nardone Lallo &Thomsen, Attorneys and Counselors at Law, 42 GraniteStreet, Westerly, RI 02891.401-596-2094 vjo@onltlaw.com wan@onltlaw.comjdl@onltlaw.com mht@onltlaw.comAnn Marie Paglia, Esq. is now Staff Counsel for ChartisInsurance at the law firm of Long & Leahy, 100 SummerStreet, Boston, MA 02110.617-235-7968 AnnMarie.Paglia@chartisinsurance.comJoshua N. Pila, Esq. is now Senior Counsel for LIN Media,One West Exchange Street, Suite 5A, Providence, RI 02903.401-457-9525 joshua.pila@linmedia.comDavid E. Revens, Esq., a partner in the law firm of Revens,Revens & St. Pierre, was chosen as Lawyer of the Year forhis zealous client advocacy and community service commitmentby the Kent County Bar Association.Ronald Thompson, Jr., Esq. moved the Law Offices ofRonald Thompson to 74 East Street, Pawtucket, RI 02860.401-475-9595 Attron@aol.comwww.immigratetorhodeisland.comFor a free listing, please send information to: FrederickD. Massie, Rhode Island Bar Journal Managing Editor, viaemail at: fmassie@ribar.com, or by postal mail to his attentionat: Lawyers on the Move, Rhode Island Bar Journal,115 Cedar Street, Providence, RI 02903.LAW OFFICE OFH ENRY V. BOEZI III, P.C.U.S. TRADEMARK SEARCHESAND REGISTRATIONSU.S. COPYRIGHT SEARCHESAND REGISTRATIONSU.S. PATENT SEARCHESDOMAIN NAME REGISTRATIONAND DISPUTE RESOLUTIONINTELLECTUAL PROPERTYLITIGATIONM.I.P. – MASTER OFINTELLECTUAL PROPERTYIf your 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 ExaminersValuingBusinessessince198467 CEDAR STREETS UITE #105P ROVIDENCE, RI 02903VOICE: 401.861.8080 FAX: 401.861.8081EMAIL: HVBoeziIII@aol.comWEBSITE: www.hvbiiilaw.comwww.DeLisiAndGhee.com989 Reservoir AvenueCranston, n, RI 02910401.944.090000Leo@DeLisiAndGhee.comBUSINESS VALUATIONSARE ALL WE DO. ALL DAY.EVERYDAY.Rhode Island Bar Journal March /April 2012 2012 33

Proposed Title Standards Revisions Open for Bar MemberReview and CommentThe Rhode Island Bar Association’s Title Standards andPractices Committee, chaired by Michael B. Mellion, Esq.,voted unanimously to submit the following proposed TitleStandards revisions to the Rhode Island Bar Association’sExecutive Committee for its consideration. Bar members areinvited to comment on these proposed changes, no later thanApril 15, 2012, by contacting Rhode Island Bar AssociationExecutive Director Helen Desmond McDonald by email:hmcdonald@ribar.com.Revisions Appear in Bold TypeDRAFT STANDARD 5.7SECTION V CONTINUEDSTANDARD 5.7PROOF OF SUCCESSION OF ENTITYIn the event that an entity holding record title to an interestin real estate has changed its name, has merged into or beenconverted into another entity, or has otherwise undergone asuccession affecting its existence as an entity, informationregarding such succession obtained from the websites of oneor more of the governmental agencies named below (or theappropriate successors of those agencies), and recorded inthe manner described below, shall be deemed conclusive evidenceof the entity’s succession for all purposes, unless evidenceto the contrary is recorded in the land evidencerecords, or such contrary evidence is presented by a party toa transaction involving the entity’s interest in the real estate.The governmental agencies from whose websites informationmay be obtained are:1. The Rhode Island Department of Business Regulation;2. The Rhode Island Secretary of State;3. The Secretary of State of the state in which the entity wascreated;4. The Secretary of State of any other state;5. The Federal Deposit Insurance Corporation;6. The Federal Reserve (National Information Center);7. The Office of the Comptroller of the Currency; and8. The Office of Thrift Supervision.The information shall consist of actual printouts of pagesfrom the websites of the agencies documenting the successionof the entity, which pages must include evidence identifyingthe website from which it was obtained.The printouts must be attached as exhibits to an affidavitexecuted by: (a) an officer of the entity holding record titleto the interest, or an attorney representing that entity; (b) anofficer of the entity which succeeded to the interest of theentity holding record title to the interest, or an attorney representingthat entity; (c) an attorney representing a party to atransaction involving the real estate, or (d) an attorneyemployed by a title insurance company licensed to do businessin the State of Rhode Island, which affidavit attests tothe facts of the entity’s succession and to the fact that theprintouts were obtained from the agency’s website. The affidavitmust be recorded in the land evidence records in thecity or town where the real estate is located.COMMENT:The best evidence of the change of an entity’s name, or thefact that it has undergone a succession affecting its existenceas an entity, is an original certificate from the Secretary ofState of the state where the entity was created, or of thestates where the entity or entities that succeeded to the originalentity were created.If such certificates cannot be timely obtained and recorded,or federal agencies are involved which either do not providesuch certificates or cannot provide them in a timely manner,an affidavit meeting the requirements of this standard willserve as an acceptable substitute.As of the date of approval of this Title Standard, the websiteaddresses of the governmental agencies referred to are setforth below.AGENCYWEBSITE ADDRESSRhode Island Department ofBusiness Regulationwww.dbr.state.ri.usRhode Island Secretaryof Statewww.sos.ri.gov/corpsearchinput.aspFederal DepositInsurance Corporationwww3.fdic.gov/idaspNational Information Center ofthe Federal Reservewww.ffiec.gov/nicpubweb/nicweb/nichome.aspxOffice of the Comptroller of the Currencywww.occ.treas.gov/topics/licensing/national-bank-lists/index-national-bank-list.htmlOffice of Thrift Supervisionwww.ots.treas.gov/?p=institutionsearch34 March /April 2012 Rhode Island Bar Journal

Proposed Revision to Standard No. 8.5SECTION VIII CONTINUEDSTANDARD NO. 8.5RECITALSAny conveyance or other instrument which has been a matterof record for twenty (20) years in the office of landrecords of any municipality in this state shall be evidencethat recitals therein as to death, birth, age, intestacy, familyhistory, heirship, relationship, name change, merger, conversion,consolidation or other succession of an entity, or thehappening of any condition or event which may terminate anestate or interest, are true insofar as they affect title to anyinterest in real estate which such instrument purports to conveyor create, unless there is affirmative record evidence tothe contrary.History: This Title Standard was originally approved on July14, 1978. The standard was revised to reduce the number ofyears from thirty (30) to twenty (20) to conform with Rule901 of the Rhode Island Rules of Evidence. Revisionapproved by the Title Standards and Practices Committee onDecember 2, 1993 and by the Executive Committee onAugust 25, 1997.FORM 11AFFIDAVIT AND MEMORANDUM OF NOMINEETRUST UNDER RIGL 34-4-27Now comes the undersigned, _________________________ (Name ofTrustee) of the City/Town of _________________________, State of_________________________, upon oath and depose as follows:1. _________________________ (Names of all Settlors) created The_________________________ (Name of Trust) pursuant to thatcertain Declaration of Trust dated _____________________ (Dateof Trust) (the “Trust”), in which _________________________(Names of all original Trustees) was/were named asTrustee(s) (the “Trustee”).2. [ ] The Trust was amended or restated on the followingdates: _________________________,and the Schedule of Beneficiaries was restated on_________________________,OR[ ] The Trust has not been amended or restated.3. The current and sole Trustee(s) of said Trust is/are_________________________ (Names of current Trustees).4. The Trustee(s) has/have the power to perform acts asTrustee(s) only with the written direction of the beneficiariesof the Trust.5. The Trustee has the authority to convey, mortgage, lease,grant restrictions or easements or any other interest inreal estate only with the written direction of the beneficiariesof the Trust.6. [ ] The Trust has not been revoked or otherwise terminatedand is presently in full force and effect;[ ] The Trust was revoked or terminated on_________________________ (Date) and the Trustee(s)has/have the power to convey trust property to effectsuch revocation or termination pursuant to[ ] The terms of the Trust; or[ ] Rhode Island General Laws § _________________________; or[ ] Other (describe):_____________________________________________.7. The Trustee(s) is/are replaced and successor trustees areappointed by written instrument signed and acknowledgedby beneficiaries holding not less than _________________(____%) percent of the beneficial interest in the Trust.8. The Trust terminates on _________________________ or soonerupon receipt by the Trustee of a notice of termination inwriting signed and acknowledged by beneficiaries holdingnot less than _________________ (____%) percent of thebeneficial interest in the Trust.9. The Trust is revocable and/or may be amended by writteninstrument signed and acknowledged by beneficiariesholding not less than _________________ (____%) percent of thebeneficial interest in the Trust.10. The undersigned is/are authorized to and have the fullpower to execute this Affidavit or Memorandum of Trustpursuant to the Trust instrument.11. [ ] As of the date hereof the Settlor(s) is/are alive,OR[ ] The Settlor(s) died on _________________________ in theCity/Town of _________________________ in the State of_________________________.12. Since its creation, the only beneficiaries of the Trust havebeen _________________________ (Names of all beneficiaries).13. _________________________ are the current and sole beneficiariesof the Trust and they have authorized and directed theTrustee(s) of the Trust to _________________________ (Describeact or acts that Trustee has been authorized to take).IN WITNESS WHEREOF, the undersigned has executed thisMemorandum of Trust on this ______________ day of_________________________, _________________________.___________________________________Witness___________________________________(Signature of trustee)STATE OF ___________________________________________COUNTY OF _______________________________________Subscribed and sworn to before me this _________________________day of _________________________, _________________________.__________________________________________________Notary PublicPrinted Name:My commission expires:Rhode Island Bar Journal March /April 2012 2012 35

In MemoriamRobert Burnett, Esq.Robert Burnett, 71, of East Providence,passed away on December 8, 2011.Born in Providence, he was the son ofRoberta Sherwin and Robert Burnett.He is survived by his beloved wife of47 years, Kathleen Cullis Burnett. Bobgraduated from Mount Hermon Schoolin Northfield, MA and WesleyanUniversity in Middletown, CT, wherehe joined a local fraternity. There, heand his fraternity brothers formed thefolk singing group “The Highwaymen”whose song, “Michael Row the BoatAshore,” won a gold record in 1961.Bob joined the Army in 1962, doingbasic training in Fort Dix, New Jerseywhere he met and fell in love with hiswife, the Colonel’s daughter. Afterserving in the military, he lived andsang with The Highwaymen inGreenwich Village at the height of thefolk singing era. He later graduatedfrom Harvard Law School, beginninghis career at the law firm of Edwards& Angell. He later worked forHospital Trust National Bank, Fleet,Bank Boston and Bank of America.He was an active member of both theProbate & Trust Committee of theRhode Island Bar Association and theEstate Planning Council of RhodeIsland. Bob served as chairman of theboard of Moses Brown School, on theboard of the Rhode Island chapter ofthe American Cancer Society, and saton and advised numerous non-profitboards. In 1990, the original “TheHighwaymen” began performing allover the country for 20 years. Bob andhis wife were members of the Chorusof East Providence, and the Chorusrecently honored him for his contributionto music. Bob was recentlyawarded a confirmation that his 13-foot pole-vaulting record at Wesleyanwould remain as the top height withthe equipment of his era. He grew upin Mystic, CT, as an avid sailor andmember of the Mason’s Island YachtClub. Bob maintained his interest insailing throughout his life, racing hisEnsign Bobcat out of the Bristol YachtClub. He also raced in the Newport toBermuda race several times and in manyother sailboat races. Bob was a runnerand completed the Ocean State and theNew York Marathons. He is survived byhis son, Michael and wife Mary-EllenBurnett of Rindge, NH; his daughter,Melissa and husband Anthony Burnett-Testa of East Greenwich, RI; his daughterKatherine and husband Scott McDonaldof West Hartford, CT; his brother Alanand wife Denise, of Mystic, CT; his brotherDavid and wife Nancy, of Norwich, CT;and his brother-in-law, Michael Cullisand wife Susan, of Middletown, NJ.Christopher T. DelSesto, Esq.Christopher T. DelSesto, 77, passed awayon January 10, 2012. Born in Providence,he is survived by his wife of 29 years,Donna Lee. He was the son of the lateLola and Governor Christopher DelSesto.He was a graduate of Classical HighSchool, where he was the state fencingchampion, and a Harvard University andHarvard Law School graduate. He wasan attorney in Rhode Island, first assistantcity solicitor in Cranston in the 1960s,and Cranston councilman-at-large from1965-1971. He served on the CranstonZoning Board, board of directors of theGreater Providence Chamber ofCommerce, the board of directors ofHarvard Law School Association of RI,as a Fellow of the Rhode Island BarFoundation, and as a member of theAmerican Civil Liberties Union. Hejoined Johnson & Wales as general counsel,managed the endowment for manyyears, was on the Johnson & WalesUniversity (JWU) Board of Directors, andhelped establish JWU campuses in SouthCarolina, Virginia, St. Maarten, Sweden,Denver and Charlotte. JWU named theirinformation technology building onWeybosset Street in his honor. A convivialraconteur with a sharp intellect,he loved to gather people around himfor a challenging debate. In addition tohis wife, he is survived by his children:Geoffrey DelSesto and wife Sherry ofNatick, MA; Gabrielle Lesser and husbandRichard of Hastings-on-Hudson,NY; Eric DelSesto and wife Sharnethof Lafayette, CA; Christopher MarkDelSesto and wife Jennifer of Hudson,NH; Karen DelSesto of Richmond, RI;Amy DelSesto of Grenoble, France; hisstepsons Tom Funk and wife Elizabethof Bristol, VT; and James Lee and wifeYuQing of Belmont, MA; brothersRonald DelSesto and wife Deborah ofProvidence; Gregory DelSesto and wifeJanice of Ft. Lauderdale, FL; formerwives Carol Maccarone of Cranstonand Marina Ewart of Westborough,MA; and 13 grandchildren.Robert N. Greene, Esq.Robert N. Greene, 89, of Palm Desert,CA, passed away on January 4, 2012.He was the husband of DorcasParsons Greene for 38 years. Born inProvidence, he was the son of Louisand Anna Donner Greene. A RhodeIsland resident for most of his life, hegraduated from Classical High School,attended Brown University, and graduatedfrom Boston University LawSchool. He was a United States Navyofficer on LST 694 in the PacificTheatre during World War II. He wasa silver life master duplicate bridgeplayer and a ranked Rhode Island andNew England tennis player. For severalyears, he was the Jewish War VeteransJudge Advocate. In addition to hiswife, he is survived by his daughter-inlawElaine Lang Greenstein and twogranddaughters.G. Scott Nebergall, Esq.Rohis G. Scott Nebergall, age 60, ofTiverton, passed away on January 19,2012. He was the husband of CynthiaNebergall for the past 32 years. Scottwas a son of Myrta Myers Nebergallof Kansas City, MO and the lateVernon Nebergall. He was a graduateof the University of Missouri-Columbia, and Pepperdine LawSchool and earned his Masters of Law,Taxation, from Georgetown Law. Anattorney and Partner with EdwardsWildman Palmer in Providence since1984, Scott served as co-chair of the36 March /April 2012 Rhode Island Bar Journal

In Memoriam (continued)Tax Department. Prior to joiningEdwards Wildman, he was a TrialAttorney in the Tax Division of theU.S. Department of Justice and wasa recipient of the Justice DepartmentOutstanding Attorney Award. Duringthe past 19 years, he served as theMunicipal Court Judge in Tiverton.An avid golfer, he was a member ofthe Rhode Island Country Club. Healso enjoyed sailing, particularly cruisingeach summer with his family onhis Baltic 38, Eroica. In addition to hiswife, he is survived by his daughter:Daphne Elizabeth Nebergall of NY,NY; triplets: Christian Spencer, AudreyKatherine and Gregory WilliamNebergall all of Tiverton; and hisbrothers: Mark Nebergall ofAnnapolis, MD, and Jeffrey Nebergallof Marshall, MO.Hon. Robert J. RahillRobert J. Rahill, of North Providence,formerly of South Kingstown, passedaway on January 27, 2012. He wasthe husband of Mary Elaine LeonardRahill for 56 years. Judge Rahill wasborn in Queens, New York, the sonof James and Mary Kerrins Rahill. Hereceived his B. Ed. degree and his M.Ed. degree from Rhode Island College,and he received his law degree fromSuffolk University Law School. Whilecompleting his education, Judge Rahillalso served his country first in the UAAir Force (USAF) Special OperationsSchool and in the USAF Air Commandand Staff College, retiring as a Lt.Colonel in the Rhode Island AirNational Guard. He previously servedas both a teacher and department headat Barrington High School, as theRhode Island Registrar of MotorVehicles, as a member of the AmericanAssociation of Motor VehiclesAdministrators, Executive Secretaryof the State Advisory Council onVocational Technical Education,Director of the State Departmentof Transportation, and as ExecutiveAssistant for Policy in charge ofEvaluations and Recommendations forPolicy Operations. He opened his ownlaw practice with offices in Pawtucket,Warwick and South Kingstown. He wasappointed to the District Court Bench,serving until 2009. Judge Rahill was amember of the Rhode Island BarAssociation, Massachusetts Bar, FederalBar of Rhode Island, and MENSA.Besides his wife, he is survived by hisfour children, Robert J. Rahill, Esq. ofSouth Kingstown, Thomas M. Rahill andhis wife Lauren of Orlando, FL, MaryTomlinson and her husband David ofSouth Kingstown and Catherine Rahillof North Providence.Augusto W. SaoBento, Esq.Augusto W. SaoBento, 85, of Barrington,formerly of Warren, East Providence andNorth Providence, passed away January9, 2012. He was the husband of CarmelaReale SaoBento. Born July 10, 1926, inPawtucket, he was a son of the lateAntonio and Adelaide Reis SaoBento. Hegraduated from Providence College andBoston University Law School. He servedas a U.S. Army military police officer inWorld War II. He was private practice asan attorney for over 50 years in EastProvidence. He served the State of RhodeIsland for almost 30 years, in numerousroles: Chairman of the Third RepresentativeDistrict Committee; Delegate toConstitutional Convention; member ofthe RI State House of Representativesfrom; member of the RI LegislativeCouncil; Assistant Director to LegislativeResearch Department; and Legal Counselto the Speaker of the House. He servedon the East Providence DemocraticCommittee; Disabled American Veterans,East Providence Council, Knights ofColumbus; I.B.E.S. of Rhode Island;P.A.D.C. of East Providence; as theChairman of the Portuguese sectionof Foreign Language Program for theDemocratic Party; and the American,Rhode Island, and Federal Bar Associations.He loved being on the water,fishing on his boat, Ramboa, in hisearly years and was an avid golfer.He was a 25-year resident of TouissetPoint, Warren, where he was a formerTouisset Point Community ClubPresident. He also maintained a residencefor 25 years in Pompano Beach,Florida. Gus was a member of boththe Kirkbrae Country Club in Lincoln,RI and the Montaup Country Club inPortsmouth, RI. In addition to hisbeloved wife of 46 years, he is survivedby his son and daughter: DennisSaoBento and his wife Marie ofWarren; and Cara Boyce and her husbandJohn of Pelham Manor, NY; andhis brother Zita Lanni of NorthProvidence.Michael J. Underhill, Esq.Michael J. Underhill, 54, passedaway on January 23, 2012. Born inSomerville, NJ, he was the son ofMary Louise Daigle Underhill andthe late Harold Underhill; fatherof Michael T. Underhill; brother ofRobert, David, Steven and KarenUnderhill. Mr. Underhill had workedas a self-employed attorney.Please contact the Rhode Island Bar Association if a member you know passesaway. We ask you to accompany your notification with an obituary notice for theRhode Island Bar Journal. Please send member obituaries to the attention ofFrederick D. Massie, Rhode Island Bar Journal, Managing Editor, 115 CedarStreet, Providence, Rhode Island 02903. Email: fmassie@ribar.com,facsimile: 401-421-2703, telephone: 401-421-5740.Rhode Island Bar Journal March /April 2012 2012 37

A Common Sense Approachcontinued from page 9are less likely to assume that the facilityhas something significant to hide.Inspectors must be afforded access tonon-confidential documents. To preparefor the inspectors visit, prepare and maintaina duplicate documents file whichcontains all current non-confidential environmentaldocuments, including permits,monitoring and sampling reports andrelated data. This will make the inspectionmore time efficient as it will preventthe facility personnel from having to separateconfidential and non-confidentialdocuments at the time of the inspection.Pre-inspection planning makes facilitypersonnel available to follow along withthe inspector when the time comes.Someone well-versed in corporate environmentalcompliance programs and inthe operation of the facility shouldaccompany the inspectors at all times.This point person is responsible for ensuringthat the inspection goes “smoothly”by facilitating the inspection so that it isnot unnecessarily complicated and confusionis minimized.The inspection point person shouldbe cooperative and professional, treatingthe inspectors like any other visitor toIMMIGRATION LAWJAMES A. BRIDENBlais Cunningham & Crowe Chester, LLP150 Main StreetPawtucket, RI 02860401-723-1122WORKERS’ 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/Referralsthe facility. On the one hand, an overlyfriendly approach is not likely to keepinspectors from citing deficiencies. Onthe other hand, a rude or condescendingattitude may antagonize the inspectors.Most importantly, the point person’scommunications should demonstrate thecompany’s intent to take the necessarysteps to remedy the violations.The point person should take notesduring the inspection and note areaswhere the inspectors took any photos,and take the same photo from the sameangle with his/her own cell phone camera.This gives the corporation its own recordof the inspection, complete with photostaken simultaneously or immediatelyafter, the inspector leaves. Before aninspector leaves, the point person shouldattempt to get a thorough briefing orsummary from the inspector to furthersupplement this record.It is important to remember that thecorporation is entitled to take split samplesduring the inspection. 27 Taking splitsamples is advisable because of the possibilityof lab error or other testing discrepancy.Facilities are also entitled toreceive a copy of the results of any testor analysis performed on the samples. 28Some violations may be addressedimmediately without waiting for thecompletion of the inspection. In fact, theinspectors may offer some assistance withcompliance options. Other problems mayrequire long term remedial solutions orinvolved outside consultants.Corporate policy should emphasizethe importance of appropriate and cooperativedealings between the enforcementagency and the company’s employees. Ifemployees follow this policy, it will notbe necessary to involve corporate counselin the site inspection. In fact, doing somay be ill advised due to its tendency tolead the inspectors to believe there issomething to hide.d. Equipment ManagementThe ECP should also include regularequipment maintenance inventory. Failureto maintain equipment and the lack of acomprehensive preventative maintenanceprogram are factors that regulators mayconsider in calculating penalties. 29 Therefore,any equipment requiring a permitor that emits regulated substances, shouldbe part of a regular, comprehensivemaintenance program.When considering the efficacy of38 March /April 2012 Rhode Island Bar Journal

emoving a large piece of obsolete ornonfunctioning equipment, keep in mindthe possible impact its presence may haveon permit applications. The potentialfor a nonfunctioning piece of equipmentto emit air toxics, volatile organic compoundsor other hazardous waste streamsmay have to be considered in permitapplications and other filings. The omissionof the equipment from an applicationor inventory report may trigger suspicionon the part of inspectors. It is good practicetherefore to dismantle or otherwiseremove nonfunctioning equipment andreflect such changes on subsequent filings.e. Emergency ResponseRegardless of how an environmentalproblem comes to light, rapid resolutionis the key to minimizing exposure. Onefunction of the ECT is to establish emergencyresponse and notification procedures,with a clear chain of command.This involves review of all applicablestate and federal statutes and regulationsto create a company blueprint forresponding to noncompliance. Frequently,contractors that provide waste haulingservices are willing to assist facilities indeveloping response plans.Certain violations, including somespills, must be reported immediately. 30Therefore, procedures for immediateresponse actions, spill response, containment,and reporting should be clearlyestablished by the ECT. At the very minimum,this requires making the phonenumbers for the National ResponseCenter and any necessary state reportingphone numbers readily available to allemployees. Response plans are an essentialpart of the program and one thatevery employee needs to be familiar within order to implement an effective ECP.ConclusionThere is no question that establishingan effective corporate environmentalcompliance policy requires a significantcommitment of time, personnel andmoney. The advantage of establishingsuch a program prior to any governmentalinvolvement should be clear, however.Corporations that wait to develop aprogram when the government bringsan enforcement action will discover theultimate costs exceed any savings resultingfrom delayed compliance. As publicawareness of corporate environmentalresponsiveness grows, the indirect impactson a company are also likely to increase.Therefore, the benefits of an environmentalcompliance program weigh heavily infavor of its early development.MARK 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. 02809Your Green Building LawyerChristine J. EngustianAttorney at LawOne Grove AvenueEast Providence, RI 02914telephone: 401.434.1250email: cjengustian@gmail.comENDNOTES1 See, e.g., 33 U.S.C. § 1365 (permitting citizenssuits against any person or corporations alleged tobe in violation of a Clean Water Act effluent standard);42 U.S.C. § 7604 (providing for citizen suitsbased on Clean Air Act emission standard violations).2 33 U.S.C. § 1319 (enforcement provisions of theClean Water Act).3 42 U.S.C. § 6928(d).4 Id. at (e).5 U.S. v. Dotterweich, 320 U.S. 277, 285 (1943)(“Balancing relative hardships, Congress has preferredto place it upon those who have at least theopportunity of informing themselves of the existenceof conditions imposed for the protection ofconsumers before sharing in illicit commerce ratherthan to throw the hazard on the innocent peoplewho are wholly helpless”); U.S. v. Park, 421 U.S.658, 672 (1975) (corporate officers have “a positiveduty to seek out and remedy violations whenthey occur, but also, and primarily, a duty toimplement measures that will insure that violationswill not occur”); U.S. v. Ming Hong, 242 F.3d 528,532 (4th Circ. 2001) (corporate officer liablebecause “[a]lthough [the officer] went to greatlengths to avoid being formally associated with[the discharger], in fact he substantially controlledcorporate operations”).6 On prosecutorial discretion, see Heckler v.Chaney, 470 U.S. 821 (1985).7 DEPARTMENT OF JUSTICE, FACTORS IN DECISIONSON CRIMINAL PROSECUTIONS FOR ENVIRONMENTALVIOLATIONS IN THE CONTEXT OF SIGNIFICANTVOLUNTARY COMPLIANCE OR DISCLOSURE EFFORTSBY THE VIOLATOR (July 1, 1991), available atIf you need an experienced lawyer to handle legalmatters related to environmentally-friendly greenbuilding issues, please contact me. First Rhode Island attorney to earn theUnited States Green Building Council(USGBC) Leadership in Energy andEnvironmental Design AccreditedProfessional (LEED AP) designation LEED AP with Building Design andConstruction credential Over 25 years of experience in land use,planning and zoning law, and real estatedevelopment and permitting Member of Rhode Island BuildersAssociation, Rhode Island Chapter ofthe USGBC, Rhode Island Chapter ofthe American Planning AssociationRhode Island Bar Journal March /April 2012 2012 39

http://www.justice.gov/enrd/3058.htm8 Incentives for Self-Policing: Discovery, Disclosure,Correction and Prevention of Violations, 65 Fed.Reg. 19618 (April 11, 2000), available at http://www.epa.gov/compliance/resources/policies/incentives/auditing/auditpolicy51100.pdf.9 Id.10 For information on how this penalty is calculated,see Lynn M. Dodge, ECONOMIC BENEFIT INENVIRONMENTAL CIVIL PENALTIES: IS BEN TOOGENTLE? 77 U. Det. Mercy L. Rev. 543.11 Environment Protection Agency, Q&A’s on EPA’sSmall Business Compliance Policy (May 19, 2004),http://www.epa.gov/compliance/resources/policies/incentives/smallbusiness/smbfactsht.pdf12 Incentives for Self-Policing, supra note 9, at19622.13 Id. at 19623. See also GREEN BUSINESS NET-WORK, COMPLIANCE INCENTIVES FOR BUSINESS: SELF-POLICING, SELF-AUDITING, AND SELF-DISCLOSUREPOLICIES (October 2001), http://www.pneac.org/compliance/smallbusinesscompliance/ci4sb.pdf14 Jeffrey C. Fort, Reporting Lines, Corp. Compl.Series: Envtl. § 2:19 (2010-2011).15 Park, supra note 6, at 6703 (a corporate officercan be found liable in absence of conscious wrongdoingif the officer had the power to prevent theviolation).16 Roger J. Marzulla & Brett G. Kappel, NOWHERETO RUN, NOWHERE TO HIDE: CRIMINAL LIABILITYFOR VIOLATIONS OF ENVIRONMENTAL STATUTES INTHE 1990S, 16 COLUM. J. ENVTL. L. 201, 220(1991)17 Id. at 22418 Annual review is mandatory under the RCRA’straining program requirement. 40 C.F.R. § 265.16(c).19 Whistleblower provisions have been incorporatedinto the major federal environmental laws, includingthe Clean Air Act (CAA), Clean Water Act(CWA), Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA), ToxicSubstances Control Act (TSCA). Michael A. ZodyPELLCORP INVESTIGATIVE GROUP, LLCPrivate InvestigationsEdward F. Pelletier III, CEO(401) 965-9745www.pellcorpinvestigativegroup.comet. al., Responding to Environmental Whistleblower:Listen Carefully to that Sound Coming‘Round the Bend, 51 RMMLF-INST 6 (2005).20 Lynn E. Pollan, CORPORATE COMPLIANCE INENVIRONMENTAL MATTERS: OUTLINE FORDISCUSSION. Practicing Law Institute, CorporateLaw and Practice Course Handbook Series. PLIOrder No. B4-7175 (June 1996).21 Zody, supra note 20.22 Marzulla & Kappel, supra note 17, at 22423 Id.24 See, e.g., 42 U.S.C. § 6927(e)(1) (“TheAdministrator (or the State in the case of a Statehaving an authorized hazardous waste programunder this subchapter) shall commence a programto thoroughly inspect every facility for the treatment,storage, or disposal of hazardous waste forwhich a permit is required under section 6925 ofthis title no less often than every two years as toits compliance with this subchapter.”)25 The standard is probable cause. See National-Standard Co. v. Adamkus, 881 F.2d 352 (7th Circ.1989).26 42 U.S.C. § 6927(a)27 Split samples are those “equal in volume orweight to the portion retained” Id.28 Id.29 Department Of Justice, supra note 8.30 See, e.g., the Clean Water Act self-reportingrequirement. 33 U.S.C. § 1321(b)(5) requires anyperson in charge of an onshore or offshore facilityor vessel to notify immediately the appropriateagency of the federal government as soon as he hasknowledge of any discharge of oil or hazardoussubstance. The appropriate agencies for notificationinclude the United States Coast Guard andhe United State Environmental Protection Agency.Any failure to notify may result in a fine and/orimprisonment. ❖MARC J. SOSS, ESQUIRETITLE CLEARING______________________QUIETING TITLEACTIONS5910 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.Roger C. RossBlais Cunningham& Crowe Chester, LLP150 Main StreetPawtucket RI 02860TELEPHONE: (401) 723-1122FAX: (401) 726-6140EMAIL: rross@blaislaw.com40 March /April 2012 Rhode Island Bar Journal

Default Surrogate Consentcontinued from page 15ent statutory variations can be implemented,it is worthwhile for legislators toconsider the different issues raised here.Also, it is important to note that themajority of commentators still ultimatelyconclude that these statutes should beimplemented. 61A. The Priority ListOne potential problem with surrogacystatutes involves the use of a priority listof, for the most part, family members.While a priority list reflects most individuals’preferences, it does not take intoaccount other factors some may considerwhen choosing a healthcare agent, suchas age and gender. 62Additionally, a problem may still ariseif there is a disagreement between multiplemembers of the available level as towho amongst the group should serve. 63The dispute may be unsolvable if thestatute does not provide a resolutionmechanism. Even if the conflict can beresolved by a majority decision or othermeans, not only was there a disruption infamily harmony, but the chosen surrogatemay not reflect the incapacitated person’spreferred choice from amongst the group.Also, as noted above, most surrogacystatutes do not reflect nontraditionalfamilies, including couples who foregomarriage or civil unions. While somestates have taken the appropriate steps toplace these relationships alongside legallymarried and civil union couples at the topof the priority list, most do not accountfor life partner relationships and insteadthose individuals are delegated to thelower level of “close friends.” 64Some people are estranged from theirfamilies. This means the person responsiblefor the incapacitated person’s medicaltreatment may be someone with hostileor totally indifferent feelings toward thatperson. 65 One possible solution to thisproblem is to better screen individualswith potential conflicts of interest. 66Surrogate selection is more likely to beproblematic when a family-relationshipis dysfunctional rather than harmonious.However, surrogacy statutes do not createmore problems than already exist underthe present system, where uncertainty indifferent family situations is already anissue without a surrogacy statute. 67Another problem with a priority list isthat it may not reflect the views of someethnic or racial groups who have inclusiveor intergenerational notions of family.For instance, there is evidence that Latinoand Asian cultures have a more familialfocus than other groups which may conflictwith surrogacy statutes elevating oneindividual above the rest of the family. 68One study has shown that MexicanAmericans and Korean Americans aresignificantly more likely than other racialgroups to want decisions concerning theuse of life-sustaining treatment made asa family. In addition, in some African cultures,the eldest family member is seen asthe person with the authority to provideTwo Mediators,Two Viewpoints –for the best resolution.Partners in Mediation offers alawyer/therapist team approach, combiningthe experience of family law attorneyJeremy Howe with the therapy experienceof Nancy Johnson Gallagher.BALSOFIORE & COMPANY, LTD.FAMILY & DIVORCE MEDIATIONELDERLAW & PROBATE MEDIATIONFAMILY COURT ARBITRATIONSUPERIOR COURT MEDIATION & ARBITRATIONPENSION MEDIATIONIN NEWPORT, RI:55 Memorial Boulevard, #5FINANCIAL INVESTIGATIONSFORENSIC ACCOUNTING LITIGATION SUPPORTFINANCIAL PROFILES OF INDIVIDUALS AND BUSINESSESLOCATE PEOPLE – ASSET SEARCHESBrian C. Balsofiore, CFEbbalsofiore@cox.netCertified Fraud Examiner (401) 486-7145RI Licensed Private DetectivePARTNERS IN MEDIATIONinformed consent. 69 These beliefs mayconflict with a surrogate statute hierarchygiving a spouse priority above all andplacing adult children before parents andgrandparents. On the other hand,although there may be a concern aboutraising one family member above others,surrogacy statutes still allow families towork together because the person withlegal authority may, and often should,consult with other family members.These different factors related to thepriority list structure should be consideredwhen creating or altering a surrogacystatute listing. In addition, the consensusbasedmodel used in Colorado and HawaiiNancy Johnson Gallagher, LICSWand Jeremy W. Howe, JDCall 401.841.5700or visit us online atCounselFirst.comIN NORTH KINGSTOWN, RI:1294 Tower Hill RoadRhode Island Bar Journal March /April 2012 2012 41

WORKERS’ COMPENSATIONAND SOCIAL SECURITYCONSULTATIONLakeside Office Suite3 Offices Available In Smithfield• 1 with adjacent administrative office• 1 with marble fireplace• Reception desk andwaiting room• Private bath and kitchen• High visibility locationwith ample parking• 8 minutes to Providence2 Douglas PikeSmithfieldContact JackTelephone: (401) 447-4060Email: Jq3@cox.netALBERT J. LEPORE, JR.COIA & LEPORE, LTD.226 SOUTH MAIN STREETPROVIDENCE, RI 02903401-751-5522www.Coialepore.comEmail: aleporej@coialepore.comAttorney-to-Attorney Referralshelps address many of these concerns.However, the major drawback of theconsensus-based model is that it cannotbe implemented as quickly because ofits requirement of deliberation betweenpotential surrogates.B. Excessive Limitations on SurrogateDecision-Making PowersMany surrogacy statutes place excessivelimitations on the authority of decision-makers.70 The greater the limitations,the less effective a statute can be. Whena surrogate’s authority is restricted, courtintervention is still necessary, defeatingone of the main surrogacy statutes’ purposes.Therefore, a surrogate’s decisionmakingauthority should be broad inscope, with appropriate safeguards. 71 Anexample of an appropriate safeguardwould require concurring medical opinionswhen determining whether a patientis incapacitated or whether a surrogatemay withdraw life-sustaining treatment. 72C. Surrogate Decisions May Not ReflectPatient PreferencesResearchers have found default surrogatesmay not necessarily authorize orrefuse treatment reflecting the incapacitatedperson’s preferences. If a patient’swishes are unknown, the surrogate mayhave difficulty predicting those wishesand may, instead, make nonconformingdecisions. 73 Many times surrogates areeither uninformed or unprepared to makemedical decisions. 74 Moreover, some surrogates,even when a patient’s wishes areknown, may not follow those knownwishes and, instead, make decisionsreflecting their own personal views, religiousbeliefs or paternalistic impulses. 75Also, surrogates sometimes believe theyknow the incapacitated person’s wisheswhen, in fact, that belief is mistaken. 76Despite these potential issues, researchshows that default surrogates are statisticallyjust as likely to follow a patient’swishes as appointed healthcare agents. 77While this may seem to raise a problemwith advance directives in general, mostAmericans are much more concernedwith who will be their agent and notthe specific decisions that the agent willmake. 78 Furthermore, it appears thatcourts are no more likely to correctlydetermine an incapacitated person’sunknown preferences and wishes. 7942 March /April 2012 Rhode Island Bar Journal

D. Potential Unethical Behavior bySurrogatesDue to a lack of total congruencebetween patient preferences and surrogateactions, commentators have notedthe default surrogate mechanism couldresult in unethical behavior to the detrimentof the incapacitated person. Forinstance, the surrogate might be motivatedby a financial incentive, such as aninheritance, when making the determinationto remove life-sustaining treatment. 80Another problem may arise if one familymember disagrees, not out of concern forthe incapacitated patient, but rather toseek a form of revenge on other familymembers. A person could be left on futilelife-sustaining treatment to drain thatperson’s savings or inflict emotionalsuffering. 81 One process to address theseethical concerns employs the consensusbasedmodel used in a couple of states. 82By giving many family members a voice,the wrongful decision-making of oneperson is more likely to be prevented.Another option, if the dispute is irresolvable,is for the hospital to provide aboard to review all relevant informationpresented and then make a final determination.83 If these options fail, the surrogacystatute does not cause any detrimentbecause the dispute will instead be takento court in the same manner as if the surrogacystatute had never existed.E. Physician Involvement in Decision-MakingBeyond family members, problemsarise in some versions of DefaultSurrogate Consent Statutes allowingphysicians, despite the decision-makingauthority of the incapacitated person’ssurrogate, to intercede and act contraryto the surrogate’s choices. This is allowedif the physician believes that the surrogate’sdecision is neither in accordancewith the patient’s known wishes or bestinterests. 84 Physician decisions tend toreflect the doctor’s own personal valuesand not the values of the patient. 85 Additionally,doctors could ignore a surrogate’sdecisions for other, unethical reasons.With the rising costs and scarcity of resourcesin healthcare facilities, doctors mayfeel pressured to forego certain treatmentsdue to financial pressures. 86 To addressthese concerns, surrogacy statutes shouldplace a heavy burden upon healthcareproviders before a surrogate’s decisionmay be overridden. 87V. ConclusionRhode Island should strongly considerenacting a Default Surrogate ConsentStatute for the benefit of those whobecome incapacitated without havingappointed a healthcare agent. In addition,it is advisable for all states to revisit existingstatutes to consider changes in societythat have occurred over the past twodecades.Of course, Default Surrogate ConsentStatutes, while an improvement, are not aperfect solution and do contain admittedflaws. This article has not put forwarda specific statutory construction. Instead,if Rhode Island accepts such a statute isneeded, a greater analysis should beundertaken, considering both the differentapproaches in other states, potentialpitfalls and particular circumstances inthe Ocean State.ENDNOTES1 See, e.g., Stanley S. Herr & Barbara L. Hopkins,HEALTH CARE DECISION-MAKING FOR PERSONSWITH DISABILITIES: AN ALTERNATIVE TOGUARDIANSHIP, 271 JAMA 1017 (1994). BernardLo & Robert Steinbrook, RESUSCITATING ADVANCEDIRECTIVES, 164 Archives Internal Med. 1501,1502 (2004) (finding that twenty-five percent ofpatients have advance directives); Christopher B.Rosnick & Sandra L. Reynolds, THINKING AHEAD:FACTORS ASSOCIATED WITH EXECUTING ADVANCEDIRECTIVES, 15 J. Aging & Health 409, 411 (2003)(surveys show low rate of advance directive completion).2 Mary Coombs, SCHIAVO: THE ROAD NOTTAKEN, 61 U. Miami L. Rev. 539, 585 (2007)(noting reasons people do not execute advancedirectives).3 See e.g., ALA. CODE 22-8A-11 and 6 (2007);ALASKA STAT. § 13.52.030 (2007); ARIZ. REV.STAT. ANN. § 20-17-214 (2007); ARK. CODEANN. § 20-17-214 (2007); CAL. PROB. CODE§ 4711 – 4716 (West 2007); COLO. REV. STAT.ANN. § 15-18.5-101 to 103 (West 2007); see alsoAmerican Bar Association Default SurrogateConsent Statutes Chart available at http://www.abanet.org/aging/legislativeupdates/pdfs/Famcon_Chart.pdf (last modified Sep. 1, 2008) (providesan updated listing of enacted surrogacy statutesincluding the noteworthy aspects of each statute).4 Uniform Health-Care Decisions Act § 5 (1993).5 See sources supra note 3.6 Kathleen M. Boozang, AN INTIMATE PASSING:RESTORING THE ROLE OF FAMILY AND RELIGION INDYING, 58 U. Pitt. L. Rev. 549, Part IV.B.3. (1997).7 See e.g., ALA. CODE 22-8A-11 and 6 (2007);ALASKA STAT. § 13.52.030 (2007); ARIZ. REV.STAT. ANN. § 20-17-214 (2007); ARK. CODEANN. § 20-17-214 (2007); DEL. CODE ANN. tit.16, § 2507 (2006); D.C. CODE § 21-2210 (2007).8 Uniform Health-Care Decisions Act § 5(b)(1993).9 Uniform Health-Care Decisions Act § 5(c)(1993).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.Rhode Island Bar Journal March /April 2012 2012 43

10 See e.g., ALASKA STAT. § 13.52.030 (2007);ARIZ. REV. STAT. ANN. § 20-17-214 (2007);ARK. CODE ANN. § 20-17-214 (2007); DEL.CODE ANN. tit. 16, § 2507 (2006); FLA. STAT.§ 765.113 and § 765.401 (2009); 755 ILL. COMP.STAT. 40/1 to 40/65 (2007).11 See, ARIZ. REV. STAT. ANN. § 20-17-214(2007); MD HEALTH-GEN. CODE ANN., § 5-605 (2007); N.M. STAT. ANN. § 24-7A-5 (West2007); WASH. REV. CODE ANN. § 7.70.065(West 2006).12 D.C. CODE § 21-2210 (2007);13 See e.g., ALA. CODE 22-8A-11 and 6 (2007);ARIZ. REV. STAT. ANN. § 20-17-214 (2007);MISS. CODE ANN. §§ 41-41-201 to 229 (West2007); N.Y. PUB. HEALTH LAW §§ 2965 &2966 (2007); N.C. GEN. STAT. § 90-322 (2007);OR. REV. STAT. § 127.635, § 127.505(12) and §High End ValueCalart TowerProvidence address, Cranston convenience(401) 965-7771SelectSuitesShared office environments127.535(4) (2007).14 COLO. REV. STAT. ANN. § 15-18.5-101 to 103(West 2007); HAWAII REV. STAT. §§ 327E-2 andE-5 (2007).15 See sources supra note 3.16 Uniform Health-Care Decisions Act § 5(a)(1993).17 Margaret C. Jasper, THE RIGHT TO DIE 36(Oceania Publications, Inc. 2000).18 See sources supra note 3.19 See, e.g., ARK. CODE ANN. § 20-17-214(2007); CONN. GEN. STAT. ANN. § 19a-571(West 2007); DEL. CODE ANN. tit. 16, § 2507(2006).20 See, e.g., ARIZ. REV. STAT. ANN. § 20-17-214(2007); D.C. CODE § 21-2210 (2007); FLA. STAT.§ 765.113 and § 765.401 (2009).21 See sources supra note 3.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.COM22 Boozang, supra note 6, at Part IV., B., 3.23 See., e.g., ALA. CODE 22-8A-11 and 6 (2007);DEL. CODE ANN. tit. 16, § 2507 (2006).24 See, e.g., IND. CODE ANN. § 16-36-1-1 to 14(West 2006).25 See, Uniform Health-Care Decisions Act § 5(f)(1993); HAWAII REV. STAT. §§ 327E-2 andE-5 (2007); MD HEALTH-GEN. CODE ANN.,§ 5-605 (2007); ME. REV. STAT. ANN. tit. 18-A,§ 5-801 to § 5-817 (West 2007).26 See Mark S. Bishop, CROSSING THE DECISIONALABYSS: AN EVALUATION OF SURROGATE DECISION-MAKING STATUTES AS A MEANS OF BRIDGING THEGAP BETWEEN POST-QUINLAN RED TAPE AND THEREALIZATION OF AN INCOMPETENT PATIENT’S RIGHTTO REFUSE LIFE-SUSTAINING MEDICAL TREATMENT,7 Elder L.J. 153, 180-181 (1999) (examining thelayered approach used in the Illinois surrogacystatute, 755 ILL. COMP. STAT. 40 1-55 (West 1996& Supp. 1997).27 Richard S. Saver, CRITICAL CARE RESEARCHAND INFORMED CONSENT, N.C. L. Rev. 205, 260(1996).28 Andrew T. Wampler, TO BE OR NOT TO BE INTENNESSEE: DECIDING SURROGATE ISSUES, 34 U.Mem. L. Rev. 333, 384 (2004) (citing Vassyl A.Lonchyna, TO RESUSCITATE OR NOT … IN THEOPERATING ROOM: THE NEED FOR HOSPITALPOLICIES FOR SURGEONS REGARDING DNR ORDERS,6 Annals Health L. 209 (1997)).29 Id. at 385.30 Id. at 384 (paraphrasing C.J. Rehnquist’smajority opinion in Cruzan v. Dir., Mo. Dep’t ofHealth, 497 U.S. 261, 283 “We think it self-evidentthat the interests at stake in the instant proceedingsare more substantial, both on an individualand societal level, than those involved in a run-ofthe-minecivil dispute”).31 In re Jobes, 529 A.2d 434, 449 (N.J. 1987).32 Ardath A. Hamann, FAMILY SURROGATE LAWS:A NECESSARY SUPPLEMENT TO LIVING WILLS ANDDURABLE POWERS OF ATTORNEY, 38 Vill. L. Rev.103, 137-138 (1993).33 Jessica W. Berg, et. al., INFORMED CONSENT:LEGAL THEORY AND CLINICAL PRACTICE 120(Oxford University Press 2001).34 Coombs, supra note 2, at 584.35 Hamann, supra note 32, at 140.36 Id. (citing Cruzan, 497 U.S. at 350).37 Id. at 145.38 Id. at 150-151.39 Id. at 158.40 Berg, supra note 33, at 120.41 In re Jobes, 529 A.2d at 449.42 Berg, supra note 33, at 120.43 Cruzan, 497 U.S. at 320.44 Berg, supra note 33, at 119.45 Id. at 120.46 Hamann, supra note 32, at 167.47 Id. at 167-168.48 Nina A. Kohn & Jeremy A. Blumenthal,DESIGNATING HEALTH CARE DECISIONMAKERS FORPATIENTS WITHOUT ADVANCE DIRECTIVES: APSYCHOLOGICAL CRITIQUE, 42 Ga. L. Rev. 979,987 (2008) (citing arguments raised by advocatesof a New York state surrogacy law)).49 William D. Smucker et. al., MODELPREFERENCES PREDICT ELDERLY PATIENT’S LIFE-SUSTAINING TREATMENT CHOICES AS WELL ASPATIENT’S CHOSEN SURROGATES DO, 20 Med.Decision Making 271, 273 (2000).50 Angela Fagerlin et. al., PROJECTION IN44 March /April 2012 Rhode Island Bar Journal

SURROGATE DECISIONS ABOUT LIFE-SUSTAININGMEDICAL TREATMENTS, 20 Health Psychol. 166,171 (2000).51 Hamann, supra note 32, at 162.52 Id. at 165.53 Saver, supra note 27, at 261.54 Jeremy A. Blumenthal, LAW AND THEEMOTIONS: THE PROBLEMS OF AFFECTIVEFORECASTING, 80 Ind. L.J. 155, 221 (2005) (citingKristen M. Coppola et. al., ACCURACY OF PRIMARYCARE AND HOSPITAL-BASED PHYSICIANS’ PREDIC-TIONS OF ELDERLY OUTPATIENTS’ TREATMENTPREFERENCES WITH AND WITHOUT ADVANCEDIRECTIVES, 161 Archives Internal Med. 431(2001)).55 Bishop, supra note 26, at 164.56 Id. at 165 (citing In re Quinlan, 355 A.2d at646, 655; Schloendorff v. Soc’y of N.Y. Hosp., 105N.E. 92 (N.Y. 1914).57 Bishop, supra note 26, at 167 (citing In reQuinlan, 355 A.2d at 667).58 Kohn, supra note 48, at 989 (citing CassSunstein, THE RIGHT TO DIE, 106 Yale L.J. 1123,1130 (1997).59 See sources supra note 3.60 Wampler, supra note 28, at 385.61 See, e.g., Kohn, supra note 48; Aaron N.Krupp, HEALTH CARE SURROGATE STATUTES:ETHICS PITFALLS THREATEN THE INTERESTS OFINCOMPETENT PATIENTS, 101W. Va. L. Rev. 99(1998); Matthew B. Hickey, OKLAHOMA ADVANCEDIRECTIVE ACT: DENYING CHOICE TO THOSE WHOCANNOT CHOOSE: A PROPOSAL FOR LEGISLATIVEAND PRACTICAL ALTERNATIVES 59 Okla. L. Rev.449 (2006).62 See sources supra note 3.63 Kohn, supra note 48, at 991.64 Id. at 991-992.65 Id. at 992.66 Marah Stith, THE SEMBLANCE OF AUTONOMY:TREATMENT OF PERSONS WITH DISABILITIES UNDERTHE UNIFORM HEALTH-CARE DECISIONS ACT, 22Issues Law & Med. 39, 79 (2006) (offering suggestionsto improve the UHDCA and similarstatutes).67 Hamann, supra note 32, at 169.68 Olatawura, M., “Ethics in sub-Saharan Africa,”ETHICS, CULTURE AND SOCIETY 103-108 (J.Arboleda-Florez & N. Sartorius eds., 2000).69 Blackhall, L.J., et. al., ETHNICITY AND ATTI-TUDES TOWARD PATIENT AUTONOMY, 274 JAMA820, 820-826 (1995).70 Bishop, supra note 26, at 179 (discussing thelimitations of some surrogacy statutes and suggestingimprovements).71 Id. at 179-180.72 Id. at 182-183 (noting that the Illinois surrogacystatute requires concurring medical opinionsbefore the withdrawal of life support, 755 ILL.COMP. STAT. 40/1-55).73 Christina Cooley, MAXIMIZING PATIENTAUTONOMY THROUGH EXPANDED MEDICALSURROGACY MEDIATION, 30 Law & Psychol. Rev.229, 238 (2006).74 Thomas L. Hafemeister, END OF LIFE DECISIONMAKING, THERAPUTIC JURISPRUDENCE, ANDPREVENTATIVE LAW: HIERARCHICAL V. CONSENSUS-BASED DECISION MAKING MODEL, 41 Ariz. L. Rev.329 (1999).75 Lorraine M. Bellard, RESTRAINING THEPATERNALISM OF ATTORNEYS AND FAMILIES IN ENDOF LIFE DECISION MAKING WHILE RECOGNIZINGTHAT PATIENTS WANT MORE THAN JUSTAUTONOMY, 14 Geo. J. Legal Ethics 803, 809(2001).76 David I. Shalowitz et. al., THE ACCURACY OFSURROGATE DECISION MAKERS: A SYSTEMATICREVIEW, 166 Archives Internal Med. 493, 494-495(2006) (examination of sixteen separate studiesfound that surrogates are accurate 68% of thetime).77 Smucker, supra note 49, at 276 (finding surrogatesno more likely to make accurate predictionswith an advance directive than without).78 Kohn, supra note 48, at 1008.79 Berg, supra note 33.80 Krupp, supra note 61, at 111-113 (discussingpotential financial motivations for removing aperson from life-sustaining treatment).81 Id. at 117 (discussing potential unethical motivationsa family member might have to disagree109 Larchmont RoadWarwick, Rhode Island 02886Tel: 401-439-9023with others over the proper course of treatmentfor the incapacitated person).82 COLO. REV. STAT. ANN. § 15-18.5-101 to103 (West 2007); HAWAII REV. STAT. §§ 327E-2and E-5 (2007).83 Hamann, supra note 32.84 Krupp, supra note 61, at 118.85 Cooley, supra note 73, at 240.86 Krupp, supra note 61, at 120.87 Id. at 128. ❖The Law Office of Jason KnightProviding legal representation to childrenwith special needs and their families.Every Child Deserves TheOpportunity To SucceedThrough Education.www.jasonknightlaw.comOne Turks Head Place, Suite 1440Providence, RI 02903(401) 865-6075Licensed in RI and MARhode Island Bar Journal March /April 2012 2012 45

Founded in 1958, the Rhode Island Bar Foundation is the non-profitphilanthropic arm of the state’s legal profession. Its mission is to fosterand maintain the honor and integrity of the legal profession and to study,improve and facilitate the administration of justice. The Foundationreceives support from members of the Bar, other foundations, and fromhonorary and memorial contributions.Today, more than ever, the Foundation faces great challenges in funding itsgood works, particularly those that help low-income and disadvantagedpeople achieve justice. Given this, the Foundation needs your support andinvites you to complete and mail this form, with your contribution to theRhode Island Bar Foundation.Book Reviewscontinued from page 29Rhode IslandBar Foundationare all about teachers, not students; 2)like any other interest group which mayserve a useful and, arguably, critical function,the power of the unions must bechecked and balanced against their negativeimpact on the mission of public education;and 3) the great majority of ourthree million public school teachersshould not continue to be advanced intheir careers simply on the basis of theirability to breathe.After reading Warfare and Death, itis hard to see how we could ever makesubstantial progress in our urban publicschools without first reaching agreementon these commonsensical conclusions,whatever approach we may decide totake with respect to the use of testingdata and the opening of new charterschools.PLEASE PRINTHelp Our Bar FoundationHelp OthersRHODE ISLAND BAR FOUNDATION GIFTMy enclosed gift in the amount of $ ____________________________Please accept this gift in my nameorIn Memory of _______________________________________________________________________orIn Honor of _________________________________________________________________________Your Name(s) _______________________________________________________________________Address ______________________________________________________________________________City/State/Zip _______________________________________________________________________Phone (in case of questions) ______________________________________________________Email: ________________________________________________________________________________Please mail this form and your contribution to:Rhode Island Bar Foundation115 Cedar StreetProvidence, RI 02903Questions? Please contact Virginia Caldwell at 421-6541or gcaldwell@ribar.comENDNOTES1* The views expressed herein are solely those ofthe author and do not reflect those of the City, anyCity official, or the Providence School Board.Death at 24. Ravitch is Research Professor ofEducation at New York University and a seniorfellow at the Brookings Institution. From 1991 to1993, she was Assistant Secretary of Educationand Counselor to Secretary of Education LamarAlexander in the administration of PresidentGeorge H.W. Bush. She is the author of over twentybooks on education, including THE GREATSCHOOL WARS: NEW YORK CITY, 1805-1973 (BasicBooks, 1974).2 Brill, the founder of THE AMERICAN LAWYERAND COURT TV, is the CEO of Press+, which,according to Brill’s publisher, has “created a newbusiness model for journalism to flourish online.”He also teaches journalism at Yale University. Brillbecame interested in education after researching anarticle he wrote for THE NEW YORKER magazineinvolving New York City’s inability to dismiss poorteachers. See Warfare at 27-28; Steven Brill, THERUBBER ROOM: THE BATTLE OVER NEW YORKCITY’S WORST TEACHERS, THE NEW YORKER, Aug.3, 2009 (“Rubber Room”).3 National Commission on Excellence inEducation, A NATION AT RISK: THE IMPERATIVEFOR EDUCATIONAL REFORM (Washington, D.C.,U.S.Government Printing Office, 1983) at 5.4 See 20 U.S.C. §§ 6301-7941.5 See Warfare at 85.6 Id. at 27, citing a 2010 study of the InternationalOrganization for Economic Cooperation andDevelopment. Unfortunately, Rhode Island’s statisticsare no exception. In the most recent year ofdata available (2007), over several sub-populations,Rhode Island’s public schools achieved thelowest score of any of the six New England statesin almost every single category.7 See Death at 15. Hence the subtitle of her newbook.8 See http://www.c-spanvideo.org/program/300570-1. (For those of you too young to get thereference, I apologize).46 March /April 2012 Rhode Island Bar Journal

SocialSecurityDisabilitySSI/SSDIGreen &9 Warfare at 52-53.10 Id. at 55-56.11 Id. at 52.12 Death at 190.13 Warfare at 8.14 Id. at 82-83.15 Id. at 90.16 See id. at 121-22, 125-27.17 Id. at 39.18 See id. at 177.19 Id. at 2. The picture in Rhode Island is similar.According to the National Institute on Money inState Politics, in 2010 alone, public sector laborunions in Rhode Island contributed $402,123 tocandidates for state office, with roughly a thirdcoming from the teachers’ unions. For the actualrecords, see the Institute’s website at http://www.followthemoney.org/database/state_overview.phtml?s=RI&y=2010.20 Id. at 40.21 See e.g., Rubber Room, note 3, supra.22 Death at 174.23 Id.24 See, e.g., Title VII of the Civil Rights Act of1964, 42 U.S.C. § 2000e-2(a)(1) (prohibiting discriminationon the basis of race, color, religion,sex, or national origin); Age Discrimination inEmployment Act, 29 U.S.C. §§ 621-634, as amendedby the Older Workers Benefit Protection Act of1990, 29 U.S.C. § 626(f) (prohibiting age discrimination);Americans with Disabilities Act, 29 U.S.C.§§ 12101 et seq. (discrimination on the basis of adisability); R.I. Gen. Laws §§ 28-9.1-4, 28-7-13(5)and (8) (protecting labor organizing). In addition,many home rule charters prohibit politically motivatedemployment discrimination. See, e.g.,Providence Home Rule Charter at § 1206 (proscribingdiscrimination against employees “on anypolitical basis”).25 See Warfare at 15.26 Id. at 199.27 Death at 200; see generally id. at 195 – 222.28 See id. at 8.29 See, e.g., Death at 81.30 See Death at 219-20.31 Id.32 Thus, for example, she claims erroneously that“NCLB assumes accountability based solely ontest scores will reform American education,” id.at 163, and that reformers advocate that “tests”should be the “decisive tool” used to evaluateteachers. Id. at 177. In reality, as Brill noted inhis C-Span interview, see note 13, supra, nobodyadvocates such heavy reliance on test scores alone.33 Death at 222.34 Id. at 101. Brill quotes longtime NEA generalcounsel Robert Chanin who, in a valedictory speechon the eve of his retirement opined that his unionwas effective:‘not because we care about children, and it isnot because we have a vision of a great publicschool for every child. NEA and its affiliates areeffective advocates because we have power. Andwe have power because there are more than 3.2million people who are willing to pay us hundredsof millions of dollars in dues each yearbecause they believe that we are the unions thatcan most effectively represent them … protecttheir rights and advance their interests… Whenall is said and done, NEA and its affiliates mustnever lose sight of the fact that they are unionsand what unions do first and foremost is representtheir members.’Id. at 250. ❖GreenbergCounselors at LawOffices located in Providence,Pascoag, Central Falls, Woonsocket, Taunton,New Bedford, Fall River, Brockton and MiddletownReferrals Accepted.New client appointments at your office or ours.116 Orange St., Providence, RItelephone 401.331.8989fax 401.331.6644www.ggsslaw.comAdvertiser IndexABA Retirement 7Ajootian, Charles – 1031 Exchange Services 26Aon Liability Insurance 18Balsofiore & Company, Ltd. – ForensicAccounting, Litigation Support 41Boezi, Henry – Trademark/Copyright 33Briden, James – Immigration Law 38CATICback coverCoia & Lepore, Ltd. – Workers’ Comp. 42DataNet LLC 28Delisi & Ghee, Inc. – Business Appraisal 33Dennis, Stephen – Workers’ Compensation 6Dumas, David – Heirs/Genealogy 32Engustian, Christine – Green Building Lawyer 39Goodman Shapiro & Lombardi LLC –Legal Services 8Green & Greenberg Law Firm 47Gregory, Richard –Attorney & Counselor at Law 22Hart – Bankruptcy 27Kirshenbaum & Kirshenbaum 14Knight Law Offices – Special Education Law 45Lahti, Lahti & O’Neill, LLC 9Marasco & Nesselbush – Social SecurityDisability/Medical Malpractice 44Mathieu, Joan – Immigration Lawyer 27Mediation – Howe & Garside 41Mediation & Arbitration – Joseph Keough 32Mignanelli & Associates, LTD. –Estate Litigation 30Morowitz, David – Law Firm 24Ocean State Weather – Consulting & Witness 45Office Space – North Providence 4Office Space – Smithfield 42Office Space – Warwick 12PellCorp Investigative Group, LLC 40Pfieffer, Mark – Alternate Dispute Resolution 39Piccerelli, Gilstein & Co. – Business Valuation 28Revens, Revens & St. Pierre – Bankruptcy 32Revens, Revens & St. Pierre –Workers’ Compensation 38Rhode Island Private Detectives LLC 26R. J. Gallagher – Disability Insurance 13Ross, Roger – Title Clearing 40Sciarretta, Edmund –Florida Legal Assistance 12Seeking Successor Attorney 6Seifer Handwriting 7Select Suites – Calart Tower – Cranston 44Soss, Marc – Florida Estates/Probate/Documents 40Souza, Maureen – Drafting/Research 43StrategicPoint – Investment Advisory Services 15Zoning Handbook – Roland F. Chase 13Rhode Island Bar Journal March /April 2012 2012 47

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