Charlestown’s $50,000 Whalerock Special Counsel could be violating conflict of interest rules

By representing two different client groups in the same case, Mancini could be failing them both

By Will Collette

NOTE: the second in Charlestown's new dramatic summer drama, the hearings of Whalerock before the Zoning Board, takes place tonight at 7 PM at Charlestown Elementary.

The CCA Party majority Town Council emerged from its May 13 executive session and announced they had decided to spend $50,000 to hire a Special Counsel to represent the town. This Counsel would represent the town before the Zoning Board’s hearings on developer Larry LeBlanc’s application for a Special Use Permit for the Whalerock industrial wind project. By May 17, the town had hired John O. Mancini, who normally represents developers, as Charlestown’s new Special Counsel.

When Mancini introduced himself at the Zoning Board’s first Whalerock hearing on May 21, he said he was representing Charlestown and some unidentified abutters.

I was surprised to hear him say that and it stuck in my mind that there are generally problems when an attorney represents two different groups of clients on the same case. As I dug deeper, my concerns intensified.

I filed a state open records act request for a copy of Mancini’s contract with the town and for “any side letters, agreements, or memos related to any added clients who will be represented by Mancini in addition to the Town….”

The town provided me with the contract (click here to read) and his bill for his retainer ($17,500, click here to read) but claimed there are no other records.

Under the American Bar Association’s and RI Bar’s code of professional responsibility, lawyers may represent different clients on the same case only under very strict conditions. 

Here's the general rule: “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: … (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

A simple example of how the town’s interests and those of the abutters could conflict is when it comes time for a settlement. As I think everyone understands by now, Whalerock will be a never-ending torment for Charlestown until there is a settlement. Until LeBlanc gets something he wants, he will either continue to drag this through the courts or he will come up with another use for the land that could be even worse than industrial-sized wind turbines.

In the past, town leaders like Town Council boss Tom Gentz and Planning Commissar Ruth Platner, both top leaders of the CCA Party, advocated a deal with LeBlanc to buy the land to be set aside as open space. I happen to agree with them. But many of the abutters oppose a settlement with LeBlanc under any conditions. There’s the easily foreseeable “significant risk” of conflict of interest for Mancini.

He can work around this conflict if he meets several conditions spelled out in the rule, but most importantly, that he fully informs both clients of the potential of conflict and “(4) each affected client gives informed consent, confirmed in writing.”

Such a written, informed consent by the town does not exist, or at least that’s what Town Clerk Amy Weinreich claims in her response to my open records request. Either Charlestown violated the open records act or Mancini didn't follow the requirements of Rule 1.7. I can't think of a third option.

Click here to read the entire ABA rule 1.7. Click here to read Rhode Island’s equivalent of the ABA rule.

ABA Rule 1.8 (click here) is even more specific about settlements when a lawyer represents different clients in the same matter: “(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.”

Remember, our Town Clerk says there is no informed consent statement from the town. The open records law doesn’t apply to Mancini’s unidentified abutter clients but I think it’s a fair guess that if the town hasn't signed an informed consent statement, they haven’t either. Especially, when you read on, and see that perhaps this isn't the only time this has happened in the on-going Whalerock drama.

The Bar Association and the Courts take this stuff very seriously. If Mancini is held in violation of the Rules, he could be kicked off the case. He could also be sanctioned.

Maybe Gorham has issues, too

Ron Areglado plays a central role in this whole fiasco

Mancini isn’t the only lawyer on the Whalerock case with issues. Though a little less blatant than Mancini’s issues, Whalerock’s own lawyer, Nick Gorham, not only represents Whalerock, but has long represented the Sachem Passage Association.

The Whalerock abutter-litigants are pretty much a sub-set of the Sachem Passage Association even though SPA itself is not a party to the lawsuits, though most of their officers have signed on as plaintiffs in the lawsuits against Whalerock. 

Long-time Sachem Passage officers Ron Areglado (CCA Party appointee to the Chariho School Committee) and Peter Herstein (CCA Party appointee to the Charlestown Planning Commission) are also Whalerock litigants. Click here to see the complete list of abutter plaintiffs. Areglado is the de facto leader of the anti-Whalerock NIMBY group.

Click here to see SPA’s annual report to the Secretary of State listing five Whalerock litigants as SPA officers (in addition to Areglado and Herstein, Daniel MacLeod, Paul Raiche and David Heilemann).

The anti-conflict of interest rules are supposed to prevent awkward moments like this where Areglado and Herstein et al. use Nick Gorham as their lawyer on SPA matters while Gorham is representing Whalerock against them. I hope they all read and followed Rule 1.7.

On Sunday, I e-mailed all five SPA officers to ask them if they were aware that Gorham represented both the SPA and Whalerock, if they give their informed consent, if they disputed any of the facts or had any other comment. None of the five responded.

Then there's the Open Meetings Act

There are more problems surrounding the town’s choice of John Mancini as Special Council that predate his potential conflict of interest.

The Town Council never gave any notice of its intention to spend $50,000 to hire him. There is no mention of it in the notice for their May 13 executive session or their May 13 meeting. This raises concerns about whether the Council decision complies with the state Open Meetings Act and a very recent precedent decision where the Council was nailed for pretty much the same thing.

In Donoghue v. Charlestown just one year ago, the judge ruled the Council violated the Open Meetings Act by failing to properly give notice of its plan to vote on spending $475,000 to help the Charlestown Land Trust buy the derelict YMCA camp on Watchaug Pond, a key episode in the Y-Gate scandal. In that case, the Judge called the Council’s notice “misleading.” Click here to read the decision. In this instance of the $50,000 to hire a Special Counsel, the notice was non-existent.

Do the Mystery Clients have standing?

Then there’s the question of Mancini abutter clients. There is no mention of them in his contract with the town, leading me to wonder who is paying for them. My sources tell me the abutters group led by Ron Areglado still owes their lawyer James Donnelly for his representation of them in the Whalerock lawsuits. Did they make the switch to Mancini? If so, why the mystery? And is Charlestown paying?

If the town is paying, that stirs up another whole kettle of eels. Does the Town Charter permit Charlestown to pay for the legal representation of private citizens? And where do other citizens with legal bills, such as the folks fighting the Copar quarry, get in line to get their town money?

Then there’s the problem that Whalerock’s lawyer Nick Gorham raised several times during the ZBR’s May 21 hearing. Charlestown has been thrown out of court twice for failing to show it has standing in the Whalerock case. Gorham objected to Charlestown being present – represented not only by new Special Counsel John Mancini, but also by Town Solicitor Peter Ruggiero – when Judge Kristin Rodgers very decisively ruled that Charlestown does not have standing in the Whalerock case. 

Read my analysis here and her full decision here.

ZBR Chair Mike Rzewuski did not rule on Gorham’s objections, but at some point, either during the ZBR hearings or perhaps when this case goes back to court, it will get settled.

Rzewuski also did not rule on Gorham’s demand that Mancini needed to disclose who he’s actually representing. The ZBR actually needs to know who they are to make sure that the abutters Mancini claims to represent actually have standing and actually are directly affected.

Let's buy LarryLand and be done with it

Enough with the clown act

As I’ve written many times before, I do not want to see Whalerock get built. I have advocated for the town to purchase the land to preserve 81 unspoiled,strategically located acres that would make a wonderful addition to the town’s open space inventory.

I hate to see the town make avoidable mistakes that could screw up this case. I understand how excitable Town Council boss Tom Gentz can be on occasions like this. I also understand the disdain he and his CCA Party colleagues have for the rules when it comes to them.

But if another Town Council, let’s say one led by Marge Frank or Jim Mageau or Deb Carney, made an out-of-the-blue decision to spend $50,000 of taxpayer funds on a lawyer, and then saw that lawyer make a series of what could turn out to be fatal errors, the CCA Party would be screaming.

The Areglados and the Chambers and all the rest of them would be throwing up ramparts across South County Trail, preparing to launch an attack on Town Hall to oust those who would violate Charlestown’s sacred principles of open, transparent and competent government. But since it's the CCA guys who throw the rules out the window, I guess the CCA Party is fine with that.

First, Charlestown needs to figure out how to get itself out of the Whalerock mess and part of that is cleaning up the Mancini mess. Then we need to figure out how to end these gross violations by the Council. Whether they are clownish screw-ups or flagrant abuses of power, they must stop.