Category Archives: Justice System

In case you missed it, and so you don’t

In case you missed it, we had a quick response to the recent ProJo article on the Jack McConnell nomination to the U.S. District Court. These all follow our PR on the subject issued the day before.

The Journal reported that Senator Whitehouse defended answers to the Judiciary Committee by U.S. District Court nominee Jack McConnell as “accurate in every respect.” We beg to differ, as did Senator Grassley, the ranking Republican (“Senate panel endorses McConnell for R.I. judgeship, ”April, 1).

McConnell said, “My law firm entered into an agreement with the State of Rhode Island that set forth the attorney fees as 16 2/3% of any recovery obtained as a result of the litigation.” In fact, the contract says: “In the event the litigation is resolved, by settlement or judgment, … the parties hereto agree to seek . . . compensation.”

The fee agreement is triggered not by “any recovery” but by “settlement or judgment,” neither of which occurred in the DuPont Deal by the testimony of both Dupont and then Rhode Island Atty. Gen. Patrick Lynch. In the event of “in-kind” payments we would not be obligated to pay a fee.

Continue reading HERE.

And so you don’t miss it, I’ll be on Channel 10 news this evening (6:00) interviewed by Bill Rappleye on the recently reported raises given out at the State House.

It is difficult to say exactly which 10 second quote will be taken from the 10 minute interview, but here’s the point I made, I don’t begrudge anyone making money from hard work, but it is understandable why people are outraged by these raises as we suffer in an economy where benefits are being cut and people are leaving our state because of the onerous taxes (see our Leaving RI study for documentation of this fact).  Handing out raises to anyone in government in this environment is offensive. But I think the ire is misguided when you consider the fact that teachers in Rhode Island who happen to be in the first 10 years of employment get close to a 9% raise NOT because of their job performance, but simply because they were employed another year.  Those and other exorbitant contractual raises based solely on seniority that apply to everyone are the real budget deficit driver.

Of course, if more government services were provided by private entities, who have “competition” to ensure compensation is judiciously allocated, then all these problems would go away, now, wouldn’t they…


McConnell nomination leaves Dupont settlement unsettled

OSPRI Press Release

McConnell Nomination Leaves DuPont Settlement Unsettled

The Ocean State Policy Research Institute (OSPRI) continues to pursue the truth in regards to the behind-closed-doors negotiations between then Attorney General Patrick Lynch, DuPont and Obama nominee for the U.S. District Court, John J. McConnell whose controversial nomination cleared the Senate Judiciary Committee today in a pitched 11-7 vote.


In an environment of mass torts where billions of dollars are at stake and the office of Attorney General can essentially be auctioned to trial lawyers, why has OSPRI’s Founders Project doggedly pursued the allocation of a paltry couple of million dollars? Because the lack of candor surrounding this affair hints at the deeper problem of conflicts arising when an entire state citizenry can be scooped up as clients without their approval.

In a recent answer to questions from the U.S. Senate Judiciary Committee, Attorney McConnell emphasizes his own confusion on this topic by calling Attorney General Lynch “his client”. This epitomizes the inappropriate perspectives attending contingency fee arrangements where lawyers see their responsibility as to the decision makers awarding the contracts rather than the citizens they represent.

This reference is only the first questionable answer that McConnell recently delivered to the Senate Judiciary Committee. In defending the gerrymandering of funds from the DuPont Deal to cover a pledge of his law firm to the Brigham and Women’s hospital, McConnell has suggested that the moneys were tantamount to a fee.  They weren’t a fee he says, but a fee would have been due if his firm did not waive it.

“We disagree that a fee was due” said Brian Bishop for the Founders Project. Attorney McConnell misstates his contract with the state in his recent responses to the Senate. He says: “My law firm entered into an agreement with the State of Rhode Island that set forth the attorney fees as 16 2/3% of any recovery obtained as a result of the litigation.” In fact, the contract says: “In the event the litigation is resolved, by settlement or judgment, under terms involving the provision of goods or services, equitable relief, or any other in-kind payment, the parties hereto agree to seek . . . compensation for [Contingent Fee Counsel]”

“The fee agreement is triggered by “Settlement or Judgment”, neither of which occurred in the DuPont Deal by the testimony of both Dupont and Attorney General Lynch and, in any event it is an agreement to seek fees, not to obtain them”, said Bishop.

Senator Grassley also asked:  “Was DuPont aware of your firm’s pledge to Brigham & Women’s Hospital? If not, was it ethical to withhold this knowledge from DuPont and/or its counsel?”

Attorney McConnell responded: “Yes”.

“Yes what? Were they aware; or is he saying it was ethical if they were not?” Bishop continued, “The public record is replete with statements from DuPont indicating they were not aware of this relationship and objected to their donation being credited to McConnell’s firm. We think it an ethical blind spot if this answer should instead be taken to suggest it was ethical to dupe opposing counsel rather than openly insist on a fee.”

Finally, when asked if it was made public that the DuPont monies were used to fulfill the firm’s pledge, McConnell says it was and points to information revealed in an investigative report over a year after the DuPont Deal was announced.

“If this were so above board and already known to other counsel why wasn’t it made public when the deal was done?  We think that says all that needs to be said about the inappropriate lack of transparency here. It is not for us to say whether this is disqualifying for a seat on the federal court, but it certainly doesn’t reflect qualities we would wish to see displayed there,” said Bill Felkner, Founder and Director of Policy for the Institute.



JUST IN – McConnell responds to U.S. Senate Judiciary

Hard work pays off. Thanks to the tireless efforts of Brian Bishop, the Director of OSPRI’s Founders Project, the U.S. Senate Judiciary Minority has issued questions to federal district court nominee John McConnell – and we have the answers. 

Click on the following links:
Response to Senator Coburn (questions 4 & 5)
Response to Senator Cornyn (questions 9, 10 & 11)
Response to Senator Grassley
Response to Senator Kyl (questions 1 to 6)
Response to Senator Sessions (questions 1 to 6)

OSPRI files Public Records Request on AG and lead paint co-counsels

In October of 1999, Rhode Island filed a controversial lawsuit against paint manufacturers with the novel theory that they were presently creating a “public nuisance” by selling lead-based paint in 1978. The RI Supreme Court eventually found that the allegations against the manufacturers were insufficient to establish liability for “abatement” of a “public nuisance”.

The participation of co-council John McConnell and his firm Motley Rice in earlier tobacco and asbestos public interest cases certainly made some wonder if pushing the boundaries of the law was more about lead poisoning or lawyers fees. 

But some 6 years into this litigation and before that ruling by the RI Supreme Court, one of the defendants, Dupont, struck a deal with Attorney General Patrick Lynch and contingent counsel to be removed from the list of defendants. The ‘Dupont Deal’ was announced simultaneously by Patrick Lynch and John McConnell. 

Attorney General Lynch announced, and McConnell confirmed, that legal fees for the ‘Dupont Deal’ had been waived. However, McConnell’s co-counsel, Leonard Decof challenged this assertion saying, “there are two questions . . . Is it a settlement, and was a fee paid.” His son Mark crowed that their claim that the Dupont funds paid to Brigham and Women’s in satisfaction of a pledge by Motley Rice were de facto legal fees was “shining the light” on the ‘Dupont Deal’ 

Contrary to its auspicious beginnings, and a week before the deadline set by Senator Reed for expressions of interest in federal judgeships, Decof quietly settled his claim without revealing any details. 

“This might all be water over the public’s dam,” said Brian Bishop, Director of the Founders Project at the Ocean State Policy Research Institute (OSPRI), “but McConnell was recommended for a federal judgeship by Rhode Island’s Senate delegation that includes Sheldon Whitehouse who first signed the unique and unconstitutional contingent fee agreement with McConnell’s firm that was later amended so the litigation could continue.”

“Now that McConnell’s nominations is under review in the Senate, we think it important they try to find out what happened in the ‘Dupont Deal’, a task that has frustrated or co-opted everyone else who has tried.” 

To further this effort, the Founders Project is today filing Access to Public Records requests for a record of fees paid to attorneys, directly, indirectly or ‘in-kind’, from the ‘Dupont Deal’ and other documentation. 


New Hate Crimes Law Would Extend to Homeless

Just when we thought hate crimes laws couldn’t get more stupid, they did. A new law proposed by the Rhode Island Coalition for the Homeless would treat assaults on homeless persons as hate crimes. This was inspired by a series of YouTube videos in which someone named the ‘bum hunter’ roams the streets looking for homeless people, whom he beats and brands. What those videos depict is obviously repulsive, but, as with all alleged hate crimes, we must point out that these activities are already covered under things under assault laws. Why not just get some extra police details in the problem areas? Or use the videos to find the assailants? Why do the homeless advocates have to drag political ideology into this? Well, one advocate of the bill told NBC 10 that these are hate crimes because they are targeting a specific group of people. But if we’re lowering the bar that far, that certainly dilutes the whole idea of hate crimes—not that we liked the idea of hate crimes in the first place, but at least there was some rationale behind it. For example, older people and those who are unemployed tend to get robbed more often than other groups. Are we now going to treat those as hate crimes as well? The other point is more fundamental: the violence being done against the homeless in that video does not reflect hate, it reflects indifference. The delinquent who goes around hunting bums clearly does not care enough about them to hate them.

The Sotomayor nomination

My earliest memories of the Supreme Court nomination process are when Senator Kennedy all but called Robert Bork a racist and when Anita Hill accused Clarence Thomas of placing a pubic hair on her can of cola. There are different people asking the probing questions now.

Anchorrising has some good questionsfor Senator Whitehouse to pose to Judge Sotomayor.

Given that Judge Sotomayor is being considered for a position on the Court which she has cited as the proper authority for modifying precedent on this issue, the public has a compelling interest in knowing…

1.  If Judge Sotomayor believes that the Second Amendment is incorporated by the Fourteenth Amendment and therefore cannot be infringed upon by the states, or if she believes that the Second Amendment is fundamentally different from most other Constitutional protections afforded to individual Americans in the Bill of Rights and is not incorporated…

2.  And, given her particular usage of the term “settled law”, if there are other areas where Judge Sotomayor believes that the Supreme Court might readily change what “settled law” currently says.

And our friends at the Judicial Confirmation Network shed light on what to expect with a Sotomayor appointment:

Judge Sotomayor’s two decades of speeches, law review articles, legal advocacy, and judicial decisions lead us to conclude that, if she is confirmed, Justice Sotomayor would be a supreme liberal judicial activist, outdoing the Justice she is replacing, David Souter, in this regard.  Her view that judges should rely on their own views, instead of the law as written, in deciding cases would take our nation a critical step further away from the Rule of Law and toward the Rule of Nine Lawyers.

Particularly disturbing was this nugget of information (empasis added):

We have reviewed the parts of her record that have been made available to the Senate and the public.  (Important parts of that record still have not been disclosed, such as what input she had into the legal strategies advancing racial quotas and abortion-on-demand that the Puerto Rican Legal Defense and Education Fund advanced during her years of leadership, for example.)

And ADF reports on the Federalist Society’s online debate :

In this installment of Originally Speaking, Thomas C. Goldstein, Wendy Long, Louis Michael Seidman, David Stras, and M. Edward Whelan III discuss how to approach Sotomayor’s nomination: what standard Senators should use to support or oppose the nomination, what deference should be given to the President, what weight should be given to the nominee’s views on issues, what questions the Committee should ask and which ones the nominee should answer.

And Curt Levey at the Committee for Justice is live blogging the nomination.