Dear Neighbors:
In this week’s letter, I describe the conclusion of my efforts to encourage the Attorney General to support accountability and transparency through the publication of pretrial discovery.
1. Presenting A Suggestion To The Attorney General
Over the past month, I sought to increase transparency and accountability for the Washington Bridge closure through the publication of documents generated in the cost recovery lawsuit. My efforts began with an August 19 letter to the Attorney General which went unanswered, as described in letters I sent to you on September 2 and September 15.
2. The Attorney General’s (Final) Response
On September 12, the Attorney General took a promising first step in agreeing to publish the court docket on a web page. This meant little by itself, as any attorney could do the same thing. Following a Boston Globe article pointing out this concern, the Attorney General generated a blizzard of Tweets emphatically stating his refusal both to publish discovery and/or to engage in any dialogue concerning his decision.
3. My Disagreement With The Attorney General’s Stated Reasons
When I began this project, I understood that there were legitimate objections to the full disclosure of discovery, but I thought they could be addressed by placing reasonable limitations on what the State published. The Attorney General’s tweets stated different objections to publishing any discovery at all. I discussed these objections with attorneys I know, and I disagree completely with one of his objections and at least partially with the other one.
We elected Attorney General Neronha to make these decisions, and I respect his responsibility to do so. I would, however, like to share two experiences from my own career that shape my view of the role of the Attorney General, and what I believe to be the proper framework for addressing this type of question.
4. The Attorney General’s Mission
After I completed my judicial clerkships, I served as an Assistant Attorney General in the Massachusetts Attorney General’s office. I handled civil environmental enforcement cases, which included exchanges of discovery. At times, the defendants’ discovery requests were poorly worded, providing the opportunity to read the requests narrowly as a basis to state objections and/or to avoid producing documents that were within the proper scope of discovery.
I valued our office’s public sense of mission. In contrast to private attorneys, who are expected to do everything the rules allow to win the case for their client, our office worked within a broader ethic of doing justice. I was taught to produce relevant documents (including those that, out of context, did not help our case) even if the defendant’s request lacked complete precision. Because we made sure we had a good case before bringing it, our disclosure policy did not prevent successful results; instead, it advanced our office’s mission to achieve justice as well as court victories.
5. The People’s Lawyer
Later in my career, I practiced law with Julius Michaelson, who served as Rhode Island’s well-respected Attorney General in the mid-1970’s. He kept in his office one of his campaign posters, that included the caption “The People’s Lawyer.” I view this as the perfect job description for the Office of Attorney General, which I would apply to the Washington Bridge litigation this way:
The People of Rhode Island:
- Paid for the Washington Bridge that was abruptly closed last December;
- Are suffering the inconvenience, closed businesses, and other hardships that have resulted from the bridge closure;
- Will pay the cost of the new Washington Bridge that has to be built because of the failures of the old one; and
- Are paying the private attorneys and the Office of Attorney General to bring the current lawsuit.
If we view the Attorney General as The People’s Lawyer, it follows that the People of Rhode Island are the Attorney General’s client. While acknowledging that we are speaking metaphorically, any private attorney who fails to allow their client access to the attorney’s file would be subject to discipline.
6. Conclusion
It is unfortunate that this Attorney General dismissed my attempt to engage him in a substantive discussion about lawsuit transparency, disparaging it as one Senator’s political posturing. I wish instead he had viewed my suggestions as an opportunity to consider your serious and legitimate concerns.
I am grateful to the reporting of Ed Fitzpatrick at the Boston Globe, whose articles on September 5 and September 16 likely provided the Attorney General with the impetus to publish the court docket on his web page, and at least begin to articulate the reasons for his opposition to greater public disclosure.
I will continue to look for ways to provide you with the transparency and accountability that you, and all Rhode Islanders, rightfully deserve.