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In re Gelfuso

Supreme Court of Rhode Island

February 24, 2015

In the Matter of Nicholas Gelfuso

For Petitioner: David D. Curtin, Esq., Disciplinary Counsel.

For Respondent: Keven A. McKenna, Esq.

Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

Page 209

ORDER

This attorney disciplinary matter came before the Court at its conference on December 17, 2014. On November 14, 2014, this Court's Disciplinary Board (board), forwarded to the Court a decision and recommendation tat the respondent, Nicholas Gelfuso (respondent) be suspended from the practice of law for a period of one month. Article III, Rule 6(d) of the Supreme Court Rules of Disciplinary Procedure provides, in pertinent part:

" If the [Disciplinary] Board determines that a proceeding should be * * * concluded by public censure, suspension or disbarment, it shall submit its findings and recommendations, together with the entire record, to this Court. This Court shall review the record and enter an appropriate order."

We directed the respondent to show cause, if any, why we should not impose the discipline recommended by the board. Having heard the representations of the respondent, his attorney, and this Court's Disciplinary Counsel, and having reviewed the record, we deem that cause has not been shown.

The following are the relevant facts as found by the board after a hearing held on May 7, 2014. Attorney Dawn Huntley had been employed as a Special Assistant Attorney General until she was terminated from that position in July of 2008. Ms. Huntley believed that she had been discriminated against while employed by the Office of Attorney General, and that her termination was also motivated by discriminatory reasons.

Acting pro se, Huntley filed administrative grievances with the Providence Human Relations Commission, the Rhode Island Commission for Human Rights, and the Federal Equal Employment Opportunity Commission. On January 29, 2010, the Equal Opportunity Commission issued a right to sue letter, a prerequisite to the filing of a civil action. On April 30, 2010, still acting pro se, Huntley filed a civil complaint in the United States District Court for the District of Rhode Island, naming sixteen defendants, including Attorney General Patrick Lynch (Lynch), Deputy Attorney General Gerald Coyne (Coyne), and Assistant Attorney General Alan Goulart (Goulart), individually and in their professional capacities.[1] That complaint set forth various causes of action and sought both compensatory and punitive damages, but was not served by Huntley on any of the defendants.

On August 26, 2010, still acting pro se, Huntley filed an amended complaint naming only Lynch and the Department of the Attorney General in the caption, but also including Coyne and Goulart in the body of the complaint as defendants in both their individual and professional capacities. The amended complaint was served upon the defendants. On behalf of all of the defendants, the complaint was answered by an attorney employed by the Office of the Attorney General, and on behalf of all of the defendants, a motion to dismiss was filed. Huntley did not file an objection to the motion to dismiss. On October 4, 2010, the United States District Court issued an order and final judgment in favor of the defendants. Huntley did not appeal that judgment.

On November 3, 2010, the Rhode Island Commission for Human Rights also issued a right to sue letter, authorizing Huntley to file her discrimination claims in state court. Huntley obtained the services of

Page 210

the respondent to represent her in this proceeding. On January 31, 2011, the respondent filed a civil action on Huntley's behalf in the Superior Court naming the Department of the Attorney General as the sole party defendant. However, this complaint was not served. On March 24, 2011, on behalf of Huntley, the respondent filed an amended complaint, naming seven defendants, including Lynch, Coyne and Goulart in their individual capacities, and the amended complaint was served on the defendants. The amended complaint was answered on behalf of all of the defendants by an attorney employed by the Attorney General's Office. As occurred in the federal court litigation, a motion to dismiss was filed on behalf of all of the defendants. However, the respondent filed an objection to the motion to dismiss on behalf of Huntley, and on November 9, 2011, a justice of the Superior Court denied the motion to dismiss.

The defendants filed a petition for a writ of certiorari requesting that this Court review the decision of the Superior Court denying the motion to dismiss. We granted the petition, and the matter was assigned to briefing and argument. On December 28, 2012, a member of the Attorney General's Office filed a " Designation of Attorney Presenting Oral Argument" form with this Court clearly indicating that the Attorney General was representing all of the petitioners, including Lynch, Coyne, and Goulart. On April 12, 2013, after reviewing the briefs and hearing oral argument, we issued our opinion quashing the judgment ...


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