Preview:

Supreme Court
No. 2011-101-M.P.
In re Town of Little Compton                                                                           :
Present:  Goldberg, Flaherty, and Indeglia, JJ.
O P I N I O N
Justice Indeglia, for the Court.   Nearly eighty years ago, this Court stated that “the
practice of the law is a special field reserved to lawyers duly licensed by the court * * *.”  Rhode
Island Bar Association v. Automobile Service Association, 55 R.I. 122, 126, 179 A. 139, 140
(1935).   The thrust of this ruling was to ensure “that the public welfare will be served and
promoted.”   Id. at 131, 179 A. at 143.   Indeed, “[g]reat and irreparable injury can come to the
people, and the proper administration of justice can be prevented, by the unwarranted intrusion
of unauthorized and unskilled persons into the practice of law.”   Id.   At the same time, however,
this Court also acknowledged that the practice of law can be “difficult to define.”  Id. at 126, 179
A. at 140.   This difficulty “especially is true today, based on the changing nature of the legal
profession and the lightning speed with which these changes have occurred.”   In re Law Offices
of James Sokolove, LLC, 986 A.2d 997, 1005 (R.I. 2010).   The matter now before the Court
requires us to once again feel for the contours of this elusive definition.
On July 8, 2010, the Unauthorized Practice of Law Committee (committee) conducted an
investigational hearing in connection with a complaint filed with it by the Town of Little
Compton (the town) against the Little Compton Firefighters Local 3957 (the union).1   In its
1 General Laws 1956 § 11-27-19(d) endows the committee with the following duties and powers:
“(2)  To  investigate  all  reports  of  activities  which  may
constitute unauthorized practice of law and to hold hearings to
determine    whether    the    charges    are    substantiated    or
unsubstantiated;
“* * *
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complaint,  the  town  contended  that  the  union,  or  its  representative,  had  engaged  in  the
unauthorized practice of law, in violation of G.L. 1956 § 11-27-2,2 when the union allowed its
nonlawyer business agent to represent it at a labor arbitration hearing.  The committee’s report to
this Court3 ultimately concluded that the union representative’s actions on behalf of the union
constituted a “technical violation” of the statute governing the unauthorized practice of law.
Mindful that this type of lay representation of unions in labor arbitrations is a common practice
in Rhode Island, the committee petitioned this Court for guidance on how to proceed.   After
reviewing the committee record,4 the parties’ written submissions and oral arguments, and the
many amicus briefs filed with the Court, we decline to limit this particular practice at this point
in time for the reasons that follow.
I
Facts and Travel
On June 19, 2008, the union and the town entered into a collective-bargaining agreement
(CBA) that governed the terms and conditions of firefighter employment in Little Compton.   In
the CBA, the parties agreed to submit all grievances to arbitration rather than resort to the courts.
“(5) To issue subpoenas and administer oaths in connection
with any investigations, hearings, or other proceedings held under
the authority of this chapter;
“(6) To take or cause depositions to be taken as needed in
any investigation, hearing, or proceeding;
“(7)  To  summon  and  examine  witnesses  during  any
investigation,   hearing,   or   proceeding   conducted   by   the
committee[.]”
2 See § 11-27-2 in note 15, infra.
3 After holding an investigatory hearing, § 11-27-19(g) requires the committee to then “make a
written report of its findings of fact and its recommendation, and the report shall be immediately
transmitted to the [C]hief [J]ustice of the [S]upreme [C]ourt with a transcript of the evidence.”
4 We acknowledge and thank the members of the committee for the diligent and conscientious
manner in which they approached this matter.
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On February 11, 2009, the union filed two grievances against the town, alleging that the
town had violated the CBA by failing to maintain certain minimum staffing levels and by not
filling a vacant position.   After the town denied both grievances, the union elected to proceed to
arbitration pursuant to the terms of the CBA.   In preparation for arbitration, the union appointed
Joseph Andriole (Mr. Andriole), a staff representative from the Rhode Island State Association
of Firefighters, to represent the union in the arbitration.   As a nonlawyer, Mr. Andriole is not
licensed to practice law in Rhode Island.
On August  26,  2009, the town filed a complaint in the Superior Court for Newport
County, seeking declaratory relief concerning the rights of the parties.   The town also moved to
enjoin the union from using a nonlawyer in the arbitration proceeding, alleging that such action
would constitute the unlawful practice of law in violation of chapter 27 of title 11.   The union
filed an answer and objected to the motion.   A Superior Court justice denied the motion on
November 2, 2009.5,6
The arbitration hearing took place on November 4, 2009, and November 23, 2009, with
Mr. Andriole representing the union.    The arbitration panel eventually denied the union’s
grievances.
After the arbitration panel decided in the town’s favor, the town filed a petition to
confirm the arbitration award and requested the entry of final judgment in Superior Court.   The
union sought and  received permission to consolidate the town’s original action requesting
injunctive and declaratory relief with the petition to confirm the arbitration award.   On July 14,
5 In his denial, the trial justice considered the motion as “akin to a request for a preliminary
injunction” and decided the motion “through that lens.”
6 The town petitioned this Court for a writ of certiorari and moved for a stay of the arbitration
proceeding; both the petition and the motion were denied by this Court on November 3, 2009.
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2010,  a Superior Court justice considered both matters, ultimately granting the petition to
confirm the arbitration award and dismissing the declaratory judgment action as moot.7
On December 18, 2009, prior to the arbitration panel’s issuance of its decision, the town
filed a formal complaint8 with the committee, asserting  “that  [the union], specifically [Mr.]
Andriole,  was  engaging  in  the  unauthorized  practice  of  law”  during  the  November            2009
arbitration hearing, and requesting that the committee investigate its claim.  The committee, after
finding probable cause to believe that the union had “engaged in the unauthorized practice of law
by having a non[]lawyer represent it in an arbitration proceeding[,]” notified the union of the
complaint and scheduled an investigational hearing for July 8, 2010.   The union was represented
by an attorney authorized to practice law in Rhode Island at the hearing, during which testimony
was taken and exhibits were introduced.
At the conclusion of the committee’s investigational hearing, a majority of the committee
voted in favor of finding that “Mr. Andriole’s actions on behalf of the [u]nion constituted a
technical violation of * * * § 11-27-2.”   Mindful of the fact that nonlawyer representation of
unions at labor arbitrations is a common practice in Rhode Island, the committee deferred to this
Court as to how to proceed.9   After due consideration, this Court scheduled the matter for oral
argument and ordered the parties to submit briefs outlining (1) whether Mr. Andriole’s actions
constituted the unauthorized practice of law in violation of § 11-27-2, and if so, (2) whether in
light of such violation, this Court should authorize the committee to take further action, and (3)
7 The union was represented by a licensed attorney in the Superior Court proceeding.
8 On September  1,  2009, the town sought from the committee a legal opinion on whether
nonlawyer representation in labor arbitration hearings constituted the unauthorized practice of
law.   The committee declined to take action at that time because no formal complaint had been
submitted.
9 Neither the town nor the committee requested that criminal prosecution or disciplinary action
be initiated against Mr. Andriole for his actions.
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the implications, if any, of nonlawyer representation in labor arbitrations.   The order also invited
interested parties to file briefs addressing these issues.10
II
Standard of Review
“It has long been the law of this state that the definition of the practice of law and the
determination concerning who may practice law is exclusively within the province of this court *
* *.”  Unauthorized Practice of Law Committee v. State Department of Workers’ Compensation,
543 A.2d 662, 664 (R.I. 1988) (citing Berberian v. New England Telephone and Telegraph Co.,
114 R.I. 197, 330 A.2d 813 (1975)); see also In re Ferrey, 774 A.2d 62, 64 (R.I. 2001) (“this
Court has exclusive and ultimate authority to determine who may, and may not be permitted to
practice law in this state”).   We recognize that the General Assembly has, from time to time,
enacted statutes that to  some extent codified and regulated the practice of law with little
interference  by this  Court.    Department  of  Workers’  Compensation,                                543  A.2d  at  664-65.
Although this legislative effort may be beneficial in protecting our citizenry from unqualified
persons promoting themselves as skilled practitioners of the law, we pause to reiterate that the
Supreme Court reserves to itself the ultimate and exclusive authority to determine what does and
does not constitute the practice of law within the state and to regulate those people qualified to
engage in the practice.   With that fundamental responsibility in mind, we proceed into the issues
presented by the matter presently before us.
10 We thank the Rhode Island Bar Association, the Rhode Island Attorney General, the American
Arbitration Association,  the  International  Association  of Fire  Fighters, the American  Civil
Liberties Union, Professors of Legal Ethics, and the National Education Association Rhode
Island for their well-reasoned amicus curiae briefs.
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III
Analysis
The committee’s petition, at its core, asks this Court to address the limited issue of
whether a nonlawyer public labor union employee representing a union in a grievance arbitration
is engaged in the unauthorized practice of law when a collective-bargaining agreement is the
governing  document  dictating  arbitration  as  the  mechanism  for  conflict  resolution.     In
determining this issue, it is beneficial to examine the evolution and current state of public sector
labor arbitration and nonlawyer representation therein, both nationally and in Rhode Island.
A
Brief History of Labor Arbitration
“Arbitration is a contractual process in which the parties agree to remove themselves
from judicial determination and instead present their cases to an impartial finder of fact and law
of their own choosing.”   Buttie v. Norfolk & Dedham Mutual Fire Insurance Co., 995 A.2d 546,
554 (R.I. 2010) (citing North Providence School Committee v. North Providence Federation of
Teachers,  Local                                                                                       920,  American  Federation  of  Teachers,   945  A.2d  339,  347  (R.I.  2008)).
Arbitration is  viewed  as  a highly effective  dispute-resolution process  because  it  offers        “a
relatively informal and expedient alternative to litigation.”  North Providence School Committee,
945 A.2d at 347.
Although it is the norm today for disputes involving collective-bargaining agreements to
be resolved through arbitration procedures, this has not always been the case.   From the late
nineteenth century until the 1930s, courts generally viewed arbitration unfavorably, believing
that “an agreement to arbitrate operated to divest courts of legislatively-granted jurisdiction and,
therefore,  was  illegal  and  void.”    Joseph  A.  Arnold,  The  Circumvention  of  Compulsory
Arbitration:   Two Bites at the Apple, or a Restoration of Employees’ Statutory Rights?, 33 Seton
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Hall L. Rev. 1207, 1211 (2003) (quoting Richard A. Bales, Compulsory Arbitration:   The Grand
Experiment In Employment  16  (1997)).   Because of “the difficulties of enforcing collective
agreements  [in court], some unions turned to grievance arbitration—  *  *  * as a means of
enforcing” such agreements.    Katherine Van Wezel Stone, Rustic Justice:    Community and
Coercion Under the Federal Arbitration Act,  77 N.C. L. Rev.  931,  1009-10  (1999).    First
introduced in the garment industry, grievance arbitration spread slowly until World War II, when
“the attitude of courts and unions toward grievance arbitration began to change.”  Id. at 1010; see
also Roberto L. Corrada, The Arbitral Imperative in Labor and Employment Law, 47 Cath. U. L.
Rev. 919, 927 (1998) (noting that arbitration became more accepted due to a need to avoid
disrupting wartime production).
In 1942, the federal government established the War Labor Board with the “intent [of]
maintaining labor peace to ensure stable wartime production * * *.” Van Wezel Stone, 77 N.C.
L. Rev. at  1010; James A. Gross, Incorporating Human Rights Principles Into U.S. Labor
Arbitration:   A Proposal For Fundamental Change, 8 Emp. Rts. & Emp. Pol’y J. 1, 4 (2004).
Because the arbitration of labor disputes served to avoid costly, hostile, and unpredictable work
stoppages, the War Labor Board established arbitration as “the preferred method for resolving
workplace disputes” by “encourag[ing] parties to include arbitration clauses in their collective
bargaining agreements and [to] accord[] arbitration awards substantial deference.”   Van Wezel
Stone, 77 N.C. L. Rev. at 1010 (citing James B. Atleson, Labor and the Wartime State:   Labor
Relations and Law During World War II, 60-65 (1998)).   In 1947, Congress enacted section 301
of the Labor Management Relations Act, which gave federal courts jurisdiction to hear and
decide labor disputes.   Van Wezel Stone, 77 N.C. L. Rev. at 1010.   While this initial phase of
labor arbitration advancement was spearheaded by Congress, emphasis and clarification was
brought about by the United States Supreme Court.
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In 1957, the Supreme Court in Textile Workers Union of America v. Lincoln Mills of
Alabama, 353 U.S. 448 (1957), “interpreted section 301 [of the Labor Management Relations
Act]  as  a  directive  to  the  federal  courts  to  develop  a  federal  common  law  of  collective
bargaining, * * * [with] support for and deference to private arbitration.”   Van Wezel Stone, 77
N.C. L. Rev. at 1011 (citing Textile Workers Union, 353 U.S. at 451).   Then, in 1960, the
Supreme Court decided three labor arbitration cases, collectively known as the “Steelworkers’
Trilogy.”11   Van Wezel Stone, 77 N.C. L. Rev. at 1011.   In these cases, the Court enforced
arbitration  provisions  included  in                                                                    “union-management  negotiated   [collective-bargaining
agreements] and approved the arbitration process for the resolution of disputes arising under
those [agreements].”   Arnold, 33 Seton Hall L. Rev. at 1214.   Together, these cases paved the
way for private arbitration to be the central and distinctive feature of our collective-bargaining
system, which continues to this day.12
11 These cases were United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S.
593 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574
(1960); and United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564
(1960).
12 The Supreme Court has affirmed arbitration as the heart of collective bargaining.   Litton
Financial Printing Division, A Division of Litton Business Systems, Inc. v. NLRB, 501 U.S. 190,
204  (1991)  (emphasizing that  “the arbitration duty is a creature of the collective-bargaining
agreement” (quoting Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionary Workers
Union, AFL-CIO, 430 U.S. 243, 250 (1977))); United Paperworkers International Union, AFL-
CIO v. Misco, Inc.,  484 U.S.  29,  38  (1987)  (“[I]t must be remembered that grievance and
arbitration procedures are part and parcel of the ongoing process of collective bargaining.”);
AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650 (1986)
(“[I]t has been established that where the contract contains an arbitration clause, there is a
presumption of arbitrability * * *.”).
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B
Nonlawyer Representation in Labor Arbitration:  A National Perspective
Like  Rhode  Island,  most  other  states  have  not  considered  whether  nonlawyer
representation in labor arbitration is the unauthorized practice of law.   However, those states that
have addressed this issue have generally permitted the practice.
For example, the Board on the Unauthorized Practice of Law of the Supreme Court of
Ohio recently determined in an advisory opinion that “[a] nonlawyer labor consultant, employed
by a union, may represent a local bargaining unit in an arbitration process dictated by a collective
bargaining agreement, as long as he/she do[es] not engage in those activities that equate to the
practice of law.”   Lawyer and Nonlawyer Representation of Labor Organizations in Collective
Bargaining and Labor Grievance Arbitration, Op. No. UPL 2008-01, 3 (February 7, 2008).   The
Ohio Board acknowledged that arbitration, while still an adversarial process, “does not rely on
the strict use of formal rules of civil procedure or rules of evidence.”   Id.   Likewise, a 1975
report of the Committee on Labor and Social Security Legislation of the Association of the Bar
of the City of New York concluded “that representation of a party in an arbitration proceeding by
a nonlawyer * * * is not the unauthorized practice of law.”  Committee Report, Labor Arbitration
and the Unauthorized Practice of Law, 30 Record of the Association of the Bar of the City of
New York, 422, 428 (1975).
Other jurisdictions have expressly permitted nonlawyer representation in arbitrations
under specific statutes or court rules governing the practice of law.   For example, the court rules
of Connecticut, Utah, and Washington explicitly permit nonlawyers to  participate in labor
arbitrations  without  determining  whether  or  not  the  act  constitutes  the  practice  of  law.13
13 Section 2-44A.(b) of the Connecticut Rules for the Superior Court Practice Book reads in
pertinent part:                                                                                          “Whether or not it constitutes the practice of law, the following activities by any
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California’s Code of Civil Procedure dictates that while a party to an arbitration has the right to
be represented by an attorney, “any party to an arbitration arising under collective bargaining
agreements * * * may be represented in * * * those proceedings by any person, regardless of
whether that person is licensed to practice law in this state.”   Cal.Civ.Proc.Code §§ 1282.4(a)
and 1282.4(h).   Although these relatively few states hardly indicate a conclusive trend, it is
notable that neither we nor the parties herein were able to uncover any jurisdiction that has
specifically  declared  that  nonlawyer  representation  in  labor  arbitrations  constitutes  the
unauthorized practice of law.14   Having surveyed other jurisdictions, we now explore the history
of the regulation of the practice of law and the role of labor arbitrations in Rhode Island.
C
The Practice of Law in Rhode Island
We  begin  by  reemphasizing                                                                              “that  the  definition  of  the  practice  of  law  and  the
determination concerning who may practice law is exclusively within the province of this court *
*  *.”    Department  of  Workers’  Compensation,  543  A.2d  at  664.    We  are  aware  of  the
Legislature’s efforts in attempting to codify a concept that is inherently difficult to define.   First
enacted in 1917, and as now codified in § 11-27-5, this statute provides that “[n]o person, except
a duly admitted member of the bar of this state, whose authority as a member to practice law is in
person are permitted:                                                                                     * * * (4) Participating in labor negotiations, arbitrations, or conciliations
arising under collective bargaining rights or agreements.”   Rule 14-802(c) of Utah’s Supreme
Court Rules of Professional Practice reads in pertinent part:                                             “Whether or not it constitutes the
practice of law, the following activity by a non-lawyer, who is not otherwise claiming to be a
lawyer or to be able to practice law, is permitted: * * * (c)(10) Participating in labor negotiations,
arbitrations  or  conciliations  arising under  collective  bargaining  rights  or  agreements  or  as
otherwise allowed by law.”   Rule 24(b) of Washington’s Rules of General Application reads in
pertinent part:                                                                                           “Whether or not they constitute the practice of law, the following are permitted: *
* * (5) Participation in labor negotiations, arbitrations or conciliations arising under collective
bargaining rights or agreements.”
14 It is noteworthy that Rule 20 of the American Arbitration Association’s Labor Arbitration
Rules and Expedited Labor Arbitration Procedures provide that “[a]ny party may be represented
[at a hearing] by counsel or other authorized representative.”
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full force and effect, shall practice law in this state.”15   However, despite the Legislature’s
attempts, we now reiterate what we articulated in Rhode Island Bar Association, 55 R.I. at 127,
179 A. at 141, that the authority “to regulate and control the practice of the law remains where it
has always been, notwithstanding the exercise by the [G]eneral [A]ssembly of its undoubted
power to declare acts of unauthorized practice of the law illegal * * *.”   This Court further
observed that the legislation involved in that case pertaining to the practice of law “was in aid of
the authority of this [C]ourt in the regulation and control of the practice of the law, and not
subversive of it.”   Id.   As such, Rhode Island’s Practice of Law Statute, chapter 27 of title 11,
may serve to aid this Court in its duty to regulate such activity, but may not in and of itself “grant
the right to anyone to practice law save in accordance with standards enunciated by this [C]ourt.”
Department of Workers’ Compensation,  543 A.2d at  664  (citing Berberian v. New England
Telephone and Telegraph Co.,  114 R.I.  197,  330 A.2d  813  (1975); In re Rhode Island Bar
15 The practice of law is defined in § 11-27-2 as:
“* * * the doing of any act for another person usually done by attorneys at law in
the  course  of  their  profession,  and,  without  limiting  the  generality  of  the
definitions in this section, includes the following:
“(1)   The appearance or acting as the attorney, solicitor, or representative
of another person before any court, referee, master, auditor, division, department,
commission, board, judicial person, or body authorized or constituted by law to
determine any question of law or fact or to exercise any judicial power, or the
preparation of pleadings or other legal papers incident to any action or other
proceeding of any kind before or to be brought before the court or other body;
“(2)   The giving or tendering to another person for a consideration, direct
or indirect, of any advice or counsel pertaining to a law question or a court action
or judicial proceeding brought or to be brought;
“(3)   The undertaking or acting as a representative or on behalf of another
person  to  commence,  settle,  compromise,  adjust,  or  dispose  of  any  civil  or
criminal case or cause of action;
“(4) The preparation or drafting for another person of a will, codicil,
corporation organization, amendment, or qualification papers, or any instrument
which requires legal knowledge and capacity and is usually prepared by attorneys
at law.”
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Association, 106 R.I. 752, 263 A.2d 692 (1970); Rhode Island Bar Association v. Automobile
Service Association, 55 R.I. 122, 179 A. 139 (1935)).
D
Labor Arbitrations in Rhode Island
In Rhode Island, the judiciary has a limited role in the arbitration process.   Prudential
Property and Casualty Insurance Co. v. Flynn, 687 A.2d 440, 441 (R.I. 1996) (citing Paola v.
Commercial Union Assurance Companies,  461 A.2d  935,  936  (R.I.  1983)); see also North
Providence  School  Committee,                                                                        945  A.2d  at                                                                             347   (“We  review  arbitral  awards  under  an
exceptionally  deferential  standard  as  a  means  of  ensuring  that  parties  may  benefit  from
arbitration                                                                                           *  *  *.”).    Indeed, a major incentive for parties  “voluntarily contract[ing] to use
arbitration as an expeditious and informal means of private dispute resolution” is to “avoid[]
litigation in the courts.”   Flynn, 687 A.2d at  441 (quoting Aetna Casualty & Surety Co. v.
Grabbert,  590 A.2d  88,  92  (R.I.  1991)).    The judiciary’s limited review is also statutorily
prescribed.   See Rhode Island’s Actions by Labor Organizations Statute, G.L. 1956 chapter 8 of
title 28; Rhode Island’s Arbitration Statute, G.L. 1956 chapter 3 of title 10; see also Jacinto v.
Egan, 120 R.I. 907, 911, 391 A.2d 1173, 1175 (1978).
Each year, labor and management organizations throughout Rhode Island enter into
collective-bargaining agreements,  many of which  provide for the arbitration  of unresolved
grievances.   This Court recognizes, as did the committee in the case at bar, that the common
practice in Rhode Island allows for nonlawyers to represent unions in arbitration proceedings,
although such practice is neither statutorily permitted nor proscribed in this state.   Indeed, the
record currently before this Court reflects that the town and union’s prior arbitration proceedings
were conducted with the union represented by a nonlawyer.
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E
Factors for Consideration
Although the use of nonlawyer representation in labor arbitrations is commonplace in
Rhode Island, this factor alone does not provide the necessary basis for this Court to authorize
this practice.   Keeping the public welfare at the forefront of our considerations, we must also
weigh the public policy interests involved with lay representation in labor arbitrations.
In assessing the benefits of allowing nonlawyer representation in labor disputes, we note
that “arbitration usually is not equivalent to judicial factfinding.   The record of the arbitration
proceedings is not as complete; the usual rules of evidence do not apply.”  Alexander v. Gardner-
Denver Co., 415 U.S. 36, 57 (1974).   Indeed, “[a] basic incentive for the use of arbitration is to
provide the parties with a mode of dispute resolution that is expeditious, inexpensive, and
informal.”   North Smithfield Teachers Association v. North Smithfield School Committee, 461
A.2d 930, 933 (R.I. 1983).
Further, in contrast to other types of disputes, labor disputes are unique in that the “law of
the  shop”  rather  than  strict  adherence  to  legal  principles  typically  controls.                Union
representatives are often particularly qualified to represent a union based on their familiarity with
the multilevel grievance process, their knowledge of the operating procedures, equipment, and
training, and their understanding of the formation and evolution of the applicable collective-
bargaining agreement.   This is not to say that licensed attorneys do not have, or are not able to
acquire, such knowledge of, or familiarity with, these matters, but simply to acknowledge why
union employees often represent unions in arbitrations.16
16 In a similar manner, the United States Supreme Court recognized this understanding when it
compared labor arbitrators and judges:
“The labor arbitrator is usually chosen because of the parties’ confidence in his
knowledge of the common law of the shop and their trust in his personal judgment
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Moreover, prohibiting this practice and requiring both the labor union and management
to retain a lawyer may formalize an arbitration proceeding, delay its conclusion, and raise the
cost for both parties.17  Committee Report, 30 Record of the Association of the Bar of the City of
New York, at 427-28 (suggesting that requiring lawyer representation will “greatly diminish the
informality, flexibility, speed, efficiency and economy which are the hallmarks of the grievance
resolution process”).
It is also deserving of mention that this Court and the General Assembly have permitted
nonlawyer representation to occur in other settings.   In Department of Workers’ Compensation,
543 A.2d at 666, a majority of the Court held that two statutes enacted by the General Assembly,
authorizing  employee  assistants  to  aid  injured  employees  in  informal  hearings  before  the
Department of Workers’ Compensation, did not violate this Court’s exclusive authority to
regulate the practice of law.    Acknowledging that the actions of the nonlawyer employee
assistants would generally fall within the definition of the practice of law, this Court nonetheless
authorized this conduct after recognizing the public need and deferring to the Legislature’s
assessment of the statutes’ necessity.  Id.18
to bring to bear considerations which are not expressed in the contract as criteria
for judgment.    The parties expect that his  [or her] judgment of a particular
grievance will reflect not only what the contract says but * * * such factors as the
effect upon productivity of a particular result, its consequence to the morale of the
shop,                                                                                                  [and]  his                                                                                       [or  her]  judgment  whether  tensions  will  be  heightened  or
diminished.                                                                                            *  *  *  The  ablest  judge  cannot  be  expected  to  bring  the  same
experience  and  competence  to  bear  upon  the  determination  of  a  grievance,
because he [or she] cannot be similarly informed.”   Warrior & Gulf Navigation
Co., 363 U.S. at 582.
17                                                                                                     “Growing  lawyer  involvement  in  labor  arbitration  hearings,  itself  a  manifestation  of
formalism, means the scheduling of arbitration hearings often hinges on lawyers’ availability and
the time required by lawyers to learn what party representatives involved in handling the
grievance already know.”   Reginald Alleyne, Delawyerizing Labor Arbitration, 50 Ohio St. L.J.
93, 96 (1989).
18 This Court in Unauthorized Practice of Law Committee v. State Department of Workers’
Compensation, 543 A.2d 662, 664-65 (R.I. 1988), noted that:
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Additionally, in accordance with G.L. 1956 § 28-7-9(a), the Rhode Island State Labor
Relations Board’s General Rules and Regulations allow nonlawyers to represent unions and
employers in unfair labor practice proceedings.    See  16-020-001 R.I. Code R.  §  5.01.2(b)
(“Business  managers,  field  agents,  union  stewards,  or  any  other  member(s)  of  a  labor
organization, may represent a union or an individual complainant in any proceeding before the
Board.”).
Juxtaposed  to  these  policy  arguments  are  the  various  factors  indicating  that  Mr.
Andriole’s actions in the arbitration hearing did, in fact, constitute the unauthorized practice of
law.   First, we look to the committee’s thorough investigation and report on the matter.   The
committee report noted that § 11-27-2 defines, without limitation, an activity that constitutes the
practice of law as “the doing of any act for another person usually done by attorneys at law in the
course of their profession, and, without limiting the generality of the definitions in this section,
includes the following * * *.” (Emphasis added.)   Section 11-27-2 then sets forth an exhaustive
list of settings and actions where a person doing an act for another qualifies as the practice of
law.19   Although an arbitration hearing is not specifically identified in § 11-27-2(1) as a forum
before which nonlawyers are prohibited from appearing on behalf of another party, the non-
limiting language emphasized above appears to preclude nonlawyers from engaging in attorney-
like activities in any context, even an alternative dispute resolution hearing.
“[T]he General Assembly has without interference by this court permitted a great
many services that would have come within the definition of the practice of law to
be performed  by insurance adjusters,  town clerks, bank  employees,  certified
public accountants, interstate commerce practitioners, public accountants * * *, as
well as employee assistants.   The plain fact of the matter is that each of these
exceptions enacted by the Legislature constituted a response to a public need.   In
each instance the Legislature determined that the persons authorized to carry out
the permitted activities were qualified to do so.”
19 See § 11-27-2 in note 15, supra.
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The committee, relying on § 11-27-2, also found that “Mr. Andriole engaged in a number
of activities that are                                                                                   ‘usually done by attorneys at law in the course of their profession.’”
Specifically,  Mr.  Andriole  presented  arguments,  examined  and  cross-examined  witnesses,
submitted evidence to the arbitrator, and objected to evidence and arguments presented by the
town.   In so doing, Mr. Andriole represented the union in a proceeding that would determine the
specific rights and duties of the parties to a legally binding contract.  In the process, Mr. Andriole
acted in ways normally attributed to the practice of law.
We also note that although § 11-27-11 specifically allows nonlawyers to participate in
particular practices  that  would  otherwise fall  within  the definition  of the practice of law,
nonlawyer representation in labor arbitrations is not among them.20
20
These permitted practices include:
“(1) Clerks of court and recorders of deeds * * * drafting * * * any legal
instruments that may be necessary for the proper conduct and discharge of their
respective offices and duties.
“(2) Clerks or registered students in law offices * * * acting under the
direction of a member of the bar of this state whose authority as a member to
practice law is in full force and effect.
“(3) Any person * * * occasionally collecting or adjusting any unassigned
claim of or against any member of his or her household or of or against his or her
regular and principal employer.
“(4) The performance of any service personally performed by any natural
person acting as administrator, executor, guardian, trustee, or other fiduciary in
the preparation * * * of inventories, accounts, tax returns, or other services * * *.
“* * *
“(6) Any person * * * drawing, in the regular course of his or her regular
business or employment, any note, bill, draft, bill of sale * * *.
“(7) Any certified public accountant or member of the American Institute
of Accountants * * * appearing or acting as a representative of another person
before any federal, state, or municipal department * * *.
“(8) Any person registered to practice before the Interstate Commerce
Commission * * * appearing or acting as representative of another person before
any federal, state, or municipal department * * *.
“(9) Any public accountant from advising a taxpayer in * * * preparing for
or on behalf of a taxpayer any federal, state, or municipal tax return  * * *.”
Section 11-27-11.
See also § 11-27-16 (listing practices permitted to corporations and associations).
- 16 -




As is evident from the credible arguments on both sides of the issue, we find this an
exquisitely close case.   Considering the foregoing factors, as well as the unique facts of the case
at bar,21 the participating members of this Court are reluctant to disturb the status quo at this
time.   Any decision to limit the practice of nonlawyer representation in public labor arbitrations
will undoubtedly have an impact on all public labor arbitrations throughout this state.  Having set
the framework for future consideration, as a judicial triumvirate we much prefer to review this
issue with the benefit of a full Court.   Goodheart v. Casey, 565 A.2d 757, 763-64 (Pa. 1989)
(recognizing the benefit of having “the reflective judgment enriched by the varied perspectives”
of a full court’s participation).
IV
Conclusion
Accordingly, although the conduct involved in this case may be the practice of law
pursuant to the language of § 11-27-2, because of the long-standing involvement of nonlawyer
union employees at public grievance arbitrations, we will not limit this involvement at this time.
We may in the future, however, and under the supervisory powers of the Court and with the full
Court participating, decide the generic issue of nonlawyers participating in public grievance
arbitrations.
Chief Justice Suttell and Justice Robinson did not participate.
21 We note that the Superior Court, having confirmed the arbitration award in favor of the town,
found the underlying matter moot.
- 17 -




Supreme Court
No. 2011-101-M.P.
In re Town of Little Compton                                          :
NOTICE:    This  opinion  is  subject  to  formal  revision  before
publication in the Rhode Island Reporter.  Readers are requested to
notify  the  Opinion  Analyst,  Supreme  Court  of  Rhode  Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.




RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                                      In re Town of Little Compton.
CASE NO:                                                            No. 2011-101-M.P.
COURT:                                                              Supreme Court
DATE OPINION FILED:   February 9, 2011
JUSTICES:                                                           Goldberg, Flaherty, and Indeglia, JJ.
WRITTEN BY:                                                         Associate Justice Gilbert V. Indeglia
SOURCE OF APPEAL:    Unauthorized Practice of Law Committee
JUDGE FROM LOWER COURT:
N/A
ATTORNEYS ON APPEAL:
For Town of Little Compton:    Richard S. Humphrey, Esq
For Little Compton Firefighters Local 3957:  Marc B. Gursky, Esq.




Supreme Court
No. 2011-101-M.P.
In re Town of Little Compton                                          :
NOTICE:    This  opinion  is  subject  to  formal  revision  before
publication in the Rhode Island Reporter.  Readers are requested to
notify  the  Opinion  Analyst,  Supreme  Court  of  Rhode  Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.




RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                                      In re Town of Little Compton.
CASE NO:                                                            No. 2011-101-M.P.
COURT:                                                              Supreme Court
DATE OPINION FILED:   February 9, 2012
JUSTICES:                                                           Goldberg, Flaherty, and Indeglia, JJ.
WRITTEN BY:                                                         Associate Justice Gilbert V. Indeglia
SOURCE OF APPEAL:    Unauthorized Practice of Law Committee
JUDGE FROM LOWER COURT:
N/A
ATTORNEYS ON APPEAL:
For Town of Little Compton:    Richard S. Humphrey, Esq
For Little Compton Firefighters Local 3957:  Marc B. Gursky, Esq.

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