An Ethics Battle in Albany
Just one of an array of challenges facing Albany lawmakers and Governor David Paterson this session has been the task of passing an effective ethics reform bill. With the emergence of scandals in the past year, including the conviction of the former Senate Majority Leader, ethics reform has been a topic of intense debate in Albany.
Governor Paterson vetoed the bill (S.6457/A.9544) that the Legislature passed and delivered to him in January, because he felt it did not go far enough, and on February 8th the legislature failed to override the veto. Of the many issues addressed by this reform bill, including campaign finance and procedures for ethics investigations, one that the City Bar has found particularly compelling has been the issue of client disclosure by attorney-legislators. The version of the bill passed by the Legislature provided that all legislators receiving fees for outside work must disclose their clients, fees, and services performed—except for legislators who are attorneys. Some have argued that to force attorneys to disclose such information would violate attorney-client privilege.
The City Bar disagrees. The disclosure of clients by attorney-legislators would not violate attorney-client privilege, and is in fact necessary to facilitate open government, concludes a report issued this month by the State Affairs, Government Ethics, and Professional Responsibility Committees. Attorney-legislators in New York should be held to the same rigorous disclosure requirements as other legislators, with appropriate safeguards for privileged information and client confidentiality, the City Bar believes.
The City Bar's position does allow for exceptions: First, where the mere fact of representation creates attorney-client privilege, an exception to disclosure should be made. Second, in order to be consistent with ethical rules, an exception should be made in those limited situations where disclosure of client identity would be detrimental or embarrassing to the client. Third, client consent to disclosure should be obtained. An independent commission should be created to determine when such information should not be disclosed, as is the case in states like California and Washington. In addition, the law should operate prospectively, covering new clients and new matters of existing clients.
On February 8th, the New York Times published an editorial supporting the City Bar’s proposal of attorney-legislator disclosure.
Read the City Bar's report here.