NYC Bar Supports Client Disclosure Requirement for Attorney-Legislators

There is no basis for the claims by some legislators that information about the part-time law practices many maintain alongside their official duties, such as the identity of their clients, is privileged and confidential. The NYC Bar report, issued today, refutes this.

February 3, 2010

Perhaps this will finally put to rest the claims by some attorney-legislators in Albany that, as much as they would like to provide the public with full disclosure of their outside income, they are legally or ethically prevented from doing so.

Today the New York City Bar Association released a report that did more than merely state it is permissible for attorney-legislators to disclose the source of their outside income; it explicitly called for attorney-legislators to be included in all disclosure requirements, including requirements that attorney-legislators reveal the identities of their clients.**  As we have reported in the past, there is no basis for the claims by some legislators that information about the part-time law practices many maintain alongside their official duties, such as the identity of their clients, is privileged and confidential. The NYC Bar report provides further support:

“There is no basis for excluding lawyers from the public scrutiny to which legislators should be held. Requiring lawyer-legislators to make these disclosures will not violate the rules governing attorney conduct and will go a long way toward restoring public confidence in New York State’s governing process and the independence of legislators.”

While bar associations can be counted on to urge protection of attorney privileges to the highest degree, the New York City Bar report lays out in simple terms the limited nature of the attorney-client privilege. The attorney-client privilege is an area of the law that is not well understood by the general public; the report stresses that this uncertainty should not stand in the way of meaningful financial disclosure requirements for public officials who maintain private law practices. 

The report recommends that financial disclosure reforms include requiring attorney-legislators to reveal the identity of each client, the amount of the income over a minimum threshold from each such client, and a meaningful description of the services rendered in exchange for such income (including the making of referrals). The report is especially valuable to the current controversy because it brings a deep understanding of law practices and fee arrangements. The report recommends that “With regard to lawyers, disclosure should specify whether the fee arrangements are based on hours worked or contingency, whether a referral fee is involved, and whether any premium or other add-ons are involved.”   

The actions of the New York City Bar are to be applauded – having added their voices to the growing refrain for meaningful ethics reform in New York State, we hope legislators now will do the right thing. Given that yesterday’s gubernatorial veto has increased the likelihood that the legislature will revisit this issue, the legislature  has another chance to subject disclosure requirements for lawyers to serious, public deliberation. The committee notes that it is willing to assist the legislature in working through the technicalities of the final bill – yet another reason for the legislature to host an open discussion about ethics reform. 

Summary of the Report’s Findings:

  1. Attorney-legislators should be required to disclose: (i) the identity of their clients, (ii) the amount and nature of all fees and income above a minimum threshold; and (iii) a clear description of services provided in exchange for fees.
  2. Attorney-legislators should specify whether these fee arrangements are based on hours worked or contingency, whether a referral fee is involved, whether premiums or add-ons are involved.
  3. The disclosure requirement also should apply to candidates for the legislature.
  4. An exception to disclosure should apply to family law or criminal matters not yet a matter of public record.
  5. An independent commission, similar to those in Washington State and California, should be the arbiter of whether exceptions should be made for unusual circumstances, such as representations relating to possible business combinations, or cases where embarrassment or detriment to a client would result from disclosure. 

** Full disclosure: Brennan Center attorneys Larry Norden (who sits on the State Affairs Committee of the City Bar) and Kelly Williams were among the many attorneys who contributed to this City Bar report.

This statement was also posted at ReformNY.

 

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