Monday, January 11, 2010

Gillers: Protests of Lawyer/Client Privilege 'Laughable'

We can't say we're shocked that some legislators have been crying foul over some of Governor Paterson’s proposed ethics reforms, but no protest rings less true than that of the legislature’s lawyers who protest that disclosing their legal clients in the course of ethics reporting will violate attorney-client privilege or client confidence.

We don’t think these concerns are legitimate, and in Friday’s issue of the New York Law Journal ($$ -- subscription required), ethics expert and NYU Law Professor Steven Gillers made it abundantly clear that he doesn’t either:

Professor Stephen Gillers of New York University School of Law, a frequent commentator on professional ethics, said that as a general rule "there is no privilege shield for the identification" of a legal client in New York and he accused lawmakers who say they worry about violating the privilege of "crying wolf."

"Their claim that they are boxed in by the ethics rules is totally phony," Mr. Gillers said in an interview. "When people in my line of work look at the rules, it is laughable, transparently false."

A consensus is beginning to form in the legal community that there is no reason that New York couldn’t put in place a carefully worded disclosure requirement – with the appropriate protections – to remove the veil of secrecy surrounding lawyer-legislators’ outside income.

We hope legislators are aware of this consensus. If they're not, and they fail to add a disclosure requirement for lawyer-legislators in whatever ethics bill is now in development in Albany, we hope they will allow time for public comment, so the legal community can make them aware of that consensus. "Ethics Reform," after all, is in large measure supposed to be about bringing sunshine into government. It would be the ultimate irony, even in Albany, to create a new proposal behind closed doors . . . and then pass it without time for public comment or hearings.

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