Legislators Hire Counsel to Guide Response to Potential Ethics Probe
ALBANY - Both houses of the Legislature have enlisted high-profile outside counsel to represent the chambers in an ethics investigation, a possible indication of an impending challenge to the Moreland Commission's probe, observers say.
Assembly Democrats retained Marc Kasowitz of Kasowitz, Benson, Torres & Friedman and Senate Republicans have brought in former Southern District U.S. Attorney Michael Garcia, now a partner at Kirkland & Ellis. Kasowitz and Garcia have capped their fee at $50,000.
It is unclear exactly what position the attorneys will take, but Kasowitz and Garcia were hired after the commission created by Governor Andrew Cuomo to investigate public corruption demanded information on lawmakers' outside income, including the identity of attorneys' clients, and legislators raised questions about the separation of powers doctrine, the speech and debate clause of the Constitution and attorney ethics rules.
The role of Kasowitz and Garcia will become clearer today, the due date for the requested information.
Cuomo in July announced a new Commission to Investigate Public Corruption, created under Executive Law §63(8) and the Moreland Act in the wake of several cases in which legislators have been charged with corruption or misconduct. The commission, which held its first public hearing Tuesday (NYLJ, Sept. 19), has the power to subpoena records and examine witnesses under oath.
In a recent letter to lawmakers, Danya Perry, chief of investigations for the Moreland Commission, asked officials to reveal the source of outside income exceeding $20,000, according to published reports.
The request seeks information from attorney-lawmakers about their clients that is more expansive than what they are required to provide in their annual public financial disclosure statement.
Now, lawyer-legislators generally have to identify clients, but they do not have to identify those under criminal investigation, in bankruptcy or involved in a domestic relations matter. Additionally, attorneys in the Legislature can request an exemption from the yearly reporting requirement "where disclosure of a client's identity is likely to cause harm."
But the Moreland Commission's request for information, which could result in a subpoena or even litigation if lawmakers do not comply, is broader and does not contain the caveats in the annual ethics form.
"The letter from the commission asks for detailed information on who their clients are, what the billing arrangements are and what the substance of their representation is, without regard to whether the client has already been identified in a publicly filed action," according to one attorney close to the investigation. "On one level, it could breach the Code of Professional Responsibility. On another, it could have a chilling effect on the lawyer-client relationship."