It Should Come As No Surprise When Government Counsel Advises the Individual (Joseph Bruno) Rather Than the Office

Update: November 20, 2009 (see below)

The latest news from the federal trial of former New York state senate majority leader Joseph Bruno's is sadly not surprising. According to an Associated Press article yesterday, former senate legal counsel told Bruno to hand-deliver his financial disclosure forms so that there would not be any problems with federal mail fraud. The counsel also advised Bruno on what to disclose and, more important, what not to disclose on the financial disclosure forms, such as the many people Bruno took money from who were doing business with the state.

According to a New York Daily News article, the judge said of the hand-delivery advice, "That's the most extraordinary thing I've heard."

It's not the most extraordinary thing I've heard. Senate counsel was advising an individual how not to disclose and yet stay within the state law, and also how to prevent federal laws from being applicable. This is what any attorney would tell an individual client. Only a government attorney is not an attorney for an individual.

Senate counsel should not have been advising an individual at all, he should have been advising a senator, someone who is not supposed to look at ethics laws as maximum, but as minimum requirements. A senator should not be looking for loopholes that apply to his own ethical conduct, and a government attorney should not be helping him do so.

Senate counsel's two transgressions are as ordinary as they come:  advising the person rather than the office, and not recognizing that ethics laws are not like criminal laws: they provide minimum requirements not maximum requirements.

As long as government attorneys can get away with these two transgressions, many of them will continue providing such advice. There is too much pressure from one side (elected officials) and almost none from the other (ethics laws and professional responsibility rules, ethics commissions and attorney disciplinary boards).

It is difficult for individual government attorneys to stand up to this pressure, but as a group it would be easy for them to do so. Government attorney associations should make rules that explicitly prevent their members from providing such advice. They should explicitly require that government attorneys represent the office, not the individual that happens to be filling it, so that when asked, for example, to help hide damaging information, they can say that it is not their choice, they cannot provide such advice.

Update: November 20, 2009
An article in the Albany Times-Union states that in the cross-examination of the senate counsel, it was disclosed that Bruno "closely followed the advice of his Senate attorneys, who vetted many of his private business contracts and personally handled Bruno's financial disclosure forms. ... the Senate lawyers and other staffers handled nearly all of the senator's private business matters, including providing legal and contractual advice, administrative support, tax support and bookkeeping."

Robert Wechsler
Director of Research-Retired, City Ethics

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