Law Firm Turns to Logical Fallacies to Defend Its Non-Compliance with Ethics-Related Subpoenas

In New York State, lawyers are once again insisting that they are an exception to ethics laws. The Moreland Commission, a special investigatory commission called by the governor and consisting of district attorneys and other law enforcement officials, has subpoenaed the employers of several state legislators. According to an article in the Democrat and Chronicle, most of the employers quickly complied with the subpoenas and provided the requested information. But at least two of the employers are law firms, and they do not want to comply.

A member of one of the firms, Karl Sleight, a former executive director of the state ethics commission, employed three logical fallacies in his defense of noncompliance:

“It is ironic that a commission charged with purporting to examine ethics in government blatantly disregards the sacrosanct relationship of clients and their attorneys. Allowed to continue unfettered, this far-a-field inquiry would adversely impact every individual and business in New York.”

The relationship of clients and their attorneys is not "sacrosanct." There are legal ethics rules that prohibit the disclosure of certain information, though not under all circumstances. The commission is seeking information about legislators' outside income, clients, and contracts with the firm. The most controversial information would be the names of the firms' clients. But how can an ethics investigator determine if a legislator has not dealt responsibly with a conflict situation involving a client if it cannot know who the legislator's clients are?

A 2010 report by the New York City Bar Association, Reforming New York State's Financial Disclosure Requirements for Attorney-Legislators, states that the names of clients and their contracts with the firm are not confidential information, not sacrosanct at all:

Courts have routinely held that the identity of a client does not come within the purview of the attorney-client privilege, because the disclosure of representation does not reveal the substance of any such communications between the attorney and client. Courts have limited the attorney-client privilege to encompass only confidential communications, and have consistently held that, absent special circumstances, client identity and fee arrangements are not considered privileged communications.

The misrepresentation of legal ethics rules in order to accuse an ethics commission of being unethical employs two logical fallacies. First, it creates a straw man — people who disregard the sacredness of a relationship that is not sacred. It's easy to criticize this straw man, but he doesn't exist. So the criticism is fallacious. And second it constitutes an ad hominem attack — accusing these people of being hypocritical rather than criticizing their argument. In fact, they haven't been hypocritical at all.

Another logical fallacy is employed in saying that this inquiry could impact every individual and business in the state. This is a classical example of the slippery slope argument, a logical fallacy I wrote about in a 2011 blog post.

The law firms will likely also be insisting that their colleagues are protected by the Speech or Debate Clause. But the goals of this constitutional clause are the same as those of government ethics:  to prevent officials from putting their personal interest ahead of the public interest. The Speech or Debate Clause is intended to protect the public, not the public's representatives.

What these lawyer-representatives really seem to want is to hide their conflicts of interest by making any argument they can, however fallacious. If they care about ethics, they will cooperate with the subpoenas and provide all the information they are legally permitted to provide.

Robert Wechsler
Director of Research-Retired, City Ethics

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