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
<a href="http://www.democratandchronicle.com/article/20131122/NEWS01/311220039&q…; target="”_blank”">an

article in the <i>Democrat and Chronicle</i></a>, 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.<br>
<br>

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: <blockquote>

“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.”</blockquote>

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?<br>
<br>
A 2010 report by the New York City Bar Association, <a href="http://www.nycbar.org/pdf/report/uploads/20071850-ReformingNYSFinancial… New York State's Financial Disclosure
Requirements for Attorney-Legislators</a>, states that the names
of clients and their contracts with the firm are not confidential
information, not sacrosanct at all:<blockquote>

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. </blockquote>

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.<br>
<br>
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 href="http://www.cityethics.org/content/logical-fallacies-vi-slippery-slope&q…; target="”_blank”">a
2011 blog post</a>.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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