Thursday, January 29, 2015

Gillers: "Albany Is a Cesspool...How to Clean It Up" // Legal Ethics Forum

Stephen Gillers (NYU Law) has a piece on the Sheldon Silver case in The Nation.  I have comments on Legal Ethics Forum on the referral fee/fee division issues presented.  Gillers points to ethics opinions that say a "mere" referral relationship is not enough to warrant the "of counsel" status that makes one part of the firm.   There are a lot of former judge baubles floating around the letterhead of law firms in New York and elsewhere. That is a disciplinary concern that would not be a focus of attention - were it not that the U.S. Attorney argues that the fees were a way of laundering a bribe.

Part time legislators with ongoing law practices and businesses are the norm in state government. The prosecution will have to prove trading favors for cash.  I find the U.S. Attorney's complaint long on rhetoric, short on facts in that regard.  In the Buckley v. Valeo/Citizens United era I am reminded of William Boss Tweed's concept of "honest graft".  - gwc
Legal Ethics Forum: "Albany Is a Cesspool. Here’s How to Clean It Up"
"Our own Stephen Gillers offers thoughts, including discussion of legal ethics issues, at The Nation. Excerpt:
 An obscure legal ethics rule will have a leading role in Silver’s trial. The rule allows one lawyer to share a fee with another lawyer even if the first lawyer does no work. The rule requires written disclosures to the client, and it requires that the first lawyer accept responsibility for the other lawyer’s work in writing. Silver’s likely defense—already signaled—will be that it is both legal and ethical for a lawyer who does no work to share fees. Or if he violated the ethics rule by failing to do the required paperwork, he should be professionally disciplined, not federally prosecuted. The thirty-five-page criminal complaint has the government’s response. It alleges that Silver used the ethics rule as a ruse to launder payments that were, in truth, in exchange for political favors, not client referrals. The complaint’s five counts charge that Silver did political favors to two real estate developers and a doctor, that in exchange for the favors the developers hired one law firm and the doctor steered patients to another law firm and that Silver got a cut of the fees that each firm earned from these clients. Of course, political favors are not crimes. They are what politicians do. But if they do them in exchange for money, it’s theft of the honest services they owe constituents and extortion, which are the crimes, along with conspiracy, leveled against Silver."

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