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Published by: Jon Campbell on Nov 22, 2013
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Kathleen Rice
Milton Williams, Jr.
William Fitzpatrick Chief Counsel
Kelly Donovan
Chief of Investigations
E. Danya Perry
Commission to Investigate
November 6, 2013
Karl Sleight, Esq. Harris Beach, PLLC
677 Broadway, Suite 1101
Albany, New York 12207
ubpoena Duces Tecum to Harris Beach, PLLC ( Harris Beach )
Dear Mr. Sleight:
The Commission to Investigate Public Corruption ( Commission ) has received your letter request, dated November 1, 2013, asking that the Commission withdraw its subpoena duces tecum directed to Harris Beach. As described in detail below, the subpoena is a classically proper exercise of the Commission's authority and will not be withdrawn. The Commission sincerely hopes that you will join those firms that have complied with the Commission's inquiry and hopes that, together, we
can avoid mutually burdensome litigation.
To that end, and in light of your arguments that the subpoena is overbroad, vague,
burdensome, and seeks documents not in existence or not within your control, the Commission will
consider any specific requests to define and narrow the scope of the subpoena without interfering with the Commission's lawful inquiry. The Commission already has agreed to extend the original return date of the subpoena. We now expect that by November 12 (a week prior to the subpoena's
extended return date) , you will make specific and reasonable suggestions to narrow particular
subpoena requests and propose a production and a timeline consistent with those suggestions.
he Subpoena Is Procedurally Proper
By Executive Order No. 106, Governor Cuomo empowered the Commission to conduct inquiries under Executive Law §§ 6 & 63(8). Those sections specifically include the power to
subpoena witnesses in order to compel testimony and produce documents. Without offering any specifics, Harris Beach argues that the subpoena somehow fails to comply with the processes set
forth in the Executive Order. Contrary to Harris Beach's suggestion, nothing in the Executive Law or the Executive Order
requires that the Commission adopt particular procedures before exercising subpoena authority
under § 6 and 63(8). While Paragraph V of the Executive Order authorizes the Co-Chairpersons of
the Commission to adopt such procedures and rules as they believe necessary to govern the
exercise [its] powers and authority . ., that paragraph does not purport to limit the Commission's
Special Counsel: Robert Morgenthau; Special Advisors: Joseph D Amico, Raymond Kelly, Barbara Bartoletti.
Commissioners: Patrick Barrett, Richard Briffault, Daniel Castleman, Derek Champagne, Eric Corngold, Kathleen Hogan, Nancy Hoppock, Seymour James, David Javdan, Robert Johnson, David R. Jones, Lance Liebman, Joanne Mahoney, Gerald Mollen, Makau Mutua, Benito Romano, Frank Sedita HT, P. David Soares, Kristy Sprague, Betty Weinberg Ellerin, Peter Zimroth, Thomas P. Zugibe.
Karl Sleight, Esq. November 6, 2013
Page 2
authority; it is a simply a grant of authority to the Co-Chairpersons. In any event, an executive order could not limit the authority of the Commission acting as a designee of the Attorney General under
Executive Law § 63(8).
See Matter of De Brkzi,
303 N.Y. 206, 213 (1951) (executive order requesting
that the Attorney General appoint members of the New York State Crime Commission under §
63(8) did not deprive Attorney General of discretion required by that section).
Although the Commission is not obliged to adopt procedures to govern the exercise of its
powers, certain statutory provisions govern the conduct of the Commission. For example, Executive
63(8) provides that it shall be a misdemeanor to disclose to any person other than the
governor or the attorney-general the name of any witness examined or any information obtained
upon such inquiry. In addition, the Commission's inquiry is governed by
73 of the Civil Rights
Law, which creates a Code of fair procedure for investigating agencies. These rules are sufficient
to protect the interests of any witness required to provide testimony or information to the
Commission. In addition to the overriding principles of Executive Law 63(8) and the Civil Rights
Law, the Executive Order requires that each subpoena have the unanimous support of the three Co-
Chairpersons. The subpoena to Harris Beach was issued consistent with all applicable requirements.
he Subpoena Seeks Materials Squarely Relevant to the Commission's Lawful Inquiry
Again without any support, Harris Beach asserts simply that the subpoena fails to provide a legal, legitimate basis. Yet, the subpoena was issued under the Commission's lawful authority and
falls neatly within its mandate.
The Commission is tasked with examining compliance by organizations and other persons
engaged in lobbying and other attempts to influence public policies or elections and is further
directed to investigate weaknesses in existing laws, regulations and procedures relating to
addressing public corruption, conflicts of interest, and ethics in State Government. Executive Order No. 106,
II(b) and (c);
Executive Law § 6 (authority to examine and investigate the
management and affairs of any . . . board);
id. §
63(8) (authority to inquire into matters concerning .
. . public justice ). In furtherance of its mandate, the Commission may subpoena any documents
that bear a reasonable relation to the subject matter under investigation and to the public purpose
to be achieved. N.Y.
Republican State COMM. v. N.Y S. Conttn'n on Gov't Integrity,
138 Misc.2d 790, 796
(Sup. Ct., N.Y. County 1988),
140 A.D.2d 1014 (1st Dep't 1988) (upholding housekeeping
account subpoena issued by Feerick Commission exercising authority under Executive Law
6 and
63 (8)).
The Commission's subpoena power is limited only by relevance and materiality.
Andrews Assoc., Inc. v. Office of the Inspector General,
85 A.D.3d 633 (1st Dep't 2011),
lv denied,
N.Y.3d 805. Thus, a motion to quash will be granted only 'where the futility of the process to uncover anything legitimate is inevitable or obvious' or where the information sought is 'utterly
irrelevant to any proper inquiry. '
Anheuser-Busch, Inc.,
71 N.Y.2d at 331-32 (quoting
Matter of Edge Ho
Holding Co.,
256 N.Y. 374, 382 (1931) and
Matter of
Belle Creole Int'l,
10 N.Y.2d at 196);
see lso
This is the same broad subpoena authority generally possessed by the Attorney General.
E.g., La Belle Creole Inn v.
Attorney General,
10 N.Y.2d 192, 196 (1961) (subpoena authority under section 63(12));
Anbexcer-Busch, Inc. v. Abrams,
N.Y.2d 327 (1988) (subpoena authority under the Martin Act).
Karl Sleight, Esq.
November 6, 2013
Page 3
N.Y. Republican State Comm.
138 Misc.2d at 796-97. And in assessing whether the Commission's
subpoena seeks information relevant to a proper inquiry, the. Commission is entitled to a
presumption that it is acting in good faith.
67 A.D.3d at 1146 (citing
Anheuser-Bush Inc.
N.Y.2d at 332,
Matter of La Belle Creole Int7
10 N.Y.2d at 196, and
Carlise v. Bennett
268 N.Y. 212,
217-18 (1935)).
The subpoena issued to Harris Beach seeks information that is clearly relevant and material
to its proper inquiry into the conflicts of interesta and ethics in State Government and the recommendation of possible reforms to such laws. New York law prohibits members of the
Legislature from receiving compensation relative to their official duties involving legislation and other government proceedings. Public Officers Law §73-2. New York law provides further that a member of the Legislature should not engage in activity which is in substantial conflict with the
proper discharge of his duties in the public interest. Public Officers Law §74-2. A review of 2012 financial disclosures indicates that average household incomes of legislators are significantly higher than those of the state's general population.
See e.g.
Common Cause/NY and the New York Public
Interest Research Group, Analysis of New York State Legislators' Personal Financial Interests
(September 2013).
Accordingly, the Commission may properly inquire as to the nature of
relationships between legislators and their employers in determining whether problematic conflicts
of interest exist and/or whether recommendations should be made to strengthen ethics rules that
may be contrary to the public trust.
III The Subpoena Does Not Seek Privileged or Confidential Materials
Contrary to Harris Beach's argument, the subpoena does not seek attorney-client privileged or confidential communications between Harris Beach and the firm's clients. New York courts have
uniformly held that communications regarding 'the identity of a client and information about fees
paid by the client' are not generally protected under the privilege.
In the Matter of Nassau County
Grand jug Subpoena v. Doe Law Firm
4 N.Y.3d 665, 669 (2005) (citing
Matter of Priest v. Hennessy
N.Y.2d 62, 69 (1980);
see also Matter of Claydon
103 A.D.3d 1051, 1053 (2013) (finding that the
identities of clients and fee arrangements are not protected confidential communications). Here, the Commission's subpoena seeks Documents and Communications relating to professional services
provided to Harris Beach by Michael Nozzolio, as well as records concerning Michael Nozzolio's
compensation by Harris Beach. Such Documents and Communications include,
inter alia
agreements, engagement letters, billable hour reports, a list of clients represented by Michael
Nozzolio and a general description of services provided by Michael Nozzolio to such clients.
New York courts have consistently held that documents of this nature do not trigger the attorney-
client privilege.
See e.g. Matter of Nassau County Grand Jug Subpoena v. Doe Law Firm
4 N.Y.3d at 669;
Matter of Priest
51 N.Y.2d at 65 (holding that fee arrangements between a client and attorney do not
ordinarily constitute a confidential communication and, thus, are not privileged in the usual case ).
Finally, the Commission seeks documents that plainly
not concern Harris Beach's clients,
including data relating to campaign finance activity by Harris Beach and its members and specific
Available at http://nypirg.org/pubs/goodgov/CCNY_NYPIRG_Ethics_Analysis-2.pdf
Subpoena at 7.

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