Lawrence Gray, Esq.
20 Fireplace Drive
Kings Park, New York 11754
Suffolk County Executive Steve Levy
H. Lee Dennison Building
Veterans Memorial Highway
Hauppauge, New York 11788
Re: Suffolk’s Financial Disclosure Law
Legislator Lynne C., Nowick
59 Landing Avenue
Smithtown, New York 11787
July 12, 2008
Dear Suffolk County Executive Levy and Legislator Nowick:
This is about baloney. It‟s the Suffolk County Financial Disclosure Law.
On TV‟s “Law and Order” and in convenient ignorance with an agenda in Hauppauge, Town Halls and
other places, one hears that information is “attorney-client privileged” or someone's "privacy" will be violated,
or "disclosure will breach confidentiality.” No matter how sliced, those who spout these catchwords are serving
up baloney 95% of the time. Here‟s the bottom line of one voter‟s opinion. When someone claims that a
communication or document is "attorney-client privileged" or “confidential” or “private” --- irrespective of
what those latter terms are exactly supposed to mean --- it is usually a politician talking out of her or his back
pocket. And they usually have private reasons for doing so which they'd prefer not to publicly own up to. The
net effect for Suffolk County is its Financial Disclosure la w that fed off the hangover from the Watergate
Scandal in 1978 --- all for political brownie points. It‟s time for all “reformers” to revisit it and write a real
disclosure law. Slicing up the baloney requires some length.
Attorney Client Privilege – What It Is And What It Is Not
For its part, the attorney-client privilege dates back to the reign of Elizabeth I, initially --- get this one,
folks! --- resting on the attorney‟s honor. Today, it is the creature of narrowly circumscribed statute. It is
designed to facilitate candid and unfettered communications between a client and attorney for the purpose of
legal advice or representation. Society sacrifices some access to the truth in underpinning the important value
served by being able to consult candidly with a lawyer. If the right to counsel means anything it means the right
to counsel's advice based on confidential communications beforehand. But there are limits. One's desire or
private agreement with an attorney --- or anyone for that matter --- that what is said will be kept secret does not
fix matters. Legally privileged confidentiality is not a function of private expectation no matter how sincerely
maintained, nor may privileged confidentiality of any stripe be expanded by private agreement. It is the law
that delineates what communications one may expect to be kept confidential as a matter of law --- which,
statute along with appellate court decision, constitutes the public's policy on confidentiality. Real estate deals
that may be tipped off when applications for a zoning variance are made in Suffolk County town governments
are not among them, prot estations of sausage-suited Planning Department Directors to the contrary
notwithstanding. Neither are those businesses owned by real estate developers or the stockownership of their
shell corporations private or confidential.
The attorney-client privilege takes hold only if: (1) the person asserting it is or has sought to become a
client; (2) the person to whom the communication is made is a member of the bar; (3) that person is acting as a
lawyer qua lawyer; (4) the communication relates to a fact of which the attorney was informed by his client ---
without the presence of third parties;(5) the communication was for the purpose of securing legal advice,
services or representation; (6) the communication is not for the purpose of committing a crime or fraud or
concealing the same.
The mere fact that an attorney is involved does not make a communication privileged. Typical are
communications by and from lawyers holding the hands of, or pleading the cause of, clients before County,
Town or Village regulatory agencies. Attorney-client privileged documents revealed to government bureaucrats
are no longer privileged. Transferring physical possession of non-privileged documents to an attorney does not
make them attorney-client privileged. The presence of third parties during confidential conversations prevents
any confidentiality privilege from ever taking hold. Why? Because the presence of third parties makes them not
confidential. Consider the case of a husband who takes his wife with him when he discusses facts with his
attorney for the purpose of obtaining legal advice --- he's about to be arrested for stealing electricity from the
utility company. He needs his wife's support and comfort while he talks to the lawyer and, intermittently, he
and the wife confide in one another as the lawyer sits there listening. The statements of the husband and his
attorney are not attorney-client privileged because of the third party presence of the wife. So also the spouses'
confidences are not spousally privileged because of the third presence of the attorney.
“After dinner” and business conversations with an attorney are not privileged. Business or personal advice
spiced with legal advice is personal or business advice. An attorney who acts as an investigator or lobbyist or highly-paid,
document-delivery clerk for his client will be treated as such because he is not acting as an attorney. Client identity is not
privileged from disclosure. Neither is the fact, terms or financial arrangements contained in the retainer agreement. Such
are not confidential communications necessary to legal advice or representation but merely collateral incidents of them.
The identity of a client's third-party benefactor --- the guy who actually pays his attorney‟s fee --- is not privileged. Many
are the pimps, drug lords or mob bosses who hire in-house counsel for prostitution, drug or organized crime rings. The
amount of a lawyer‟s fee is not privileged. Indeed, the Internal Revenue Service imposes a penalty of $25,000 on any
attorney who accepts a fee of $10,000 or more in cash and does not report the client‟s name and the fee on an IRS form.
The IRS will “tack” together cash fees that are arbitrarily split up to circumvent the reporting requirement.
A client who consults an attorney for advice that will serve him in the commission of a crime or a fraud
receives no help from the law. Legal advice in furtherance of a fraud or crime --- as distinguished from advice concerning
a completed fraud or crime for purposes of legal defense --- is socially perverse and unworthy of protection. It matters not
that the attorney is unaware that his advice was sought for the purpose of facilitating a crime or fraud. In such situations,
the attorney may be compelled to testify against his client. All this is why claims of attorney-client privilege are 95%
Privacy and Confidentiality
Now to “privacy” and “disclosure would breach confidentiality” and other baloney. These unfocused terms are
palaver spooned out to mask official wrongdoing, conflicts of interest and smarmy relationships and practices. They do
no withstand analysis.
Telling a person a secret and swearing him to secrecy does not put the force of law behind it. One assumes the
risk that the party so sworn may reveal the secret or confidence. The law does not intervene because a person expects it
to. (Alas, many times the best way to get information out to the general public is to tell it to the village idiot and swear
him to secrecy. It works. This writer has done it many times with one such fellow living on Boxwood Drive in Kings
Park. Five minutes after I swore him to secrecy concerning buncombe it was all over town causing the writer‟s enemies to
chase the buncombe around for weeks.)
The United States Supreme Court has never recognized "privacy" as a free floating right that is anything one
wants to call it. Things called private that are not private in law are too numerous to enumerate. In the words of New
York's Court of Appeals: “It is doubtful that any such right exists, and [no one has cited ]authority to support the
proposition that it does. True, the Supreme Court has recognized a constitutional „inte rest in independence in making
certain kinds of important decisions‟ including a patient‟s „right to decide independently, with the advice of his physician,
to acquire and use medication.‟ Even though the outer limits of the decision-making aspect of the right to privacy „have
not been marked by the Supreme Court‟… the right to privacy typically has been held to encompass only „matters relating
to marriage, procreation, contraception, family relationships, and child rearing and education.‟” Pharmaceutical
Mfrs.Assoc. v. Whalen, 54 N.Y.2d 486, 496 (1981) see also United States v. Balsys, 524 U.S. 666 (1998). Other than
these matters, privacy is not a right unto itself. It is a value --- a value incident to and promoted by other rights
specifically defined by federal and state constitutions, such as the privilege against self-incrimination and the right to be
free from unreasonable searches and seizures. See, e.g., United States v. Balsys, 524 U.S. 666 (1998); Andr esen v.
Maryland, 427 U. S. 463 (1976).
Suffolk County’s Boob Bait Disclosure Law
Sunlight is the best disinfectant. The word "privacy" in legislative fora has become a subterfuge for stopping
legislation pertaining to the integrity of government. State, County, City, Town and Village laws regarding financial and
asset disclosure by elected public officials and bureaucrats are cases in point. Most are Three Card Monty, "you-think-
you see-it, but-you-don't" schemes; Suffolk County's Disclosure Law is a burlesque. It pretends to show everything while
Enacted in 1978, the Suffolk County Financial Disclosure Law declares that it is the policy of Suffolk County to
“insure to the citizens… a government that is administered free from any conflicts of interest", and to “recognize that the
citizens are entitled to a high standard of candor from their public servants,” and to “provide a means by which county
employees may disclose their business and personal affairs, which… reflect upon the integrity of government”, and to
“discourage and detect corruption and the appearance of corruption” and to “instill a sense of confidence and integrity and
impartiality in its public servants.”
The law requires county officials to annually file with the Board of Public Disclosure a Financial Disclosure
Statement. It is ten pages and requires the listing of assets, liabilities and sources of income. The form states that the
disclosure is submitted “under oath.” Intentional or not, this "oath" is meaningless. Its language precludes prosecution
for Perjury by False Written Statement because it does not require an unqualified sworn averment of fact. Rather, it has
an “attested” assertion over a jurat where one “certifies” that “to the best of his or her knowledge” the statement is “true,
correct and complete.” A perjury prosecution cannot be predicated on “ the best of his or her knowledge.” And we are
here talking about personal assets, income and liabilities. The law thus effectively immunizes officials from prosecution
even if they are caught lying red-handed under oath. Surely the attorney‟s for each of these state political subdivisions
know the legal difference between a certification and a jurat which requires an oath.
No Press Allowed
Without the eyes of the press and public, the Board of Public Disclosure is mandated to review all statements to
determine whether a conflict of interest exists. When or how often, and what kind of investigation, if any, precedes its
determination is anyone's guess. Confounded by an procedural scheme, the appearance of disclosure fades into the reality
of nondisclosure. In the best tradition of the 70‟s Hee-Haw, this law has a “we-say-so-therefore-it-is” asininity in service
to an agenda of nondisclosure. Here's the language: “All information shall be considered confidential and any disclosure
shall be an unwarranted invasion of personal privacy under the meaning of the Freedom of Information Law.” Touted
once in the Appellate Division, this bovine buncombe was given short shrift in a full-blown opinion exposing the Suffolk
County Financial Disclosure law as largely a sham. People v. Doe (Louis Tempera), 84 A.D.2d 182 (2d Dep‟t 1981).
Personal finances and asset ownership are decidedly not “personally private under the Freedom of Information Law” so as
to foreclose prosecutorial or public access. Suffolk County Executive Steve Levy and County Legislators know as much.
They are not that dumb; neither are the folks. Where thy treasure is, so is thy heart. No man can serve two masters.
The Suffolk Financial Disclosure Law authorizes an elected or appointed official to waive his or her “right to the
confidentiality.” Does the Clerk of the Legislature keep a list of those Suffolk officials who have waived confidentiality?
If there is no waiver the Board of Public Disclosure “may” make their financial statement public only if it deems a conflict
reflecting on the integrity of the county government exists --- and only if, "in the sole opinion of the majority of the
Board," such conflict warrants a public disclosure. This law is pure bull___. “The sole opinion” of a majority of the
Board is an arbitrary standard, of uncertain applicability and subject to interpretations as predictable as the weather. It is
an ad hoc, expedient nonstandard to be driven by political forces of momentary convenience. Any man who love s his
wife as much as he has argued with her knows what “may”, “sole opinion” and “majority” mean. Any conflict of interest
warrants public disclosure.
The law is also like a fisherman casting and reeling in. Prior to the Board‟s publication of anyone‟s financial
statement it must state its reasons and give the affected official 21 days to respond. At any time, “in its discretion”, the
Board may rescind or modify its order with or without written request. What exactly is meant by "in its discretion" when
there are no stated guidelines to guide that discretion except the "sole opinion" of a majority of the Board? This is not
discretion. It is a license to do what one pleases. An official can make his or her recission or modification request
verbally? The factual basis of such a request is not written down?
Why aren‟t these financial statements unqualifiedly public documents? No one is required to disclose bowel
disorders, sexual preference, toupees, undergarment sizes, criminal or psychiatric histories. Take the Suffolk County
Financial Disclosure Law off the books or amend it immediately to require all financial disclosure statements to be filed
with the Clerk of the Legislature as public documents.
Lawrence N. Gray, Esq.
CC: Sandra Peddie, Newsday
Suffolk County Legislators