186374798 Memo of Law Re QuashProtective Order HBROC 2152980 v1

8/13/2019 186374798 Memo of Law Re QuashProtective Order HBROC 2152980 v1

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SUPREME COURTOFTHE STATE OFNEWYORK

COUNTY OFNEW YORK

IN THE MATTER OF

SUBPOENA ISSUED BY COMMISSION TOINVESTIGATE PUBLIC CORRUPTION TO

HARRIS BEACH PLLC

Index No.: __________

I.A.S. PART:JUSTICE

HARRIS BEACH PLLCSMEMORANDUMOFLAW IN SUPPORT OF PETITIONTO

QUASH NON-JUDICIAL SUBPOENAAND FOR A PROTECTIVE ORDER

HARRIS BEACH PLLC

99 Garnsey RoadPittsford, New York 14534

Telephone: (585) 419-8800

Fax: (585) 419-8811

ILED: NEW YORK COUNTY CLERK 11/21/2013 INDEX NO. 160880/

YSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/21/


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TABLE OFCONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iii

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................2

A. The Governors Proposed Public Corruption Reform Legislation ..........................2

B. The Governor Forms the Commission to Investigate Public

Corruption................................................................................................................3

C. The Commission Issues Subpoenas to Legislators Outside

Employers ................................................................................................................5

ARGUMENT...................................................................................................................................8

I. THE SUBPOENA SHOULD BE QUASHED BECAUSE ITEXCEEDS THE COMMISSIONS STATUTORY AUTHORITY

UNDER NEW YORK EXECUTIVE LAW............................................................8

A. The Subpoena Constitutes an Unconstitutional IntrusionInto the Affairs of the Legislature by the Executive Branch

and Exceeds the Jurisdiction Afforded to the Executive

Branch by the Moreland Act........................................................................8

i. Governor Cuomos Grant of Authority to the

Commission to Investigate The Legislature Exceedsthe Governors Jurisdiction Under the Moreland Act......................8

ii. The Executive Order Impermissibly Relies onExecutive Law Section 63(8) As Authority to

Pursue Indirectly, Through the Attorney General,

What the Governor is Forbidden From Pursuing

Directly Under the Moreland Act ..................................................10

iii. The Subpoena Pursues Indirectly, Through Harris

Beach, What the Commission is Forbidden fromPursuing Directly, From Senator Nozzolio....................................13

B. The Subpoena was Improperly Issued to ImplementGovernor Cuomos Coercive Strategy To Effect Legislative

Reform .......................................................................................................13


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C. The Subpoena was Improperly Issued Prior to the

Commissions Promulgation of Rules and Procedure ...............................15

II. THE SUBPOENA SHOULD BE QUASHED BECAUSE IT IS

NOTHING MORE THAN AN IMPERMISSIBLE FISHINGEXPEDITION........................................................................................................16

A. The Commission Has No Factual Predicate to Support theSubpoena....................................................................................................16

B. The Admission That the Subpoena is Part of a Criminal

Investigation Subjects the Subpoena to a HeightenedEvidentiary Threshold That the Commission Cannot Satisfy....................18

C. The Information Demanded of Harris Beach Is Too Far-

Reaching and Bears Little to No Relevance to theCommissions Purported Purpose..............................................................19

III. THE SUBPOENA MUST BE QUASHED BECAUSE IT NOT

ONLY DEMANDS PRIVILEGED AND CONFIDENTIAL

MATERIAL, BUT IT IS OVERLY BROAD, VAGUE, UNDULY

BURDENSOME AND OPPRESSIVE..................................................................22

A. The Subpoena Demands Disclosure of Confidential,

Privileged and Proprietary Information .....................................................23

B. The Subpoena is Overbroad, Vague and Unduly Burdensome .................25

C. The Subpoena Is Oppressive......................................................................29


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TABLE OFAUTHORITIES

Page

Cases

2961 Realty Corp. v. Temp. Comm'n of Investigation of State of N.Y.,

115 Misc. 2d 768 (Sup. Ct. N.Y. County 1982)........................................................................ 20

Brodsky v. N.Y. Yankees,26 Misc. 3d 874 (Sup. Ct. Albany County 2009)................................................................ 17, 26

Cunningham & Kaming, P.C. v. Nadjari,53 A.D.2d 520 (1st Dept 1976).......................................................................................... 24, 25

DiBella v. Hopkins, 403 F.3d 102 (2d Cir. 2005)......................................................................... 24

Fahy v. Comm'n to Investigate Allegations of Police Corruption

& Citys Anticorruption Procedures, 65 Misc. 2d 781

(Sup. Ct. N.Y. County 1971),aff'd, 36 A.D.2d 802 (1st Dept 1971) ...................................... 27

Finger Lakes Racing Assn. v. New York State Racing & Wagering Bd.,

45 N.Y.2d 471 (1978) ................................................................................................................. 9

Future Tech. Assocs. v. Special Commr of Investigation

for N.Y.C. Sch. Dist., 115054/2010, 2011 N.Y. Misc. LEXIS 1352(Sup. Ct. N.Y. County March 17, 2011) ................................................................................... 17

Harlem Teams for Self-Help, Inc. v. Dept of Investigation of City of N.Y.,122 Misc. 2d 1066 (Sup. Ct. N.Y. County 1984)................................................................ 16, 19

Horn Constr. Co. v. Fraiman,

34 A.D.2d 131 (1st Dept 1970),aff'd, 29 N.Y.2d 559 (1971) ................................................. 21

In re Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244 (1998)............................................ 11, 13

In re New York State Superfund Coalition

v. New York State Dept. Of Envtl. Conservation, 75 N.Y.2d 88 (1989) ..................................... 9

In re of Attorney Gen. of State of N.Y., 269 A.D.2d 1 (1st Dept 2000)........................... 11, 13, 20

Lerner v. Lerner, 90 A.D.2d 452 (1st Dept 1982)................................................................. 22, 25

Mahoney v. Staffa, 184 A.D.2d 886 (3d Dept 1992)................................................................... 25


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Myerson v. Lentini Bros. Moving & Storage Co.,

33 N.Y.2d 250 (1973) ........................................................................................................ passim

N.Y. Shredding Corp. v. NYC Dept of Investigation,

184 Misc. 2d 174 (Sup. Ct. N.Y. County 2000)........................................................................ 16

N.Y.C. Dep't of Investigation v. Passannante,

148 A.D.2d 101 (1st Dept 1989)........................................................................................ 18, 21

Naples v. Whelan, 100 A.D.2d 743 (4th Dept 1984),aff'd, 63 N.Y.2d 891 (1984) ................................................................................................ 17, 20

Natl Freelancers, Inc. v. State Tax Commn, Dept of Taxation & Fin.,126 A.D.2d 218 (3d Dept 1987) ................................................................................................ 1

New York Statewide Coalition of Hispanic Chambers of Commerce

v. New York City Dept. of Health and Mental Hygiene,110 A.D.3d 1 (1st Dept 2013).................................................................................................. 15

Nicholson v. State Comm'n on Judicial Conduct,67 A.D.2d 649 (1st Dept 1979).......................................................................................... 16, 18

Nicholson v. State Comm'n on Judicial Conduct,68 A.D.2d 851 (1st Dept 1979)................................................................................................ 16

Pavillion Agency, Inc. v. Spitzer,9 Misc. 3d 626 (Sup Ct. New York County 2005).............................................................. 23, 24

People ex rel. Spitzer v. Grasso, 42 A.D.3d 126 (1st Dept 2007)........................................ passim

Raynor v. Landmark Chrysler, 18 N.Y.3d 48 (2011) ................................................................... 10

Reuters Ltd. v. Dow Jones Telerate, Inc.,231 A.D.2d 337 (1st Dept 1997)........................................................................................ 23, 29

Straus v. Ambinder, 61 A.D.3d 672 (2d Dept 2009) ................................................................... 25

Suffolk County Builders Assn. v. County of Suffolk,

46 N.Y.2d 613 (1979) ................................................................................................................. 8

Temp. State Comm'n on Living Costs & Econ. v. Bergman,

80 Misc. 2d 448 (Sup. Ct. N.Y. County 1975).................................................................... 12, 19

Tierney v. Cohen, 268 N.Y. 464 (1935)........................................................................................ 11


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Tze Chun Liao v. New York State Banking Dept.,

74 N.Y.2d 505 (1989) ............................................................................................................... 12

White Bay Enters. v. Newsday, Inc.,

288 A.D.2d 211 (2d Dept 2001) .............................................................................................. 25

Wise v. Consolidated Energy Co. of N.Y.,

282 A.D.2d 335 (1st Dept 2001).............................................................................................. 23

Statutes

N.Y. Exec. Law 6......................................................................................................... 1, 3, 10, 11

N.Y. Exec. Law 63(8) ......................................................................................................... passim

N.Y. Exec. Law 63(12) ................................................................................................................ 1

N.Y. Exec. Order No. 106, I ........................................................................................................ 4

N.Y. Exec. Order No. 106, II(a)-(c)............................................................................................. 4

N.Y. Exec. Order No. 106, IV ..................................................................................................... 4

N.Y. Pub. Off. Law 73-a............................................................................................................ 28

N.Y. Pub. Off. Law 73-a(3) ....................................................................................................... 28

N.Y. Pub. Off. Law 73-a(8)(b)(v).............................................................................................. 24

N.Y. State Finance Law 187 ........................................................................................................ 1

Other Authorities

E. Breuer,Moreland Act Investigations in New York: 1907-65 (1965) at pp. 29......................... 10

Glenn Bain and Kenneth Lovett, Cuomo Believes Anti-Corruption CommissionCan Force Politicians to Give Details on Outside Incomes, New York Daily

News (Sept. 24, 2013) ............................................................................................................... 18

Governors Press Office, Governor Cuomo Appoints Moreland Commission to

Investigate Public Corruption, with Attorney General Schneiderman

Designating Commission Members as Deputy Attorneys General(July 2, 2013)...................... 3

Governors Press Office, Governor Cuomo Details Comprehensive Reforms to

Prevent Public Corruption, Modernize New Yorks Voting Laws, and Reduce

the Influence of Money in Politics (June 11, 2013)..................................................................... 2


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Governors Press Office, Governor Cuomo Proposes New Class of Public

Corruption Crimes(April 9, 2013) ............................................................................................. 2

Governors Press Office, Governor Cuomo Signs Ethics Reform Legislation

(Aug. 15, 2011),. ....................................................................................................................... 28

Interview with Attorney General Schneiderman, Capital Pressroom with Susan

Arbetter (Nov. 12, 2013) ..................................................................................................... 12, 14

Kenneth Lovett & Glenn Bain,Cuomo Believes Anti-corruption Commission Can

Force Politicians to Give Details on Outside Income, New York Daily News

(Sept. 24, 2013) ........................................................................................................................... 5

Kenneth Lovett & Glenn Bain, Senate and Assembly Leaders Refuse to Disclose

Details About Outside Jobs to Gov. Cuomos Anti-corruption Commission,

New York Daily News (Sept. 20, 2013) ..................................................................................... 4

Kenneth Lovett, Gov. Cuomo Expects Challenges To Anti-Corruption

Commission Subpoenas, New York Daily News (Oct. 21, 2013)............................................. 14

N.Y. Eth. Op. 645, 1993 WL 560284 (May 3, 1993) ................................................................... 24

N.Y. Exec. Order (Cuomo) 106 ............................................................................................. passim

N.Y. Exec. Order (Cuomo) 106, I.............................................................................................. 11

N.Y. Exec. Order (Cuomo) 106, V ............................................................................................ 15

Press Release from The Moreland Commission to Investigate Public Corruption,

Statement From Moreland Commission Co-Chairs(Oct. 15, 2013) .......................................... 5

Thomas Kaplan, Cuomo Creates Special Commission to Investigate CorruptElected Officials, New York Times (July 2, 2013) ................................................................... 25

Thomas Kaplan, Cuomo Says Abortion and Anticorruption Bills Arent Likely toPass Legislature, New York Times (June 17, 2013) .................................................................. 3

Thomas Kaplan, Panel to Investigate State Democratic Party, New York Times(Oct. 15, 2013) ............................................................................................................................ 5

Yancey Roy,Skelos: No witch hunt, Newsday (July 2, 2013), at A34..................................... 18

Rules

N.Y. C.P.L.R. Article 23................................................................................................................. 1


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N.Y. C.P.L.R. 2304...................................................................................................................... 1

N.Y. C.P.L.R. 3103...................................................................................................................... 2

N.Y.C.R.R. tit. 13 400.2 .............................................................................................................. 1

N.Y. Rules of Professional Conduct, Rule 1.6 ....................................................................... 23, 24

N.Y. Rules of Professional Conduct, Rule 1.6, Comment 2......................................................... 29


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PRELIMINARY STATEMENT

On October 15, 2013, Harris Beach PLLC (Harris Beach) received a non-judicial

subpoenaduces tecum(Subpoena) issued by Danya Perry, Deputy Attorney General and Chief

of Investigations, on behalf of the Moreland Commission to Investigate Public Corruption (the

Commission). Affidavit of Karl J. Sleight, dated November 21, 2013 at 11, Exhibit C

(herein Sleight Aff.). The Subpoena is purportedly authorized pursuant to New York

Executive Law Sections 6, 63(8) and 63(12), State Finance Law Section 187, N.Y.C.R.R. tit. 13

section 400.2, New York Civil Practice Law and Rules Article 23 and Executive Order 106.

Harris Beach is a private limited liability company that has been providing legal services

in New York for over 150 years. Among Harris Beachs practicing attorneys is Michael

Nozzolio, who, separate and independent from his legal practice at Harris Beach, serves as a

New York State Senator. Senator Nozzolio has practiced at Harris Beach since 1995, and since

January 1, 1983 has separately served as a member of the New York State Assembly and more

recently as a member of the New York State Senate.

For a non-judicial subpoena to be enforceable under New York law, the issuing entity

must establish: (1) its authority for both engaging in such an investigation and issuing the

subpoena; (2) an authentic factual basis to warrant the particular investigation; and (3) that the

evidence sought is reasonably related to the subject of inquiry. Myerson v. Lentini Bros. Moving

& Storage Co., 33 N.Y.2d 250, 258 (1973); see also Natl Freelancers, Inc. v. State Tax

Commn, Dept of Taxation & Fin., 126 A.D.2d 218, 220 (3d Dept 1987). The Commission has

not and cannot establish any of the three prerequisitesfailure to do so as to any one of which is

fatalto support enforcement of the Subpoena. Accordingly, pursuant to N.Y. C.P.L.R. 2304,

Harris Beach moves to quash the Subpoena on the grounds that: (1) it exceeds the Commissions

statutory authority and violates New Yorks separation of powers doctrine, as is more fully set


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forth in the memorandum of law filed by the New York State Senate in connection with its own

challenge to the Subpoena, which Harris Beach hereby incorporates in its entirety; (2) because

there is no factual predicate of public corruption or wrongdoing by Harris Beach or Senator

Nozzolio, the Subpoena is nothing more than an unfounded and highly intrusive fishing

expedition; (3) it is substantively improper because it (a) seeks confidential and privileged

information, (b) is overbroad, vague and unduly burdensome, and (c) is oppressive. Sleight Aff.,

16, Exhibit D. For these reasons, Harris Beach requests that this Court (1) quash the Subpoena,

or, in the alternative, (2) issue a protective order pursuant to N.Y. C.P.L.R. 3103 directing that

Harris Beach need not respond to the Subpoena.

STATEMENT OF FACTS

A. The Governors Proposed Public Corruption Reform Legislation.

On April 9, 2013, Governor Cuomo proposed the Public Trust Act, the first piece of a

three-part legislative package purportedly aimed at curbing public corruption by implementing:

(1) tougher punishments for public corruption crimes; (2) voting reforms; and (3) campaign

finance reforms.1

None of the Governors proposed bills called for state legislators to disclose additional

information beyond that which the Public Integrity Reform Act of 2011 already obligates them to

disclose about their outside employment or clients. Nor would the proposed legislation have

imposed any special disclosure requirements on legislators outside employers.

Despite holding several news conferences about the proposed legislation during the

spring of 2013, the Governor did not release all three proposed bills until June 11, 2013nine

1 Governors Press Office, Governor Cuomo Proposes New Class of Public Corruption Crimes (April 9, 2013),

https://www.governor.ny.gov/press/04092013New-Class-of-Public-Corruption-Crimes; Governors Press

Office,Governor Cuomo Details Comprehensive Reforms to Prevent Public Corruption, Modernize New Yorks

Voting Laws, and Reduce the Influence of Money in Politics (June 11, 2013),

http://www.governor.ny.gov/press/06-11-2013-Influence-of-Money-in-Politics.


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days before the end of the legislative session. On June 17, 2013, the Governor acknowledged in

a radio interview that he did not expect the Legislature to approve his proposed public corruption

laws before the sessions June 20, 2013 close.2

The Governor threatened that should the

Legislature fail to act, he would appoint a commission to investigate the role of money in the

State political system.3

As the Governor predicted, the legislative session closed before the bills were brought to

the Senate floor for a vote.

B. The Governor Forms the Commission to Investigate Public Corruption.

Expressing his frustration with the Legislatures failure to enact his proposed legislation,4

on July 2, 2013, pursuant to New York Executive Law Sections 6 and 63(8), the Governor issued

Executive Order 106, establishing the Commission to Investigate Public Corruption. Sleight

Aff., Exhibit C. According to the Executive Order, the Commissions ostensible purposes

include investigating: (1) the management and affairs of the New York State Board of Elections,

including an examination of compliance with and the effectiveness of campaign finance laws; (2)

weaknesses in existing laws, regulations and procedures regulating lobbying, including

compliance by organizations and other persons engaged in lobbying or otherwise attempting to

influence public policies or elections; and (3) weaknesses in existing laws, regulations and

procedures related to addressing public corruption, conflicts of interest and ethics in State

2 See Thomas Kaplan, Cuomo Says Abortion and Anticorruption Bills Arent Likely to Pass Legislature, New

York Times (June 17, 2013), http://www.nytimes.com/2013/06/18/nyregion/cuomo-says-abortion-and-

anticorruption-bills-arent-likely-to-pass-legislature.html.3 See id.4 In a July 2, 2013 press release announcing the formation of the Commission, the Governor stated: From the

beginning, I said I would not accept a watered-down approach to cleaning up Albany and that the Legislature

must either pass th is legislative package or I would empanel an investigative commission tasked with

accomplishing these same goals to achieve reform. Since the Legislature has failed to act, today I am formally

empanelling a Commission to Investigate Public Corruption . . . . Governors Press Office,Governor Cuomo

Appoints Moreland Commission to Investigate Public Corruption, with Attorney General Schneiderman

Designating Commission Members as Deputy Attorneys General (July 2, 2013),

http://www.governor.ny.gov/press/07022013-new-moreland-commission-named (emphasis added).


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Government.5 The Governor directed Attorney General Eric Schneiderman to inquire into these

three areas and appointed twenty-five members to the Commission to assist him in the endeavor,

ten of whom are sitting district attorneys.6 Pursuant to N.Y. Exec. Law 63(8), the Governor

appointed those ten attorneys as Deputy Attorneys General.7

On or about August 27, 2013, the Commission sent letters directly to state legislators

whose outside income from any single non-legislative source exceeds $20,000. Senator

Nozzolio received one of those letters. The letters demand that the legislators provide certain

information regarding their outside employment, including: (1) a description of the services

provided through outside employment; (2) the amount of compensation received for those

services, and the basis for computing that compensation; and (3) for those legislators who are

attorneys, a list of clients in any civil matters or any publicly filed criminal matters in which the

legislator is the attorney of record. Sleight Aff., 7, Exhibit A.

On September 20, 2013, the State Assembly and Senate responded in a joint letter,

declining to produce the requested material. They further stated that all legislators had already

submitted annual statements of financial disclosure to the Legislative Ethics Commission as

required by the Public Integrity Reform Act of 2011, which were publicly available and included

some information requested by the Commission. SeeSleight Aff., 9, Exhibit B.

That same day, Commission spokesperson Michelle Duffy suggested that the response

from the Assembly and Senate implied the legislators had something to hide: As the old adage

goes, if youve done nothing wrong, you have nothing to hide.8 Moreover, she described the

5 Exec. Order No. 106, II(a)-(c).6 Exec. Order No. 106, I.7 Exec. Order No. 106, IV.8 Kenneth Lovett & Glenn Bain, Senate and Assembly Leaders Refuse to Disclose Details About Outside Jobs to

Gov. Cuomos Anti-corruption Commission, New York Daily News (Sept. 20, 2013),http://www.nydailynews.com/ news/politics/legislature-rejects-cuomo-anti-corruption-commission-request-article-1.1463102.


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Legislators position as legally indefensible, ethically repugnant, and disrespectful to the

publics right to know, threatening that [t]here are a number of avenues through which the

Commission can obtain the information being sought, and we will pursue them.9 At a press

event on September 23, the Governor echoed this rhetoric: They [the panel] are

prosecutors . . . . When they say they have other avenues, it means they have other avenues

they are going to pursue.10

On October 15, 2013, the Commissions three co-chairs stated that the Commission

would proceed to aggressively move forward in compelling the production of information into

specific matters the Commission is investigating.

11

Later that day, the Commission emphasized

the broad scope of its investigation, claiming, Today, in addition to the investigation into the

Legislature, the Moreland Commission has moved to look across the board at all housekeeping

accounts . . . . Everything is on the table. We are looking at everything.12

C. The Commission Issues Subpoenas to Legislators Outside Employers.

Rather than issue a subpoena directly to New York legislators, however, the Commission

issued subpoenas to the employers, including law firms, of those legislators with outside income

over $20,000. On October 15, 2013, Harris Beach was served with the Subpoena at issue on this

motion. As signaled by and consistent with the Commissions overheated rhetoric, the Subpoena

demands substantially more information than what was sought by the informal request. Whereas

the August 27th letter requested a description or list of the services the legislator provides, the

9 Id.(emphasis added).10 Kenneth Lovett & Glenn Bain, Cuomo Believes Anti-corruption Commission Can Force Politicians to Give

Details on Outside Income, New York Daily News (Sept. 24, 2013), http://www.nydailynews.com/news/politics/ cuomo-commission-details-pols-incomes-article-1.1465539 (emphasis added).

11 Press Release from The Moreland Commission to Investigate Public Corruption, Statement From MorelandCommission Co-Chairs(Oct. 15, 2013).

12 Thomas Kaplan,Panel to Investigate State Democratic Party, New York Times (Oct. 15, 2013),http://www.nytimes.com/2013/10/16/nyregion/panel-to-investigate-state-democratic-party.html?_r=0 (emphasisadded).


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Subpoena demands any and all Documents and Communications relating to Senator

Nozzolios legal services, as well as Documents and Communications relating to Harris Beach

and its clients.

The Subpoena broadly defines Document, Communication, and Harris Beach as

follows:

Communication is defined in the broadest sense of the term, including, among otherthings, conversations, discussions and other transmittal of information or message,

whether transmitted in writing, orally, electronically or by any other means.13

Document is also defined in the broadest sense of the term and means each andevery writing of whatever nature, whether an original, a draft, or a copy, however

produced or reproduced, and each and every tangible thing from which information canbe processed or transcribed.14

The Subpoena notes specific examples of items that fall

within this definition, such as plans, records, charts, graphs, diaries, analyses,

instructions, voicemail, memoranda, notes, recordings (audio, visual or digital), creditcard charge slips, USB flash drives, diaries, studies, calendars, photographs (positive

prints and negatives), computer printouts and programs, microfilm and marginal

comments appearing on any Document.15

Harris Beach is broadly defined to include not just the firm itself, but also its attorneys,principals, executives, representatives, agents, affiliates, present or former parents,subsidiaries, related entities, directors, officers chair, partners, supervisors,

representatives, agents, contractors, or other persons acting on the firms behalf, its

respective predecessors or successors or any of the affiliates of the foregoing.16

In addition to requesting general information about Senator Nozzolios legal services,

compensation for the same, and a list of client names, the Subpoena seeks documents and

communications pertaining to more far-reaching topics about Senator Nozzolio, Harris Beach,

and the firms clients, including:

Documents and Communications relating to professional services provided by Senator

Nozzolio;17

13 Subpoena A(2).14

Id.at A(3).15

Id.16

Id.at A(1).17 Request No. 1, id. at C(1).


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Any contract, agreement, appointment or offer letter, letterhead, business card, attorneyprofile, and any Document, including correspondence, describing Senator Nozzolios

position within the firm;18

Records of Senator Nozzolios compensation, including in-kind benefits;19

Invoices, billable hour reports, timesheets, expense reports, reimbursement forms relatingto Senator Nozzolio;

20

Documents and Communications relating to the solicitation and engagement of any and

all Harris Beach clients by Senator Nozzolio;21

Clients advised or represented by Senator Nozzolio, and a general description of theservices provided to such clients;

22

Building access records and sign-in sheets reflecting Senator Nozzolios access to HarrisBeachs office;

23

Documents and Communications showing any relationship, business (including receipt offunding), litigation, lobbying or other contacts on Harris Beachs own behalf with, before

or against the State of New York or any of the States affiliated entities or bodies;24

Documents and Communications showing clients that have had any relationship, business(including receipt of funding), litigation, lobbying or other contacts with before or against

the State or any of its affiliated entities or bodies;25

Documents and Communications showing any clients that have engaged Harris Beach inconnection with requests for funding, lobbying activity, legislation or any other

legislative or political activity;26

Documents and Communications relating to monies, benefits, or campaign contributions

from Harris Beach, its members, or close relatives of its members, or any political

organization or committee associated with Harris Beach to elected state officials, political

candidates, political entities, campaigns, political action committees; political partyorganizations, or political clubs.

27

18

Request No. 1(a), id. at C(1)(a).19 Request No. 1(b), id. at C(1)(b).20 Request No. 1(c), id. at C(1)(c).21 Request No. 1(d), id. at C(1)(d).22 Request No. 1(e), id. at C(1)(e).23 Request No. 1(f), id. at C(1)(d).24 Request No. 2, id. at C(2).25 Request No. 3(a), id. at C(3)(a).26 Request No. 3(b), id. at C(3)(b).27 Request No. 4, id. at C(4).


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The Subpoena seeks this detailed and voluminous documentation for a period of nearly

four years, from January 1, 2010 to the present.28

The Subpoena claims that the materials

demanded, like office building sign-in sheets, are relevant and material to an i nvesti gationand

inquiry undertaken in the public interest.29

ARGUMENT

I. THE SUBPOENA SHOULD BE QUASHED BECAUSE IT EXCEEDS THE

COMMISSIONS STATUTORY AUTHORITY UNDER NEW YORK

EXECUTIVE LAW.

A. The Subpoena Constitutes an Unconstitutional Intrusion Into the Affairs of

the Legislature by the Executive Branch and Exceeds the Jurisdiction

Afforded to the Executive Branch by the Moreland Act.

The Subpoena is invalid because it was issued by a Commission created by Governor

Cuomo in excess of the his jurisdiction under the Moreland Act. The Commissions objective to

investigate the Legislature blatantly violates New Yorks separation of powers doctrine. Further,

the Subpoena itself improperly pursues indirectly through Harris Beach what the Commission is

forbidden from pursuing directly from Senator Nozzolio.

i. Governor Cuomo s Grant of Authority to the Commission to I nvestigateThe Legislature Exceeds the Governor s Jurisdiction Under the

M oreland A ct.

Coercive tactics aside, because the Commission was formed for an unlawful purposeto

allow the Executive Branch to investigate the Legislatureany such jurisdiction it seeks to

assert over Harris Beach directly and Senator Nozzolio indirectly is unlawful.

An administrative agency or body derives its authority or power to act from the express

dictates of the Legislature. See Suffolk County Builders Assn. v. County of Suffolk, 46 N.Y.2d

613, 620 (1979); see also In re New York State Superfund Coalition v. New York State Dept. Of

28 Id.at C.29 Subpoena, at 1 (emphasis added).


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Envtl. Conservation, 75 N.Y.2d 88, 92 (1989) (the delegation of authority to an agency or body

must strictly coincide with its enabling statute). The agency or body may not act in

contravention of the will of the Legislature or broaden what the applicable legislative scheme

permits. See Finger Lakes Racing Assn. v. New York State Racing & Wagering Bd., 45 N.Y.2d

471, 480 (1978); People ex rel. Spitzer v. Grasso, 42 A.D.3d 126, 136-39 (1st Dept 2007)

(noting the Legislatures plenary authority over its choice of goals and the methods to effectuate

them).

In Grasso, the First Department considered whether the Attorney General exceeded the

authority granted to him under Not-For-Profit Corporation Law (N-PCL) in pursuing non-

statutory claims against the former chairman and chief executive officer of the New York Stock

Exchange (NYSE), a not-for-profit corporation, for his allegedly excessive compensation.

See Grasso, 42 A.D.3d at 127-34. The court recognized that the N-PCL expressly confers

authority upon the Attorney General to bring certain causes of action against not-for-profit

directors or officers for excessive compensation, but that all claims contemplated entail a fault-

based determination of liability. 42 A.D.3d at 139-40. The court held that the Attorney General

lacked authority to bring the non-statutory claims because they would impose liability on Grasso

without regard to the fault-based requirements or would otherwise circumvent the substantive

standards for the liability of directors and officers established by the Legislature. 42 A.D.3d at

141.

TheGrassoCourt reasoned that [b]ecause the Legislature has not been completely silent

but has instead made express provision for civil remedy, neither the judiciary nor the executive

branch should attempt to fashion a different remedy, with broader [liability]. 42 A.D.3d at 141

(internal quotations omitted). Further, because the claims crafted by the Attorney General


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circumvented the core provisions of the N-PCL legislative scheme governing the duties and

liabilities of directors and officers of not-for-profit corporations, they were inconsistent with the

principle of separation of powers. 42 A.D.3d at 140.

Here, the Moreland Act permits investigations by the Governor into the affairs of any

department, board, bureau or commission of the state (N.Y. Exec. Law 6). By expressly

limiting the scope of the Act to the Executive Branch of the state, an irrefutable inference must

be drawn that the authority granted by the statute does not extend to permit investigations of the

Legislative Branch. See Raynor v. Landmark Chrysler, 18 N.Y.3d 48, 56 (2011) (Where a

statute describes the particular situations in which it is to apply and no qualifying exception is

added, an irrefutable inference must be drawn that what is omitted or not included was intended

to be omitted or excluded.) (citation omitted); Grasso, 42 A.D.3d at 135-36 (applying the

doctrine ofexpressio unius est exclusio alteriusto preclude the Attorney General from engaging

in the exercise of powers not thus expressly conferred by the N-PCL).

To interpret the Moreland Act as granting the Executive Branch jurisdiction to investigate

the Legislature would result in plain contravention of New Yorks separation of powers doctrine.

See Grasso, 42 A.D.3d at 140; E. Breuer, Moreland Act Investigations in New York: 1907-65

(1965) at pp. 29 (By now it should be apparent that the Moreland Act relates solely to State

administrative offices [and] has nothing to do with the . . . Legislature.), 32 (noting the state

legislature and judiciary branches are not subject to Moreland Act investigations).

ii. The Executive Order I mpermissibly Relies on E xecutive Law Section

63(8) As Authority to Pursue Indirectly, Through the Attorney General,

What the Governor is F orbidden Fr om Pursuing Directly Under the

Moreland Act.

Executive Order 106 invokes Executive Law Section 63(8) as alternate authority for the

Commissions investigation of the Legislature on the rationale the matters under investigation,


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i.e., those identified in Paragraph II of the Order, involve issues of public peace, public safety,

and public justice. Executive Order 106, Section I. However, the Governor may not invoke

Section 63(8) of the Executive Law to have the Attorney General investigate these matters when

Section 6 does not grant him that authority.

The State or its instrumentalities may not pursue indirectly what the State is prohibited

from pursing directly. See In re Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244, 257 (1998)

(reiterating the Court of Appeals expressed concern that public officials not be permitted to do

indirectly what they may not do directly); Tierney v. Cohen, 268 N.Y. 464 (1935) (What the

city cannot do directly, an agency or authority cannot do indirectly.); Grasso, 42 A.D.3d at 140

n.9 (the Attorney Generals position that he could assert non-statutory claims at odds with

legislative scheme call[ed] to mind the venerable prohibition on public officials doing indirectly

what they are forbidden from doing directly); In re of Attorney Gen. of State of N.Y. , 269

A.D.2d 1, 9 (1st Dept 2000) (States cannot be allowed to do indirectly what they cannot do

directly . . . .). State officials are thus forbidden from evading the purpose of a statute by

merely altering the nature of an arrangement to bring it technically outside the scope of the

requirements. In re Diamond Asphalt Corp., 92 N.Y.2d at 256-57 (holding that New York City

Commissioner of Department of Transportation could not extend coverage of the [public

bidding] statute into areas unintended by the Legislature by applying it to private interference

utility work).

Here, Governor Cuomo merely fashioned a procedural arrangement (i.e., an Attorney

General controlled investigation) as a means to bring the Commission technically outside the

restrictions imposed on a Governor-controlled investigation under the Moreland Act. Attorney

General Schneiderman himself admits that the whole point of the Governor getting [him]


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involved in this venture [is] so that they can go beyond the Executive Branch and look at matters

in the Legislature or the Judicial Branches . . . . Interview with Attorney General

Schneiderman, Capital Pressroom with Susan Arbetter (Nov. 12, 2013) (it does require a little

bit of thoughtfulness about how you get the Legislature at the end of the day to cooperate).30

That Governor Cuomo invoked Section 63(8) by directing the Attorney General to

conduct an investigation of political corruption in the name of the public interest does not

change the fact the Commission represents a Governor-directed investigation of the Legislature

in violation of the Moreland Act. See Grasso, 42 A.D.3d at 142 ([T]he authority to bring suit in

what the Attorney General perceives to be in the interest of the state cannot trump contrary

determinations about the public interest made by the Legislature.).

The Subpoena must be quashed so as to prohibit the Governors improper invocation of

Section 63(8) as a means to expand his jurisdiction under the Moreland Act and permit an

unconstitutional investigation of the Legislature by the Executive Branch. See Tze Chun Liao v.

New York State Banking Dept., 74 N.Y.2d 505, 510 (1989) (Banking Department could not deny

check casher license to owner of stationery store on grounds of destructive competition where

such ground was not included in criteria expressly enumerated by legislature for license

qualification); Grasso, 42 A.D.3d at 142 (noting that although executive branch officials may

bring suit to enforce the law, they do not enjoy the quintessentially legislative authority toalter

the law) (emphasis in original); Temp. State Comm'n on Living Costs & Econ., 80 Misc. 2d at

453-54 (quashing subpoena where facts indicated the investigation was an improper criminal

investigation, outside the commissions jurisdiction, and an abuse of process).

30 In his interview with Ms. Arbetter, Attorney General Schneiderman did not articulate what authority supported

his conclusion that as a legal matter, theres no question in my mind that The Moreland Commission has the

ability to to inquire into matters relating to the Legislature. Interview with Attorney General Schneiderman,

Capital Pressroom with Susan Arbetter (Nov. 12, 2013)


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i i i . The Subpoena Pursues Indirectly, Through Harris Beach, What the

Commission is Forbidden from Pursuing Directly, F rom Senator

Nozzolio.

That the Subpoena is not directed to Senator Nozzolio only confirms the Commission

recognizes the separation of powers and jurisdictional problems manifest in a Governor-directed

subpoena aimed at investigating a legislator.

By merely altering the recipient of the Subpoena so that it technically is not directed to a

legislator, the Commission is nonetheless encroaching on the independence of the Legislature.

See In re Diamond Asphalt Corp., 92 N.Y.2d at 257. The Commission could not directly

subpoena Senator Nozzolio for the documents concerning his professional services and outside

income. It is similarly forbidden from indirectly seeking those documents from Harris Beach.

See Grasso, 42 A.D.3d at 140 n.9;In re Office of Attorney Gen. of State of N.Y., 269 A.D.2d at 9-

11 (quashing subpoenas served by Attorney General in connection with investigation into

potential claims against manufacturers for violations of federal standards on ground that claims

were federally preempted by Clean Air Act and relying in part on the rationale that States

cannot be allowed to do indirectly what they cannot do directly).

For these reasons, as well as the facts and arguments asserted by the New York State

Senate,31

which are incorporated herein in their entirety, the Subpoena must be quashed.

B. The Subpoena was Improperly Issued to Implement Governor Cuomos

Coercive Strategy To Effect Legislative Reform.

From this Commissions beginning in July 2013, Governor Cuomos ultimate purpose for

the Commission was clear: it would serve as a tool to coerce the Legislature into passing the

package of reform legislation that it chose not to consider or enact. In a July 2, 2013 press

release announcing the formation of the Commission, the Governor stated: . . . I said I would

31 These facts and arguments, which appear in the Memorandum of Law submitted by the New York State Senate in

connection with its separate action challenging the Subpoena, are incorporated in their entirety herein.


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not accept a watered-down approach to cleaning up Albany and that the Legislature must either

pass this legislative package or I would empanel an investigative commission tasked with

accomplishing these same goals to achieve reform.

As this rhetoric of intimidation continues unabated, it has become all the more apparent

that the Commissions true purpose is to enforce new rules that the Governor hoped his proposed

legislation would have effected. For example, the Governors proposed legislation would not

have imposed heightened disclosure requirements specifically on legislators or their outside

employers, but the Subpoena seeks to do just that. Recent statements from the Governor reveal

that the Commissions purported policy-making impact is but a faade: Id still like them to

pass legislation because that's how you change things . . . . I don't really need another

commission. I don't really need a lot of additional prosecutors. Really I would like to make

systemic reform once and for all.32

Attorney General Schneidermans statements in a

November 12, 2013 interview with Susan Arbetter further support the conclusion that the

Commissions goal is to force legislative reform:

Obviously, you know, its a its a its a tricky game becauseyou want to investigate early and make sure all everything that

potentially could be the subject of reform . . . but you have to do it

in a way that with the understanding that ultimately the reforms

are gonna have to be passed by the Legislature and signed by theGovernor. . . . But as a matter of strategy and really just trying to

get the best reforms possible, it it does require a little bit of

thoughtfulness about how you get the Legislature at the end of theday to cooperate.

33

When the threats and actions are aside, and the Subpoenas intrusive and coercive nature

exposed, it is clear that the Commissions purpose is improper. Governor Cuomos use of the

32 Kenneth Lovett, Gov. Cuomo Expects Challenges To Anti-Corruption Commission Subpoenas, New York Daily

News (Oct. 21, 2013), http://www.nydailynews.com/blogs/dailypolitics/2013/10/gov-cuomo-expects-

challenges-to-anti-corruption-commission-subpoenas.33 Interview with Attorney General Schneiderman, Capital Pressroom with Susan Arbetter (Nov. 12, 2013).


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Commission as a coercive tactic to force legislative reform constitutes an unlawful exercise of

his delegated authority. See New York Statewide Coalition of Hispanic Chambers of Commerce

v. New York City Dept. of Health and Mental Hygiene, 110 A.D.3d 1, 16 (1st Dept 2013)

(holding that the New York City Board of Health overstepped the boundaries of its lawfully

delegated authority and violated the principle of separation of powers in promulgating the

Portion Cap Rule to curtail the consumption of soda drinks where Board acted in area where

legislature had tried but failed to act).

C. The Subpoena was Improperly Issued Prior to the Commissions

Promulgation of Rules and Procedure.

The Subpoena must be quashed because it was improperly issued before the Commission

promulgated procedures and rules, as it was required to under Executive Order 106.34

Pursuant

to Executive Order No. 106, Governor Cuomo granted the Commissioners who served as Deputy

Attorneys General the power to subpoena and to require the production of any books or papers

deemed relevant or material.35

These powers, however, were subject to two conditions

precedent: that (1) the Co-Chairpersons shall unanimously approve any subpoena prior to its

issuance; and (2) the Co-Chairpersons shall unanimously approve such procedures and rules as

they believe necessary to govern the exercise of the powers and authority given or granted to the

Commissioners. including rules designed to provide transparency while protecting the

integrity of the investigation and rights to privacy.36

Upon information and belief, the Co-

Chairs have never approved or published any such rules, and thus the Commission lacked the

34 Petitioner incorporates in this motion all of the arguments and facts asserted in New York State Senates

Complaint for a Declaratory Judgment and Memorandum of Law in Support of the Motion to Quash, in their

entirety35 Exec. Order No. 106, V.36 Id.


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statutory authority to issue the present Subpoena.37

See Nicholson v. State Comm'n on Judicial

Conduct, 68 A.D.2d 851, 852 (1st Dept 1979) (quashing subpoena, with respect to certain

requests, because the commission lacks jurisdiction, given the statutory conditions prerequisite

to the commissions investigation . . . have not been met.) Accordingly, the Commission had

no authority to issue the Subpoena and it is per seunenforceable.

II. THE SUBPOENA SHOULD BE QUASHED BECAUSE IT IS NOTHING MORE

THAN AN IMPERMISSIBLE FISHING EXPEDITION.

A. The Commission Has No Factual Predicate to Support the Subpoena.

As confirmed by the First Department, the issue of broad, sweeping subpoenas without a

preliminary showing of authority, relevancy and some basis for the inquisitional action might too

easily subject innocent parties to administrative abuses in violation of their rights to privacy and

due process, and would amount to a roving cause of inquiry that is both burdensome and

oppressive. Nicholson v. State Comm'n on Judicial Conduct, 67 A.D.2d 649, 650-51 (1st Dept

1979) (citations and quotation marks omitted).

To prevent such administrative abuse, New York courts require a factual basis to support

a non-judicial investigative subpoena. See, e.g., N.Y. Shredding Corp. v. NYC Dept of

Investigation, 184 Misc. 2d 174, 182 (Sup. Ct. N.Y. County 2000) (A motion to quash a

nonjudicial investigatory subpoena requires the issuer to come forward with a factual basis to

establish the relevancy of the items sought to the subject matter of the investigation.);Myerson,

33 N.Y.2d at 258; see also Harlem Teams for Self-Help, Inc. v. Dept of Investigation of City of

N.Y., 122 Misc. 2d 1066, 1070 (Sup. Ct. N.Y. County 1984) ([W]hen an office subpoena is

challenged, the burden is on the issuer to come forward with a factual basis which establishes

37 In its November 1, 2013 letter to the Commission, Harris Beach requested that the Commission provide those

procedures and rules to help reassure the public that the Commissions work would be conducted with the

transparency and integrity that Executive Order 106 promises. Sleight Aff., Exhibit D. The Commission

responded in its letter to Harris Beach, dated November 6, 2013, that it is not obliged to adopt procedure to

govern the exercise of its powers. Sleight Aff., Exhibit E.


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relevancy before a person can be compelled to turn over the subpoenaed materials) (internal

citations and quotations omitted). In issuing a subpoena, [i]t is simply not enough that the

proponent merely hopes or suspects that relevant information will develop. Future Tech.

Assocs. v. Special Commr of Investigation for N.Y.C. Sch. Dist., 115054/2010, 2011 N.Y. Misc.

LEXIS 1352, *13 (Sup. Ct. N.Y. County March 17, 2011). Simply put, New York courts will

not permit a non-judicial subpoena power to be used for the proverbial fishing expedition to

ascertain the existence of evidence. Brodsky v. N.Y. Yankees, 26 Misc. 3d 874, 887 (Sup. Ct.

Albany County 2009) (internal quotation marks omitted).

Yet a fishing expedition is exactly what the Commission seeks, given it issued the

Subpoena in the absence ofany evidence of wrongdoing by Harris Beach, whether in connection

with its association with Senator Nozzolio or otherwise. The sole basis upon which the

Commission relies is an unfounded inference drawn from Senator Nozzolios failure to accede to

the Commissions letter of August 27, 2013. In a September 20, 2013 statement on behalf of the

Commission, Commission Spokesperson Duffy declared: The New York State Legislature has

refused to turn over the information requested by the Moreland Commission revealing their

outside clients. As the old adage goes, if youve done nothing wrong, you have nothing to

hide. Such an empty factual basis does not entitle the Subpoena to judicial enforcement.38

See

Naples v. Whelan, 100 A.D.2d 743, 744 (4th Dept 1984),aff'd, 63 N.Y.2d 891 (1984) (granting

motion to quash office subpoena where respondent showed no more than a barren basis that

38 Both the Commissions August 27, 2013 letter to legislators and the Subpoena are each conspicuously void of

any rationale or factual predicate for the underlying investigation. The August 27, 2013 letter states that

legislators are permitted to earn outside income in addition to their legislative activities, and adds, without

citation to any case or authority, that [m]any of the issues that arise concerning public ethics involve the

confluence of public and private activity. SeeSleight Aff., Exhibit A. In fact, the Subpoena provides even less

explanation, stating only that the Commission believes the requested materials are relevant to its investigation,

and directing the recipient to paragraph II of Exec. Order No. 106 for a general statement of the subject of the

investigation. SeeSubpoena, at 1.


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could not justify enforcement of the subpoena); N.Y.C. Dep't of Investigation v. Passannante,

148 A.D.2d 101, 105 (1st Dept 1989) (quashing non-judicial investigatory subpoena where the

only detail offered as a factual basis was an assertion that the investigation was based on the

receipt of various and specific allegations, unidentified as to source or content).

Here, the Commission does not, and cannot, make the requisite factual showing that

would justify the issuance of this Subpoena. Neither the Subpoena, Exec. Order No. 106, nor the

statements by the Commissioners has ever described reports or allegations of political corruption

or wrongdoing by or on behalf of Harris Beach in connection with its association with Senator

Nozzolio. Highly-publicized and totally unrelated corruption charges involving other elected

officials prompted Governor Cuomo to propose his ethics legislation. When those efforts failed,

he formed the Commission.39

There is, however, no evidence or factual predicate that any of

those incidents involved behavior by a law firm, nor is there any link at all between such conduct

and either Senator Nozzolio or Harris Beach. See Nicholson, 67 A.D.2d 649 (quashing subpoena

requesting virtually all documents related to a judicial campaign where the alleged basis for the

inquiry was one complaint by a fundraiser).

B. The Admission That the Subpoena is Part of a Criminal Investigation

Subjects the Subpoena to a Heightened Evidentiary Threshold That the

Commission Cannot Satisfy.

Not only is the Commission unable to satisfy the requisite showing of relevancy and

materiality needed to enforce a civil investigatory subpoena, it is wholly unable to satisfy the

heightened showing necessary for a subpoena related to a criminal investigation. If this

39 See, e.g., Yancey Roy, Skelos: No witch hunt, Newsday (July 2, 2013), at A34 (Cuomo said the [Moreland

Commissions] inquiry is needed to restore trust in government after a string of indictments and convictions of

state legislators.). The Governor has also reinforced the fact that the majority of the Commissioners are

prosecutors. E.g., Glenn Bain and Kenneth Lovett, Cuomo Believes Anti-Corruption Commission Can Force

Politicians to Give Details on Outside Incomes, New York Daily News (Sept. 24, 2013),

http://www.nydailynews.com/news/politics/cuomo-commission-details-pols-incomes-article-1.1465539 (They

are prosecutors. When they say they have other avenues [to obtain the requisite information], it means they

have other avenues. . . . ).


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Subpoena and the others issued by the Commission are indeed part of a criminal investigation, as

Commission Co-Chairperson Fitzpatrick, the sitting District Attorney for Onondaga County,

described in a recent interview,40

a stronger showing from the Commission is required. See

Harlem Teams, 122 Misc. 2d at 1075-77 (where materials sought are in preparation for or in aid

of a criminal prosecution, the issuer must make a stronger requisite showing to defeat a motion

to quash). [W]here the purpose of the subpoena is not investigatory, but rather to obtain

evidence for use against a person the authorities already believe guilty of criminal activity, courts

must apply a heightened standard, closer or equal to probable cause. Id.at 1073.

Accordingly, to the extent that the Subpoena is more than a preliminary civil

investigation but is actually part of a criminal inquiry, the Commission cannot meet its

heightened standard of factual background, materiality and relevance required to be enforceable.

See Harlem Teams, 122 Misc. 2d at 1082 (quashing office subpoena probing criminality because

it could not satisfy the heightened requirement); Temp. State Comm'n on Living Costs & Econ. v.

Bergman, 80 Misc. 2d 448, 453-54 (Sup. Ct. N.Y. County 1975) (same).

Simply put, the Commission served the far-reaching and intrusive Subpoena on Harris

Beach solely because of the firms association with Senator Nozzolio. This Court should

accordingly quash the Subpoena.

C. The Information Demanded of Harris Beach Is Too Far-Reaching and Bears

Little to No Relevance to the Commissions Purported Purpose.

Not only is the Subpoena part of an improper fishing expedition, but its broad demands

bear little or no relevance to the Commissions purported purpose. To be valid, a strong factual

predicate must underlie the Subpoena. Myerson, 33 N.Y.2d at 258 (the showing of factual basis

40 When asked about the Commissions subpoenas in a radio interview on October 22, 2013, Fitzpatrick stated:

. . . I m a little reluctant to talk about subpoenas because this isand its hardpartially a criminal

investigation.


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that must be made is related to the breadth of the inquiry and the extent of the investigation

preceding the subpoena.) (citations omitted). New York courts require that that (1) the factual

basis is sufficient in light of the breadth of the subpoena; and (2) the material sought is relevant

and necessary to the investigating bodys purported purpose. See, e.g.,id. at 256-57;Naples, 100

A.D.2d at 744 (granting motion to quash office subpoena where respondent failed to establish a

sufficient factual basis and demonstrate that the material sought is relevant or material).

For example, Request No. 1 seeks, for a period of nearly four years, Documents and

Communications41

relating to Senator Nozzolios professional servicesi.e., every document

and communication that Harris Beach has relating to its association with Senator Nozzolio

during that period. Given this breadth, most (if not all) of the responsive documents and

communications will be mundane business-related documents and communications, neither

relevant nor material to the Commissions investigation into public corruption. In short, the

Subpoena is too far reaching and constitute[s] an improper fishing expedition on the

Commissions part. 2961 Realty Corp. v. Temp. Comm'n of Investigation of State of N.Y., 115

Misc. 2d 768, 772 (Sup. Ct. N.Y. County 1982) (refusing to enforce subpoenas request of

corporate minutes, tax returns and financial statements, on the grounds that the requested

material was too far-reaching and not relevant to investigation into alleged arson for profit

scheme); In re Office of Attorney Gen. of State of N.Y., 269 A.D.2d 1, 12-13 (1st Dept 2000)

(quashing subpoena issued by Attorney General where the materials sought were irrelevant to a

legitimate subject of inquiry).

The Subpoena goes well beyond the Senator Nozzolios professional service. It also

demands Documents and Communications sufficient to show any relationship, contact, business,

41 The Subpoena defines Documents and Communications in the broadest sense of the term[s]. See infra

Section II.B.


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funding, litigation, lobbying or other contacts with State entities, agencies, committees and

contacts that either Harris Beach, its members, and its clients may have had, even if such

contacts and/or activity were wholly unrelated to the members affiliation with the firm, or the

clients retention of an attorney at the firm.42

Moreover, any such contacts or relationships,

neither of which the Subpoena defines, may include interactions or communications with low-

level government employees who lack any discretion or authority that could render the contacts

attenuated relationship to the firm or Senator Nozzolio relevant or material in the

Commissions investigation of public corruption. Accord, Horn Constr. Co. v. Fraiman, 34

A.D.2d 131, 133-34 (1st Dept 1970), aff'd, 29 N.Y.2d 559 (1971) (quashing subpoena upon an

insufficient showing of necessity, materiality or relevance, where subpoena sought all records of

payments made on any and all jobs of construction company during a one-year period, regardless

of whether the records pertained to the job contract at issue).

Where an agency seeks to use its subpoena power in an attenuated manner, such that it

could subpoena anyone, or any agency that receives money from a private entity that receives

some money from the [government]as the Commission purports to do herea much greater

showing of a factual basis and relevancy is required. See Passannante, 148 A.D.2d at 105

(quashing non-judicial investigatory subpoena because much more was required by the agency to

warrant judicial enforcement of the broad-reaching subpoena; for under the agencys rationale, it

could subpoena not only the obvious entities receiving money from the City . . . but literally

thousands of health facilities, and child care agencies, who in turn do business with private

entities)

42 Request Nos. 2-3;see also infra, Section II.B.


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The Subpoena is not just far reaching, it is invasive. For example, Request No. 1(f)

demands building access records (electronic or otherwise) for Senator Nozzolio, sign-in sheets

for Senator Nozzolio, or Documents reflecting other means by which Senator Nozzolio gains

access to Harris Beachs premises. There is no plausible factual basis to assert that, solely

because it has an affiliation with a state legislator, a private law firms building sign-in sheets

and access are relevant to an inquiry into public corruption. And yet, recent remarks by

Commission Co-Chair William Fitzpatrick indicate the Commissions rationale for this request is

a suspicion that legislators with outside law practices are getting paid not for their legal services,

but rather, for some corrupt activity: [W]e simply want to know what you do f or these

retainers these massive, were not talking about $5,000 retainers like someone would get for a

small criminal case. Were talking about 6-figure retainers from people that as far as we know,

never go to court. And we would like to know fromth ose who ar e honest legislator s, wh o h ave

trial firms, what do you do to earn it. Putting aside a number of sheer absurdities in Co-

Chairman Fitzpatricks statementtrial firms being but onethe utter lack of relevance of

what time Senator Nozzolio might enter and exit Harris Beachs office underscores the baseless

nature of the Subpoena, and precisely why it must be quashed.

III. THE SUBPOENA MUST BE QUASHED BECAUSE IT NOT ONLY DEMANDS

PRIVILEGED AND CONFIDENTIAL MATERIAL, BUT IT IS OVERLY

BROAD, VAGUE, UNDULY BURDENSOME AND OPPRESSIVE.

Under New York law, a person or entity subject to a non-judicial subpoena may

challenge it in on multiple grounds, including: it seeks privileged or confidential material, or

irrelevant or immaterial documents; or it is overly broad, unduly burdensome or oppressive. See,

e.g., Lerner v. Lerner, 90 A.D.2d 452, 454 (1st Dept 1982); Myerson, 33 N.Y.2d at 257; Horn

Constr. Co., 34 A.D.2d at 133-34; Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337,

344-45 (1st Dept 1997).


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A. The Subpoena Demands Disclosure of Confidential, Privileged and

Proprietary Information.

The Subpoena should be quashed because it improperly demands highly confidential

material that in most instances will likely be protected by the attorney-client and other privileges.

Production by Harris Beach would violate ethical obligations to preserve client confidences,

privileged communications and work-product.

As the First Department has acknowledged, a lawyers ethical obligation to maintain the

confidences and secrets of clients and former clients is broader than the attorney-client privilege,

and exists without regard to the nature or source of the information or the fact that others share in

the knowledge. E.g.,Wise v. Consolidated Energy Co. of N.Y., 282 A.D.2d 335, 335 (1st Dept

2001) (internal citations and quotations omitted); see also Pavillion Agency, Inc. v. Spitzer, 9

Misc. 3d 626, 633-34 (Sup Ct. New York County 2005) (holding that even though subpoenas

issued by Attorney General to worker referral service as part of investigation of discrimination

within domestic worker placement industry were enforceable, Attorney General was not entitled

to disclosure of information which might reveal the identities of services clientele). InPavillion

Agency, the court held that to allow disclosure of the services clientele would open the

floodgates with respect to issues of client confidentiality and potential harassment and would

effectively promote government interference with the most personal kind of employment

relationships . . . . Pavillion Agency, Inc., 9 Misc. 3d at 633.

Rule 1.6 of New Yorks Rules of Professional Conduct prohibits lawyers from knowingly

revealing confidential information absent client consent. Rule 1.6 defines confidential

information as information gained during or relating to the representation of a client that: (a) is

protected by the attorney-client privilege; (b) is likely to be embarrassing or detrimental to the

client if disclosed; or (c) that the client has requested be kept confidential. Further, the Public


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Integrity Reform Act specifically exempts licensed professionals, including attorneys, from

disclosing the names of their clients. N.Y. Pub. Off. Law 73-a(8)(b)(v).

Here, many of the documents sought by the Subpoena are likely confidential

information within the meaning of Rule 1.6. For example:

Request No. 1 seeks Documents and Communications relating to professional servicesprovided by Senator Nozzolio, and the Subpoena expressly defines Communicationand Document in the broadest sense of the term[s]. In this respect, the Commission

demands every e-mail, document, oral communication or discussion, whether recorded or

not, between Senator Nozzolio and his clients, as well as all work product created for and

in the course of Senator Nozzolios legal representation of his clients. Much of thismaterial is likely privileged or confidential material. See, e.g., Cunningham & Kaming,

P.C. v. Nadjari, 53 A.D.2d 520, 520 (1st Dept 1976) (noting that a subpoena calling for

production of records of a law firm . . . pose[s] a threat to confidentiality of the attorney-client relationship).

Request No. 1(c) seeks invoices, billable hour reports and timesheets, many of whichdescribe specific tasks undertaken in the course of legal representation. Under New York

law, time records and billing statements that detail the services provided, conversations,

and conferences between counsel and others, thus revealing legal work that has beendone and/or trial strategy, are protected by the attorney-client privilege. DiBella v.

Hopkins, 403 F.3d 102, 120 (2d Cir. 2005).

Request No. 1(e) seeks material regarding Senator Nozzolios clients, including a generaldescription of the services provided to them. Request No. 3(b) seeks Documents and

Communications showing clients that have engaged Harris Beach in requests for funding,

lobbying activity, proposed, draft or enacted legislation, or any other legislative orpolitical activity. However, New York ethics rules instruct attorneys not to disclose the

identity of a client or the fact of retention if it could be embarrassing or detrimental to the

client, or where the client specifically requested such information be withheld. SeeN.Y.Eth. Op. 645, 1993 WL 560284 (May 3, 1993). For example, the fact that a client has

consulted a criminal defense lawyer or a divorce lawyer should be kept secret if it is

embarrassing or detrimental. Id.

Accordingly, complying with the Subpoena would require Harris Beach and its members

to breach its ethical obligation of confidentialityexactly what Rule 1.6 seeks to prevent. See

Pavillion Agency, Inc., 9 Misc. 3d at 633. For this reason, the Subpoena should be quashed. See,

e.g., Lerner, 90 A.D.2d at 452 (quashing portion of information subpoena served on counsel on


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basis of attorney-client privilege because what services [were] rendered or [will] be rendered by

counsel . . . exceeds the bounds on the scope of disclosure).43

Of course, the Commissions attempt to force attorney-legislators to breach their ethical

obligations is in contravention of the Commissions stated purpose of ensuring that New Yorks

government is meeting the highest ethical and legal standards.44

Forcing Harris Beach and

other firms to breach their duties of confidentiality is incompatible with such goals, particularly

where no one client or firm is the target of the Commissions investigation. See Straus v.

Ambinder, 61 A.D.3d 672 (2d Dept 2009) (affirming grant of protective order where

subpoenaed documents were protected by the attorney-client privilege); Mahoney v. Staffa, 184

A.D.2d 886, 887 (3d Dept 1992) (quashing subpoena with respect to certain material because

letters exchanged between Commission and attorneys were protected by the attorney-client

privilege and not subject to disclosure). Rather, the Commissions investigation, like the

Subpoena itself, is nothing but a fishing expeditionindeed one that impermissibly casts a

proverbial wide net into protected waters.

B. The Subpoena is Overbroad, Vague and Unduly Burdensome.

Subpoenas that are overbroad and unduly burdensome are unenforceable. White Bay

Enters. v. Newsday, Inc., 288 A.D.2d 211, 212 (2d Dept 2001) (quashing subpoenas that were

overly broad and unduly burdensome). Even if the Commission had the authority to issue the

Subpoenaand it does nota finding of statutory authority does not mean it has unlimited

43 At a minimum, any such material would have to be subject to a courts in camera inspection prior to

production. See Cunningham & Kaming v. Nadjari, 53 A.D.2d 520, 521-22 (1st Dept 1976) (upon motion to

quash subpoena, requiring that trial court inspect in camera materials regarding claims of privilege to avoid a

breach of confidentiality); Myerson v. Colonial Commercial Corp., 40 A.D.2d 972 (1st Dept 1972) (affirming

order to comply with subpoena, as modified, and reserving decision on issue of confidentiality, in that the

subpoena requested material protected by the attorney-client privilege, for trial courts examination of the

material).44 Thomas Kaplan, Cuomo Creates Special Commission to Investigate Corrupt Elected Officials, New York

Times (July 2, 2013), at A22.


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power to issue subpoenas and obtain voluminous business records. Brodsky, 26 Misc. 3d at

885, 891 (quashing overly broad subpoena issued by state legislative committee). Rather, [t]he

power to issue a subpoena compelling document production comes with the obligation to tailor

any document requests with specificity so that the recipient can reasonably ascertain what

documents to produce. Id. at 888. But here, the Commission has neglected this important

mandate to narrowly tailor its requests, resulting in an unenforceable Subpoena that is overly

broad, vague, and unduly burdensome.

First, the definitions in the Subpoena are so broad that when combined with other defined

terms, they create requests so far-reaching that compliance would be onerous and all-consuming.

For example, the Subpoena expressly defines Communication in the broadest sense of the

term, including conversations, discussions and other transmittal of information or message,

whether transmitted in writing, orally, electronically or by any other means.45

As such, the

Subpoena includes information transmitted by oral communications, which may never have been

previously recorded. Further, Harris Beach is defined as more than just a professional limited

liability company or attorneys presently employed by Harris Beach: rather, the Subpoena

defines Harris Beach to include any of its representatives, agents, affiliates, present or former

parents, subsidiaries, related entities, directors, officers, contractors, its respective predecessors

or successors or any of the affiliates of the foregoing.46

By combining these two definitions in

Request Nos. 2 and 4, the Subpoena purports to require the production of never transcribed oral

communications between or among persons no longer in Harris Beachs employment, and about

which Harris Beach may never have had any knowledge.

45 Subpoena A(2).46 Subpoena A(1).


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Second, the Subpoena is overly broad and vague in that it combines these broad

definitions into laundry-list requests that contain other confusing and undefined terms. For

example, the Subpoena seeks Documents and Communications relating to monies, benefits, or

campaign contributions from Harris Beach, its members, or close relatives of its members, or any

political organization or committee associated with Harris Beach, to New York state elected

officials, political candidates, political entities, political campaigns, political action committees,

political party organizations, or political clubs47

These requests are overly broad, vague and

ambiguous, given that the terms benefits, close relatives and political organization or

committee associated with Harris Beach are left undefined.

Third, the Subpoena is unduly burdensome in that seeks this vast amount of information

regardless any given relationship, activity or contribution may be wholly unrelated to Harris

Beach or undertaken in a personal capacity.48

Such minute particularization sought by the

Commission is completely unnecessary and bears little to no relation to the Commissions

purported purposes. See Fahy v. Comm'n to Investigate Allegations of Police Corruption &

Citys Anticorruption Procedures, 65 Misc. 2d 781, 785-86 (Sup. Ct. N.Y. County 1971), aff'd,

36 A.D.2d 802 (1st Dept 1971) (finding schedule A of the non-judicial subpoena to be

particularly oppressive, unnecessarily burdensome and, in several instances, totally irrelevant

where subpoena sought minute particularization about police officers personal and family

expenditures.) Indeed, as the court inFahyconcluded when it came to an examination of police

officers household expenses in an investigation into police corruption, while a large laundry

47 Request No. 4,id. at C(4) (emphasis added).48 For example, while Request No. 2 seeks material showing any relationship, business, funding, litigation or

contacts, on H arri s Beach s behalf , with the State, Requests No. 3(a) and 4 do not have the same limitation:

Request No. 3(a) seeks material about any relationships, business, funding, litigation or contacts that clients

have with the State (including in a personal capacity), and Request No. 4 seeks material related to campaign

contributions and benefits from Harris Beach, its members, and close relatives of its members have made

(including in a personal capacity) to political campaigns and elected officials. See Subpoena C(2), (3)(a),

(4).


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bill might be indicative of an aversion toward home laundering or of a penchant for cleanliness,

it would have no bearing on whether corruption exists. Id.

Fourth, the Subpoena is unduly burdensome because Senator Nozzolio has already

complied with his legal obligation to disclose certain information, and the Commission has no

factual basis to show that the materials requested are relevant to its investigation. In 2011, the

State Legislature enacted the Public Integrity Reform Act, which significantly expanded

legislators financial disclosure obligations, including disclosure of outside employment and

income. See N.Y. Pub. Off. Law Section 73-a.49 In particular, that Act requires disclosure of

certain clients of the legislator or his outside employers who have conducted business with,

received grants or contracts from, or were involved in proceedings before the State.50 However,

and particularly relevant here, the law specifically exempts licensed professionals, including

attorneys, from disclosing the names of their clients.51 The legislators must file their annual

statements of financial interest with the Joint Commission on Public Ethics, which then makes

the annual statements publicly available online.52 As described by the Governors press office,

the law establish[ed] unprecedented transparency . . . . and a strong independent monitor with

broad oversight of New York State Government.53 Senator Nozzolio submitted his 2012 annual

statement of financial disclosure by the May 15, 2013 deadline. He is in full compliance with his

49 Governors Press Office, Governor Cuomo Signs Ethics Reform Legislation (Aug. 15, 2011),http://www.governor.ny.gov/press/08152011EthicsReformLegislation.

50 The services rendered by the legislator must be in direct connection with the clients business with, contract orgrant from, or proceeding before the State, and the legislator must have received over $10,000 in fees for suchservices. N.Y. Pub. Off. Law 73-a(3).

51 Id.52 Governors Press Office, Governor Cuomo Signs Ethics Reform Legislation (Aug. 15, 2011),

http://www.governor.ny.gov/press/08152011EthicsReformLegislation.53 Id.


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disclosure obligations under existing law.54

Enforcement of the Subpoena will impose undue

burden by requiring Senator Nozzolio to disclose vast amounts of additional material, when he

has already fulfilled his legal and ethical disclosure obligations under the law.

C. The Subpoena Is Oppressive.

The Subpoena should be quashed because it is plainly oppressive. The law encourages

clients to communicate openly with their attorneys on the assurance those communications will

remain protected.55

Notwithstanding this, the Subpoena seeks to compel Harris Beach to breach

that duty of confidentiality, not just with regard to one specific client, but to many clients. In this

respect, the Subpoena brings with it a real risk of disturbing the relationship between Harris

Beach and its clients, and putting [Harris Beach] at a competitive disadvantage. Reuters, 231

A.D.2d at 344-45.

Given the lack of relevance of the documents requested to the perceived, the voluminous

material that would need to be produced under the Subpoenas excessively broad scope, and the

threats by the Commission and the Governor when the legislators proposed a more targeted

production of information, it is clear that this Subpoena is, and was intended to be, an oppressive

and punitive investigative tool designed to interfere with the state legislators outside

employment by placing their employers in an untenable position. See Reuters, 231 A.D.2d at

344-45 (quashing non-judicial subpoena on the grounds that it was patently overbroad,

burdensome, and oppressive and could harm the business of the recipient).

54 As the State Senate and Assembly noted in a joint letter to the Commission on September 20, 2013, the

legislators annual statements of financial disclosure are publicly available on JCOPEs website. See

http://www.jcope.ny.gov/elected%20officials/fdselectedofficials.html.55

See, e.g., Comment 2 to Rule 1.6 of New York Rules of Professional Conduct (the purpose for confidentiality is

to encourage clients to communicate fully and frankly with a lawyer, even to embarrassing or legally

damaging subject matter. The lawyer needs this information to represent the client effectively.)


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* * *

For the reasons described above, Petitioner respectfully requests that the Court quash the

Subpoena in its entirety, and issue a protective order confirming that Harris Beach need not

respond to it.

Dated Pittsford, New York

November 21, 2013

HARRIS BEACH PLLC

By:/s/Karl J. SleightKarl J. Sleight

Philip G. Spellane

James P. Nonkes

Allison A. Bosworth99 Garnsey Road

Pittsford, New York 14534

Telephone: (585) 419-8800Fax: (585) 419-8811