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Gov, Cuomo cite privilege to duck Senate scrutiny

Gov, Cuomo cite privilege to duck Senate scrutiny

The leader in polls to become New York's next U.S. senator has enjoyed the enviable political position of never saying he sought the job, avoiding a potential defeat. But legal experts question the claim of privilege that Attorney General Andrew Cuomo and Gov. David Paterson have used repeatedly to refuse to tell New Yorkers if Cuomo wants the job.
Paterson and Cuomo continue to cite the attorney-client privilege to deflect questions about whether Cuomo wants the job that only Paterson can fill. That has kept scrutiny mostly focused on other candidates, primarily Caroline Kennedy, whose popularity has waned under the increased attention to the point that Cuomo is now well ahead of her in polls released this week.
The two are among a group of people vying to replace Hillary Rodham Clinton when she is confirmed as Barack Obama's secretary of state. That could happen as early as Wednesday.
"The attorney general and my relationship is really a lawyer-client privilege," Paterson told reporters Wednesday when again asked if Cuomo was interviewed for the seat. Paterson has already taken heat from the state's open government agency and good-government advocates for a secretive selection process that hasn't identified applicants or made public the background form he had each complete.
Cuomo, whose office represents the executive branch, has similarly refused to say if he has shown any interest in the job, denying reports that his supporters have been lobbying hard behind the scenes for the Democrat.
In December, Cuomo told reporters: "The conversations between the governor and myself are private. Why? Because I'm the attorney general, because we have an attorney-client relationship."
Speaking generally, law professor Lance Cole says attorney-client privilege in government goes to the office, not the individuals. For attorney-client privilege to be in effect, the discussions would usually have to be about legal issues and legal advice on an issue.
And if that was the case, a conflict of interest could exist if a lawyer providing advice on job selection is among those seeking the post, said Cole, a professor at The Dickinson School of Law at Pennsylvania State University. He is a former attorney for Democrats on the Senate Whitewater Committee and a consultant to the 9/11 commission.
"Just because an attorney talks to a client, it's not privileged," Cole said. "The first question is whether attorney-client privilege pertains at all, because it doesn't sound like any legal advice is being offered."
"It sounds like someone is trying to cloak within attorney-client privilege a conversation that isn't covered," he said.
Cuomo declined to comment Thursday.
"I know how someone might not want their name out there because they might not get it, but the public's right to know trumps all of that," said Blair Horner of the New York Public Interest Research Group. "The governor is all wrong about this refusal to release information. It's not his senator. It's the public's senator."
When told specifically of Paterson's comments and the refusal of Paterson and Cuomo to comment on whether they discussed Cuomo's interest in the Senate job, Cole said: "One could say there's a legitimate issue as to whether discussions on this topic are covered under attorney-client privilege."
Under law, the privilege protects a client's comments _ not the attorney's _ so that the client may fully inform his lawyer of facts. A client may also waive the privilege.
But in government, it's common for officials to assume everything they say to their lawyer can remain a secret, said Patricia E. Salkin, associate dean and director of the Government Law Center of Albany Law School.
"We get that from TV, but it's not true," said Salkin, a consultant on government ethics who served on Cuomo's transition team for attorney general.
Attorney-client privilege is "usually about litigation, it's usually about representation of your client, and that does not appear to be the case here," she said, when asked about the use of attorney-client privilege by Cuomo and Paterson.
"It's only if the attorney general is giving the governor legal advice on the appointment process."
And if that were happening, that could raise questions of conflicts of interest, she agreed.
Paterson spokeswoman Marissa Shorenstein said Cuomo isn't providing legal advice to the governor on the Senate selection, but their conversations are kept confidential either under attorney-client privilege or as a matter of practice.


Updated : 2021-07-26 13:39 GMT+08:00