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Could the Cuomo Investigation Taint Davis Polk?

May 27, 2021, 7:02 PM

Davis Polk & Wardwell is one of those firms that seems to walk on water. It has a pedigree (170 years old and packed with legal luminaries), success ($6.35 million in profit per partner) and panache (its whip-smart lawyers are reputed to be stylish too). With all that magic swirling around it, why in the world does it keep on wading into matters that might tarnish its reputation?

It was only about a year and a half ago that Davis Polk got criticized for its investigation of L Brands, the parent company of Victoria’s Secret (more on that later). And now it’s getting grief for its role investigating New York Governor Andrew Cuomo.

In March, the New York State Assembly—which is perceived to be dominated by Cuomo loyalists—picked Davis Polk to look into charges against Cuomo, including sexual harassment allegations made by multiple women, who’ve accused the governor of varying degrees of inappropriate behavior.

Two weeks before Davis Polk’s hiring, New York Attorney General Letitia James, a possible challenger to Cuomo for governor, had launched an investigation into Cuomo’s behavior, retaining Cleary Gottlieb Steen & Hamilton and gender discrimination lawyer Anne Clark, a partner at Vladeck, Raskin & Clark. Recently, the Attorney General issued subpoenas to four of Cuomo’s accusers to testify under oath.

If you think two overlapping investigations by two extremely pricey law firms seem like a waste of taxpayers’ money: Bingo! As a New Yorker, I barely blink at inefficiency and profligacy . But as a longtime observer of Big Law, I’m scratching my head as to why a prominent firm like Davis Polk would want to get into this mess.

What’s raising eyebrows are Davis Polk’s ties to Cuomo and how that might affect its ability to deliver an objective report. The dots that connect start with Dennis Glazer, a retired partner of the firm who owes two of his appointments to the governor: his chair on one of New York State’s universities and his membership on the state’s influential casino siting board.

Then there’s Glazer’s wife Janet DiFiore, the chief judge of the New York State Court of Appeals, also a Cuomo appointee, who will be sitting in judgment of the governor should he be impeached then face trial in the New York Senate. Another inconvenient fact: In early March, Cuomo tried to get DiFiore to lead the attorney general’s probe. Though Cuomo didn’t get his wish, DeFiore was criticized for not immediately rejecting the suggestion.

Naturally, some of Cuomo’s accusers are jumping on these connections and crying foul. Debra Katz, the lawyer for Cuomo accuser Charlotte Bennett, called it “an unacceptable conflict of interest” in March when Davis Polk’s retention was first announced. Lindsay Boylan, a Cuomo accuser, tweeted: “What would be the point of survivors talking to investigators of your sham investigation @CarlHeastie? I am in conversation with other women who have no interest in your corrupt, cynical ‘investigation.’ Hard pass.”

And it’s not just Cuomo’s accusers who have a beef with Davis Polk. According to CNN, the firm’s connection to Cuomo “roiled some Democratic lawmakers and outside advocates.” CNN also notes that the Davis Polk team lacks experience representing victims of sexual harassment, while the Attorney General’s legal team includes Anne Clark, a prominent women’s rights advocate.

So why does Davis Polk need this at all? Is the upside of such a high profile investigation worth the second guessing and potential taint?

“It could be an important pre-existing relationship or because it’s a business generator,” says Rebecca Boon, a securities partner at Bernstein Litowitz Berger & Grossmann who’s garnered recognition in the shareholder/MeToo litigation arena, including leading a major shareholder suit against Fox News. “It used to be that Debevoise was the go-to firm for this type of work, but now many other firms are going into it.”

This raises an interesting question: Aren’t there a plethora of eminent firms in New York that could conduct this high profile investigation without raising the same degree of possible bias?

(I’ve asked Davis Polk, Dennis Glazer and Debra Katz for comment but have not heard back from them. The New York A.G.'s office declined to comment.)

Before I go further, let me make one thing clear: No one is suggesting that Davis Polk has done anything wrong. Moreover, its hiring is by all accounts legal. “I don’t believe that [conflict] rules prevent the firm from accepting the Assembly’s matter even if Glazer had urged it to do so,” says Stephen Gillers, professor at New York University School of Law. “The Assembly knows who Glazer is and can make up its own mind about whether to trust the firm’s independence.”

But to say that Davis Polk can accept an assignment doesn’t mean it’s smart to do so. The firm should have learned that lesson from its investigation into Leslie Wexner, the former CEO of L Brands, and his relationship with pedophile Jeffrey Epstein. In that situation, the firm was the company’s outside counsel. Somewhat similar to the Cuomo/Glazer scenario, Wexner was close to another former Davis Polk partner, Dennis Hersch, who was his business adviser. Plus, Wexner’s wife Abigail was a former associate at the firm.

An earlier Davis Polk investigation into L Brands was also slammed. A shareholder filed suit last year “suggested that Davis Polk was too close to L Brands to be truly independent,” reports The New York Times. And what the firm ultimately delivered to L Brand’s board near the end of 2020 was panned by some members. The upshot was that Wachtell, Lipton, Rosen & Katz was later hired to conduct a separate investigation of the L Brands/Wexler/Epstein connection. Let’s put it this way: Davis Polk’s L Brand investigation wasn’t its finest moment and this Cuomo venture runs the same risk.

“There are often problems with these internal investigations because things are whitewashed,” says Richard Painter, who served as chief White House ethics lawyer in the George W. Bush administration. To ensure that the Cuomo investigation won’t be tainted, “it would be helpful if [former Davis Polk partner Glazer] made a declaration before the investigation takes place that he will have nothing to do with it,” says Painter. “It’s important that he’d be walled off.” (A source at the Davis Polk confirms that Glazer performs no work for Davis Polk. New York 1 reports that he still gets a “hefty” pension from the firm.)

Considering that the investigation involves the messy world of New York politics, what are the chances of keeping things neat and tidy? And it’s worth noting that Cuomo himself is not known for keeping boundaries. For example, it’s come out that his brother Chris, the CNN anchor, participated in calls advising the governor on handling the investigations, in violation of journalistic ethics.

So what happens now? What if the two dueling investigations come back with different conclusions—let’s say, Cleary Gottlieb comes down hard on Cuomo while Davis Polk takes a much softer tone? “In that case, it will get nasty,” says ethics expert Painter. “If you don’t want to play in politics, get out.”

All things considered, wouldn’t it be easier and cleaner for another firm to tackle this mess?

To contact the columnist: Vivia Chen in New York at vchen@bloombergindustry.com

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