Lawyer as lobbyist

By Peter H. Geraghty
Director, ETHICSearch

A lawyer works in a small firm that concentrates in legislative practice. He is considering acting as a lobbyist for some of his clients.

Can the lawyer act as a lobbyist? Can the lawyer engage the services of a non-lawyer lobbyist to work for the firm?

Discussion

Ethical issues that can confront a lawyer when he either acts as a lobbyist or engages the services of a lobbyist to work in his law firm include the applicability of Rules 5.7 Law Related Services and 3.9 Advocate in Nonadjudicative Proceedings. Recent case law raises questions as to whether the attorney client privilege applies to communications between the lawyer lobbyist and his client, and some state lobbying statutes have compelled the courts to consider the conflicts that can arise between these statutes’ disclosure requirements and the lawyer’s duties of confidentiality.

For a general overview of the ethics issues implicated in the lawyer-lobbyist scenario, See chapter 27 of the 2005 edition of The Lobbying Manual published by the ABA Section of Administrative Law and Regulatory Practice. This chapter discusses a variety of ethics issues that relate to the lawyer lobbyist that include Rule 1.1 Competence, Rule 1.3 Diligence and Rule 1.7 Conflicts of Interest: Concurrent Clients and the aforementioned Rules 3.9 Advocate in Nonadjudicative Proceedings and 5.7 Law Related Services.

Lobbying as a law related service

The authors of The Lobbying Manual note that “legislative lobbying” is listed as an example of a law related service under paragraph 9 of the Comment to Rule 5.7 so that

For the lawyer-lobbyist who practices in a traditional law firm setting and provides lobbying services to his clients in that setting, it seems clear that the Model Rules would apply to that lawyer’s lobbying activities. This analysis would apply to many attorneys who practice and lobby in state capitals. The lawyer often provides those “law related services” in circumstances that are not distinct from the lawyer’s provision of legal services, and a client could reasonably mistake the lobbying activities for legal services.

Under the terms of Rule 5.7, the Rules of Professional Conduct will apply to the lawyer when acting as a lobbyist unless the lawyer provides the services in an entity that is distinct from the lawyer’s law practice and the lawyer takes reasonable measures to ensure that the person who obtains the services understands that the services provided are not legal services and that the traditional protections of the lawyer-client relationship do not exist.

The authors also note that for those jurisdictions that have not adopted a version of Rule 5.7, it is very important to check the local rules of professional conduct in order to determine if they are applicable to the non-practicing lawyer lobbyist. For example, the terminology section of the District of Columbia Rules define “matter” as including “lobbying activities.” For further information on law related services, see the article entitled, Would You Like a Financial Plan With That that appeared in the February 2006 YourABA electronic newsletter.

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State bar ethics opinions

There have been a number of state bar opinions issued on a variety of topics that may confront the lawyer–lobbyist. These include whether a lawyer may provide services as a lobbyist in partnership with non-lawyer lobbyists. See, e.g. Maine Bar Opinion 158 (1997) (a lawyer may form a partnership with a lobbyist firm to provide lobbying services so long as the lawyer assumes inactive status on the roll of lawyers, and does not hold himself out as a lawyer), Maryland Opinion 95-25 (a lawyer may not form a partnership with a lobbyist of any of the activities consist of the practice of law).

Other opinions address whether a lawyer may act as a lobbyist when a member of the firm is a member of the state legislature. Four state bar opinions state that a lawyer may not do so. See, Iowa Opinion 96-20 (1996), South Dakota Opinion 90-4 (1990) (links to South Dakota ethics opinions are available here) and Virginia Opinion 1278 (1989). Michigan Opinion RI-187 (1994) states that a law firm employing a non-lawyer lobbyist must treat information the lobbyist learns from his “clients” as confidential, whether or not the firm undertakes any of their legal representation.

Older ABA opinions have been issued on this general topic. See, ABA Formal Opinion 306 (1962) Wherever Under Constitutional Or Statutory Provisions Or Legislative Rules Consent Has Been Given, Expressly Or By Necessary Implication, A Lawyer May Properly Engage In Lobbying On Behalf Of A Client Before A Legislative Committee Or Otherwise Where A Member Of His Firm Or Associate Is A Member Of The Legislature, which modified an earlier ABA Formal Opinion 296. (1959).

Some of these opinions also touch on lobbying as a law related service. See, e.g. Virginia Opinion 1819 (2005) (rules of professional conduct may apply to a lawyer who does not have a law practice when/if he does not make it clear to the customer that he is not receiving legal services.)

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State lobbying statutes and client confidentiality

An issue that state bar opinions have not clearly addressed is how lawyers should handle the reporting and disclosure requirements under the various federal and state lobbying statutes to the extent that they conflict with the lawyer’s duties of confidentiality under Rule 1.6 Confidentiality of Information. Pennsylvania has struggled with this issue. In 2002, the Pennsylvania Supreme Court struck down a Pennsylvania lobbying statute, holding that it encroached on its authority to regulate lawyers. See, Gmerek V. State Ethics Commission, 569 Pa 579, 807 A2d 812 (2002). The Pennsylvania legislature subsequently adopted a new lobbying statute and the Pennsylvania Supreme Court adopted a new Rule of Professional Conduct 1.19, Lawyer Acting as Lobbyist, that specifically addresses the confidentiality issue:

Rule 1.19 Lawyer acting as Lobbyist

(a) A lawyer acting as a lobbyist, as defined in any statute or in any regulation passed or adopted by either house of the legislature, or in any regulation promulgated by the Executive Branch or any agency of the Commonwealth of Pennsylvania shall comply with all regulation, disclosure or other requirements of said statute, resolution or regulation which are consistent with the Rules of Professional Conduct.

(b) Any disclosure of information relating to the representation of a client made by the lawyer lobbyist in order to comply with such a statute, resolution or regulation is a disclosure explicitly authorized to carry out the representation and does not violate Rule 1.6.

Paragraph 26 of the Comment to Rule 1.6 of the Pennsylvania Rules states:

..Lobbyists

A lawyer who acts as a lobbyist on behalf of a client may disclose information relating to the representation in order to comply with any legal obligation imposed on the lawyer-lobbyist by the legislature, the executive branch or the Commonwealth which are consistent with the Rules of Professional Conduct. Such disclosure is explicitly authorized to carry out the representation. The Disciplinary Board of the Supreme Court shall retain jurisdiction over any violation of this Rule.

A memorandum on the Philadelphia Bar Association’s Web site by Lawrence J. Beaser discussing the new Pennsylvania lobbying statute and Rule 1.19 is located here:

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Case law

Case law in this area focuses on two issues; the extent to which the attorney-client privilege applies to information imparted to the lawyer by his client when the lawyer is acting as a lobbyist, and whether the various lobbying statutes that have been enacted in the various states are void with regard to lawyers because they encroach upon the state Supreme Court’s inherent authority to regulate the legal profession.

A) Applicability of the attorney-client
privilege when lawyer acts as lobbyist

In U.S. v. Grand Jury Subpoenas, 179 F. Supp. 2nd 270 (2001), which involved lobbying efforts surrounding the Marc Rich pardon matter, the U.S. District Court for the Southern District of New York stated:

The fact that a lawyer occasionally acts as a lobbyist does not preclude the lawyer from acting as a lawyer and having privileged communications with a client who is seeking legal advice. Many lawyers “have expertise in special areas of knowledge that enhances their skill as lawyers, and that does not diminish their legal status.” Montgomery Co. v. Microvote Corp., 175 F.3d 296, 302 (3d Cir.1999).

On the other hand, “[i]f a lawyer happens to act as a lobbyist, matters conveyed to the attorney for the purpose of having the attorney fulfill the lobbyist role do not become privileged by virtue of the fact that the lobbyist has a law degree or may under other circumstances give legal advice to the client, including advice on matters that may also be the subject of the lobbying efforts.” Edna Selan Epstein, The Attorney-Client Privilege & the Work Product Doctrine 239 (2001). For example, “[s]ummaries of legislative meetings, progress reports, and general updates on lobbying activities do not constitute legal advice and, therefore, are not protected by the work-product immunity.” P. & B. Marina v. Logrande, 136 F.R.D. 50, 59 (E.D.N.Y.1991), aff'd mem., 983 F.2d 1047 (2d Cir.1992).

Other cases, while acknowledging that the privilege generally does not apply to lobbying related matters, look to the specific facts of the case in order to determine if the privilege does apply. See, e.g. Black v. Southwestern Water Conservation Dist., 74 P3d 462 (2003):

…Three memorandums from water conservation district constituted legal advice rather than lobbying activities, and therefore, were protected by the attorney-client privilege; memoranda represented legal advice regarding negotiations and lobbying efforts for water district project and were not communications made to a public official for the purpose of influencing legislation.

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B) Lobbying statutes disclosure
requirements; regulation of the bar

Florida Association of Professional Lobbyists, Inc. v. Division of Legislative Services, 431 F.Supp 2d 1228 (2006) and Gmerek v. State Ethics Commission, 807 A2d 812 (2002) discussed whether lobbying statutes that impose certain disclosure requirements on lobbyists encroach upon the state supreme court’s authority to regulate the practice of law. Both of these cases provide an interesting discussion of the definition of the practice of law in the lobbying context. In Florida Association of Professional Lobbyists, Inc., the court found that the legislature did not overstep its authority:

…Plaintiffs contend that for lawyers who are lobbyists, lobbying takes the form of practicing law. Lawyer lobbyists provide legal analysis of legislation to their clients, draft legislation, determine the procedures to pass legislation, and appear before legislative committees and executive agencies to analyze the legislation. Plaintiffs argue that by imposing compensation disclosure requirements upon lawyer lobbyists, the Act regulates the practice of law, in violation of the exclusive constitutional authority of the Florida Supreme Court to regulate the practice of law.

The Florida Constitution, Article V, section 15, vests the Florida Supreme Court with “exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.” The Florida Supreme Court has rejected the argument that its exclusive jurisdiction precludes the legislative branch from enacting laws “to punish conduct deemed harmful to the public welfare if the conduct also falls within the purview of [the] Court's authority to discipline lawyers for violating the Code of Professional Responsibility in the course of their practice of law.” Pace v. State, 368 So.2d 340, 345 (Fla.1979). The Court recognized the legislature's authority to enact a law “that affects the legal profession just as it can with regard to other occupations and professions. ” Id.

Although the Act, by imposing obligations on lawyer lobbyists, may have an impact on the practice of law, it does not appear that the legislature overstepped its authority as recognized in Pace. Plaintiffs have failed to demonstrate a substantial likelihood of success on the merits on this issue; nor have they shown that they are entitled to judgment as a matter of law.

Compare Gmerek v. State Ethics Commission, 807 A2d 812 (2002). In this case, the Pennsylvania Supreme Court invalidated a state statute on the grounds that it impermissibly regulated the conduct of lawyers, and that it could require lawyers to make disclosures about their clients that would violate Rule 1.6:

…Appellants argue, however, that because the activities regulated by the Act may be undertaken by individuals other than attorneys, the Act cannot be viewed as regulating the “practice of law.” They also point out that the Act explicitly states that it is directed at “lobbying” activities and specifically disavowals that it is in any way intended to regulate any other professional activities. Finally, they submit that the Act does not regulate the “practice of law” because the very definition of “lobbying” contained in the Act does not encompass the exercise of legal judgment. These arguments, while tantalizing at first blush, are not persuasive.

As noted previously, the Act defines lobbying as “an effort to influence legislative or administrative action” including not only the providing of material gifts, but also any direct or indirect communication. 65 Pa.C.S. § 1303. “Legislative action” involves a myriad of actions by state officials or employees in regard to the preparation and consideration of enactments. Id. “Administrative action” includes an agency's proposal, consideration, promulgation or rescission of a regulation; the development and/or modification of a guideline, statement or policy; and the approval or rejection of a regulation. Id. “Direct communication” is defined as an effort, whether written or oral, made by a lobbyist or principal that is directed to a state official or employee for the purpose of influencing legislation. Id. “Indirect communication” is any effort to encourage others to take action to directly influence legislative action or administrative action. Id. This definition of “lobbying,” under the facts of this case, clearly encompasses the practice of law as previously defined by this Court….

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The Concurring opinion focused on the Pennsylvania statute’s potential for requiring the lawyer to disclose confidential information in violation of Rule 1.6.:

…Subject to certain exceptions not relevant to our inquiry today, one of the highest duties of an attorney is to maintain the confidentiality of information that is disclosed in the context of the attorney/client relationship. See Pa.R.P.C. 1.6 (“A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation....”). This rule of confidentiality is not limited to privileged information, but extends “to all information relating to the representation, whatever its source.” Id. cmt. The Act, in its simplicity, attempts to respect this core duty-but unfortunately, by its very simplicity, I believe the Act necessarily encompasses a wide range of scenarios in lawyer-client interaction that will inevitably intrude upon the confidentiality Rule.

Especially egregious in this regard are sections 1305(b)(4), 1305(b)(6), and 1305(c) of the Act, which concern quarterly expense reports that must be filed with the State Ethics Commission. Section 1305(b)(4) requires a lobbyist “to sign the reports submitted by each principal represented to attest to the validity and accuracy to the best of the lobbyist's knowledge.” Section 1305(b)(6) mandates that a lobbyist “submit a separate report if, during the reporting period, the lobbyist engaged in lobbying which was not contained in the reports filed by the principal or principals represented by the lobbyist.” Section 1305(c) requires registrants to retain all documents necessary to substantiate the expense reports for a period of four years, and to allow inspection of the documents upon request by the Attorney General or the Commission.

When the lobbyist is an attorney who maintains an attorney/client relationship with his principal, these reporting provisions create the very real specter of an attorney being required to inform against his client, and in a fashion that may even lead to criminal charges against the client since such charges are included in the Act as sanctions. In that respect, the Act inevitably and directly intrudes upon the attorney/client relationship, including the lawyer's duty to maintain confidentiality. It requires an attorney lobbyist to choose between his duty to his client, duly imposed, recognized and enforced by this Court, and his duty under the Act, including a remarkable requirement that, upon a mere “request,” the attorney turn over what would probably include confidential information gleaned from a client. Indeed, the Act would require an attorney to do this in the situation where the principal deigns to withhold the subject information. The principal may then be subject to criminal sanctions arising solely through information disclosed by his attorney, and obtained in the course of the attorney/client relationship. See 65 Pa.C.S. § 1309(e) (individual who intentionally fails to register or file report commits misdemeanor of second degree; registrant who files report with knowledge that it contains false statement commits misdemeanor of second degree; other violations of Act amount to misdemeanors of third degree). This legislation creates the very real prospect of forcing an attorney to disclose information that may implicate his client in a lobbying Act violation that may result in conviction and criminal sanction.

Treatises, law review articles

For further information on the ethical issues applicable to the lawyer-lobbyist, See Kenneth Burton, The District Of Columbia Conflict Of Interest Rules And Lawyer-Lobbyists: A Troubled Marriage, 8 Geo J Legal ethics 961 (1995), William R. Bruce, Professional Responsibilities Of Lobbyists, 23 Memphis St. U. L. Rev. 547, 547 (1993).

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