For Lawyers Who Lobby: Ethics and Unauthorized Practice Considerations Thomas B. Mason, Harris, Wiltshire & Grannis LLP Andrew Siff, Siff & Associates.

For Lawyers Who Lobby: Ethics and Unauthorized Practice

Considerations

Thomas B. Mason, Harris, Wiltshire & Grannis LLP

Andrew Siff, Siff & Associates PLLC

February 26, 2015D.C. Bar CLE Program

Lobbying and Lawyers

Outline• What is lobbying? • Why is this all so confusing? • Special conflict rules for lobbying engagements.• D.C. Rule 5.7: what lobbying engagements by

lawyers can be exempted from the D.C. Rules and the disclosures required for the exemption.

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Outline (cont’d)• Some lobbying scenarios:

– The consulting/lobbying firm with no lawyers; – The consulting/lobbying firm with lawyers; – The non-lawyer at a D.C. law firm; – The D.C. lawyer at a D.C. law firm; and – The non-D.C. admitted lawyer at a D.C. law

firm.

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What is lobbying? • Legislative lobbying: “activities to influence,

through contacts with members of Congress and their staffs, the passage or defeat of legislation, as well as other congressional actions such as ratification of treaties or confirmation of nominees.”

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What is lobbying (cont’d)? • Legislative lobbying includes “preparation and

planning activities, research and other background work in support of such contacts, and development of legislative strategy and tactics.” UPL 19-07.

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What is lobbying (cont’d)?• Executive branch lobbying: “contacts . . . with

Executive branch officials . . . designed to influence such officials in matters of public policy, including the formulation, modification or adoption of policies, programs and rules implementing legislation. . . .”

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What is lobbying (cont’d)?• “[S]uch activities may include the preparation of

position papers and the provision of strategic advice and tactical recommendation for achieving” policy goals. UPL Advisory Letter 9/9/09.

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What is lobbying (cont’d)?• Executive branch lobbying is not work in

connection with Executive branch investigations and enforcement actions, the issuance of licenses or approvals or the adjudication of private and public rights and obligations.” UPL Advisory Letter 9/9/09.

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Why is this all so confusing?

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Why is this all so confusing?• Under the UPL Rules, lobbying is not the practice

of law. Non-lawyers can lobby in the District of Columbia before the legislative and executive branches without being lawyers (or lawyers admitted to practice in D.C.), running conflicts checks, paying bar dues or the like. UPL Opinion 19-07 and 9/9/09 Advisory Letter.

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Why is this all so confusing?• D.C. Legal Ethics Committee Opinion 344, the

seminal opinion on lobbying by D.C. lawyers, states “the D.C. Rules of Professional Conduct regulate ‘lobbying activity’ when undertaken by lawyers.” UPL Opinion 19-07 at 3.

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UPL Definitions of Lobbying vs. LDA?• Are definitions of lobbying for the purposes of the

unauthorized practice of law consistent with the definitions of lobbying in the Lobbying Disclosure Act (LDA)?

• Simply because conduct is defined as lobbying under the LDA does not mean it is lobbying for UPL purposes. E.g., lobbying the executive branch to grant a license to a client?

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Why is this all so confusing?• Under the D.C. Rules of Professional Conduct,

lawyers represent clients in “matters” and that term is specifically defined to include lobbying. D.C. Rule 1.0(h).

• A lawyer engaged in a “matter” is subject to the D.C. Rules in numerous ways. See, e.g., D.C. Rules 1.1 (competence)1.2 (scope of representation); and 1.7, 1.9, 1.11, 1.12 and 1.18 (conflicts).

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• D.C. UPL Committee: lobbying is not the practice of law.

• D.C. Rules of Professional Conduct and Opinion 344 of the D.C. Legal Ethics Committee: lawyers who lobby are subject to the D.C. Rules of Professional Conduct, which include lobbying as part of the definition of a matter.

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What does it mean if an engagement is covered by the D.C. Rules

• All of the usual indicia and features of a legal representation must be observed: confidentiality, client communication, conflict checks and application of the conflict rules, written engagement letters, handling of client funds consistent with D.C. Rule 1.15, right to withdraw only as permitted by D.C. Rule 1.16, obligations to tribunal and third parties per D.C., etc.

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What does it mean if an engagement is covered by the D.C. Rules (cont’d)

• Except . . . (see the following slides).

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More Confusion: Special Rules for Conflicts in Lobbying Engagements

under the D.C. Rules • Lobbying engagements are exempted from one of

the most significant of the D.C. Rules on conflicts of interest. Normally, a lawyer cannot be adverse to a current client, even on an unrelated matter. This is not the case in lobbying engagements.

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Special Rules for Conflicts in Lobbying Engagements (cont’d)

• A lawyer can lobby on behalf of one client even though the lawyer knows that another client is lobbying for a different outcome in the same matter, provided that the lawyer is not representing that other client in the lobbying matter.

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• A lawyer can lobby on behalf of one client even though the lawyer knows that another client’s business or policy interests will be adversely affected if the lawyer is successful.

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• The exemption for conflicts in lobbying is a narrow one and only applies to one of a number of D.C. conflict rules.

• The lawyer and the lawyer’s law firm still cannot lobby on behalf of adverse interests in the same engagement D.C. Rule 1.7(a).

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• A lobbying matter is still subject to the personal interest and “punch pulling” conflict rules – D.C. Rules 1.7(b)(2) through (b)(3).

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• The former client conflict rule which prohibits side switching in substantially related matters still applies.

• The imputation rule – D.C. Rule 1.10 – still applies.

• The rules against use of one client’s confidential information to help another client also apply. See D.C. Legal Ethics Opinion 344.

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D.C. Rule 5.7: the recipe for lawyers avoiding the application in distinct lobbying engagements

• D.C. Rule 5.7 provides that lobbying falls under the D.C. Rules when intertwined with the provision of legal services to a client. D.C. Rule 5.7(a)(1).

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D.C. Rule 5.7: the recipe for lawyers avoiding the application in distinct lobbying engagements

(cont’d)• The lawyer can exempt a lobbying engagement

that is distinct from any matter involving legal services if the lawyer follows the procedure outlined in D.C. Rule 5.7(a)(2): advising the client that the services being provided are not legal services and that the protections of the lawyer-client relationship do not exist.

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How do we make sense of this? Lets look at some different scenarios and show how the various rules and opinions fit together, sort of.

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Scenario #1• A consulting/lobbying firm with sole office in D.C.

that does not purport to practice law and does not have any lawyers on staff.

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Scenario #1 (cont’d)• This firm and its principals/employees cannot

engage in the practice of law because they are not licensed or otherwise permitted to do so by the applicable D.C. Rules. They cannot hold themselves out as attorneys by title or otherwise. If they did, the offending individual or individuals would be subject to prosecution by the D.C. UPL Committee for the unauthorized practice of law.

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Scenario #1 (cont’d)• This firm – composed entirely of nonlawyers – is

not subject to the D.C. Rules of Professional Conduct, with regard to conflicts, fees or any other of the D.C. Rules.

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Scenario #2• Again, a consulting or lobbying firm with a sole

office in D.C. that does not purport to practice law. Under this scenario, however, some members or employees of the firm are lawyers but not admitted in the District of Columbia. Instead, they are admitted in other jurisdictions.

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Scenario #2 (cont’d)• The lawyer members of the consulting firm

cannot hold themselves out in any way to be practicing law in the District of Columbia. They cannot use any title that indicates that they are lawyers: Esquire, Counselor, Attorney, Associate, Counsel, Trial Advocate, Legal Advocate, etc. If they do so, they would be in violation of the UPL Rules. This applies to business cards, letterhead, proposals, internet bios.

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Scenario #2 (cont’d)• Query: how does the lawyer member of a

consulting firm inform a client that she is a lawyer without falling afoul of the holding out limitations?

• Can she put on her bio that she rec’d a J.D.? • Can she put on her bio that she is admitted in

another jurisdiction? • If so, do you need a disclaimer that the firm and

the member are not engaged in the practice of law in D.C.?

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Scenario #2 (cont’d)• The lawyer members of the consulting firm

cannot, in fact, render legal services. They cannot give legal advice to their clients, even if they do not hold themselves out as lawyers. That is also a violation of the UPL rules.

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Scenario #2 (cont’d)• Provided that the lawyer members of the

consulting firm do not hold themselves out as lawyers, the D.C. Rules do not apply to these individuals and their activities.

• Note, however, for those lawyers admitted in other jurisdictions, the lawyer should consult the ethics rules of such other jurisdiction to determine if their activities are regulated by those rules.

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Scenario #2 (cont’d)• All jurisdictions can exercise disciplinary authority

over members of their bars without regard to the location of the conduct at issue. See, e.g., ABA Model Rule 8.5(a).

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Scenario #3• A non-lawyer lobbyist who works at a D.C. law

firm but confines their practice to lobbying work. Again, the non-lawyer lobbyist cannot hold themselves out as a lawyer or provide legal advice.

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Scenario #3• Given the fact that the lobbyist is part of the law

firm, the lobbyist should inform the client in writing that no legal services are being provided and that the ethics rules do not apply, including rules that are meant for the protection of clients such as confidentiality and conflicts. This is not strictly mandated by the D.C. Rules but is good practice. See D.C. Rule 5.7.

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Scenario #3 (cont’d)• What if lawyers help with the lobbying efforts?

Does the lawyer’s presence on the team convert the matter into a legal matter? Ideally, the engagement letter should address this: lawyers may work on your matter but they will not be providing legal services.

• Any limitation in an engagement letter is only valid if the professionals working on the engagement act consistently with it.

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Scenario #3 (cont’d)• What if the team includes lawyers who are

providing legal services? Can the non-lawyer lobbyist still provide lobbying services? Yes, but under this scenario the D.C. Rules apply to the engagement.

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Scenario #4• A lawyer, admitted to practice in the District of

Columbia, wishes to take to engage in lobbying on a matter and will not be providing other services. Since the lawyer is admitted in the District of Columbia there is no issue regarding the unauthorized practice of law. However, do the D.C. Rules apply to the engagement?

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Scenario #4 (cont’d)• The answer is that a lawyer at a D.C. based law

firm who engages in lobbying is subject to the D.C. Rules if the engagement is part of a broader representation by others at the firm that includes legal services. D.C. Rule 5.7(a)(1).

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Scenario #4 (cont’d)• If, however, the lobbying engagement “is distinct

from the lawyer’s provision of legal services to the client,” D.C. Rule 5.7(a)(1), in those circumstances, the lawyer-lobbyist can put the engagement outside of the D.C. Rules if the client is told that the services are not legal services and that “the protections of the client-lawyer relationship do not exist.” D.C. Rule 5.7(a)(2).

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Scenario #4 (cont’d)• If the lawyer lobbyist later provides legal services

in the course of the lobbying engagement, the disclaimer provided to the client will no longer be valid.

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Scenario #4 (cont’d)• The degree of disclosure and discussion

necessary to constitute “reasonable measures to assure that the person obtaining the law-related services are not legal services and that the protections of the client lawyer relationship do not exist” will vary based on the sophistication and experience of the client. See D.C. LEC 344 and Comment [7] to Rule 5.7.

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Scenario #5 • A D.C. admitted lawyer at a D.C. law firm provides

a range of services to a long-time client, including some lobbying and some legal work. Can the lawyer proceed outside of the D.C. Rules for the lobbying work?

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Scenario #5 (cont’d)• The default answer is no, unless the lobbying

services are distinct from the legal services and the lawyer makes the disclosure required by Rule 5.7(a)(2). A lawyer cannot divide an engagement that otherwise addresses the same subject matter, issues and objectives into a lobbying portion and legal services portion in order to assert that the lobbying work is “distinct” from the legal services.

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Scenario #6• A lawyer not admitted to practice in D.C. but

practicing out of a D.C. law firm wants to engage in a lobbying practice. Can she do so?

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Scenario #6 (cont’d)• Yes, provided that the lawyer does not hold

herself out as a D.C. bar member and includes on all correspondence, business cards, bios and the like, the disclaimer: “Admitted in X only. Not admitted in D.C. Practice Limited to Executive and Legislative Branch Lobbying.”

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Scenario #6 (cont’d)• The lawyer cannot provide any legal services,

even in conjunction with D.C. admitted lawyers. The lawyer can work with others who do provide legal services provided that they are admitted to the D.C. Bar.

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Scenario #6 (cont’d)• If the non-D.C. admitted lawyer is involved in the

provision of legal services that lawyer is in violation of the UPL rules and any D.C. lawyer on the engagement is in violation of D.C. Rule 5.5(a), which prohibits, inter alia, assisting others in the unauthorized practice of law.

• There are exceptions that allow non-D.C. admitted lawyers to provide legal services in D.C., e.g., patent, immigration, etc.

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Review• What is lobbying? • Why is this all so confusing? • Special conflict rules for lobbying engagements.• D.C. Rule 5.7: what lobbying engagements by

lawyers can be exempted from the D.C. Rules and the disclosures required for the exemption.

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Review (cont’d)• Some lobbying scenarios:

– The consulting/lobbying firm with no lawyers; – The consulting/lobbying firm with lawyers; – The non-lawyer at a D.C. law firm; – The D.C. lawyer at a D.C. law firm; and – The non-D.C. admitted lawyer at a D.C. law

firm.

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Thank you!

Thomas B. [email protected]

Andrew M. [email protected]

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mailto:[email protected]

mailto:[email protected]

For Lawyers Who Lobby: Ethics and Unauthorized Practice Considerations Thomas B. Mason, Harris, Wiltshire & Grannis LLP Andrew Siff, Siff & Associates.

Documents

legislative lobbying

lobbying engagements

lobbying activity

executive branch lobbying

lobbying disclosure

upl rules

upl opinion

law firm