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December 01, 2011

ABA Urges Exception in OGE Lobbying Rules for Nonprofit Professional Associations

ABA President Wm. T. (Bill) Robinson III urged the Office of Governmental Ethics (OGE) to retain an exception for nonprofit professional associations that is included in proposed amendments to regulations limiting gifts to executive branch employees from registered lobbyists and lobbying organizations.

The proposed amendments, issued Sept. 13, would extend the current lobbyist gift ban that applies only to political appointees to all executive branch employees, but would exclude nonprofit professional associations from the definition of “registered lobbyist or lobbying organization” under new §2635.203(h)(4) of 5 CFR Part 2635. The exclusion would allow government employees to accept certain gifts from such entities when they are made in connection with educational or professional development activities.

“Government lawyers should be encouraged, not discouraged, from taking advantage of the many educational and professional development opportunities provided by the ABA and other bar associations that involve not only attending conferences, programs and other meetings, but also interacting with other lawyers and legal professionals at social events held as an integral part of those meetings,” Robinson wrote in a Nov. 14 comment letter to the OGE.

Although the ABA takes no official position on whether lobbying organizations in general should be precluded from providing gifts and opportunities for interaction with agency employees, he said, the association “would have serious concerns if this blanket prohibition were extended to nonprofit professional associations.”

Under current law, government employees may accept free attendance at widely attended gatherings when it is determined that such attendance “is in the interest of the agency because it will further agency programs and operations.” Robinson emphasized that the government and its employees, the public, and professional associations all benefit from the kind of professional interchange fostered at these gatherings, such as training and professional development.

“More specifically,” he noted, “these kinds of events enable lawyers to fulfill their professional responsibility to stay abreast of important legal developments, maintain and improve their professional competency and skills, and improve the law.”

He said that the substantive work of the ABA and the many state and local bar associations around the country covers almost all areas of interest to government lawyers, including: criminal justice and law enforcement, tax, antitrust, litigation, alternative dispute resolution, banking, securities, consumer protection, energy environment, public contracts, administrative law, disability, civil and equal rights, and constitutional law.

The ABA’s work includes development of reports and publications, continuing legal education programs, and other conferences and events.

The association adopted policy in 1991 opposing proposed limitations and restrictions on the ability of executive branch employees to participate in professional associations; subsequent policy opposed efforts to curb government lawyer participation on professional bar activities. The ABA Task Force on Government Lawyer Participation, created in 1996, issued two reports: a final report released in January 1997 and specific guidance issued in 2001 on ways in which participation by government lawyers in professional bar association activities could be encouraged. Additional  policy adopted by the ABA in 1998 emphasized that such participation by government lawyers at all levels – federal, state, territorial, tribal and local, including those in judicial positions – is in both the government’s and the legal profession’s interests and would enhance the work of bar associations.

In addition to Robinson’s comment letter, which represented the views of the ABA, separate comments on the proposed OGE rule were submitted by the ABA Section of Administrative Law and Regulatory Practice that reflect only the view of that section.

The original deadline for submitting comments on the proposed amendments was Nov. 14, but the OGE recently extended the comment period to Dec. 14, 2011.


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