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Practice Management

Ethical Considerations Arising from Lobbying

Ryan Sindelar and Thomas G Wilkinson

Ethical Considerations Arising from Lobbying
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When a lawyer engages in lobbying, this advocacy does not always constitute the practice of law. States generally define lobbying as an attempt to influence government action through written or oral communication. This can include meeting with legislators to discuss specific legislation, meeting with public officials to discuss strategy, or any other attempt to influence government action.

However, each state may have unique elements for what constitutes lobbying. For example, the Pennsylvania Rules of Professional Conduct (PRPC) state that one example of nonlegal services includes “legislative lobbying.” This means that while some forms of lobbying may be deemed legal work, not all of the work falls under that definition. Whether an attorney is performing legal work or nonlegal work for a client is important for multiple reasons.

Why It Matters

The distinction between legal and nonlegal services may seem immaterial, but if the lawyer only provides nonlegal services, the client may not be afforded significant protections that arise in an attorney-client relationship. Legal work includes the traditional tasks attorneys perform—drafting and filing pleadings, constructing trusts and other contracts, among other types of work. All nonlegal work may also be considered nontraditional work, which includes lobbying. The attorney-client privilege typically attaches to communications where confidential legal advice is sought or conveyed. An unsophisticated client may assume that advice or strategy recommended by a lobbyist who also happens to be a lawyer will be protected by the privilege.

To avoid any confusion regarding the lawyer-lobbyist’s role, write an unambiguous engagement letter and explain to the client whether you are definitively establishing an attorney-client relationship. If the intention is that no attorney-client relationship exists, the confirming letter should clarify that communications will not be deemed privileged.

Does an Attorney-Client Relationship Exist?

Your specific jurisdiction’s rules can help determine whether an attorney-client relationship exists. For example, the PRPC state that when an attorney provides nonlegal services indistinguishable from legal services provided to a recipient, that attorney is subject to all of the Rules related to that relationship. Additionally, even if the nonlegal services are distinct from the legal services being provided to a recipient, if the attorney knows or reasonably should know that the recipient believes the attorney-client privilege applies, then the attorney is subject to all of the relevant Rules of Professional Conduct. However, in Pennsylvania, if the attorney makes reasonable efforts to avoid any misunderstanding by advising the recipient that the services are not legal services and that an attorney-client relationship does not exist, then the duties and protections set forth in the Rules should not apply. Accordingly, answer any questions the client may have regarding this relationship and clarify which protections your relationship may or may not provide.

Additional Compliance

Most states and the federal government have additional registration and reporting requirements for lobbyists, many of which can be found through each state’s codified laws. The federal regulation controlling the reporting and registration of lobbyists is known as the Lobbying Disclosure Act of 1995. The definition of lobbying and who can be labeled a lobbyist varies by state. However, almost all definitions revolve around whether the person advocating is receiving payment and the level of that payment. Some states mandate disclosure of the number of payments the lobbyist receives, and many states require the registration of lobbyists with their proper authorities. To properly advocate for your client, make sure you are compliant by reviewing your jurisdiction’s registration and reporting rules.

The National Conference of State Legislatures is an excellent resource for rules and ethics surrounding lobbying and can help get you started on finding the rules in your jurisdiction.