Firms Can't Lobby if They Hire Legislator as Consultant

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By Joan C. Rogers

March 25 — A consulting firm and the law firm that owns it must completely stop lobbying the state legislature if a lawyer/legislator joins the consulting firm, according to a proposed opinion from the Virginia bar's ethics committee.

The opinion, if adopted, casts a wide net, covering not only lawyers who are state legislators but those who are members of any public body.

No lawyers or nonlawyers in a consulting firm may lobby a public body if a lawyer in the consulting firm serves on that body, nor may anyone in the law firm that owns the consulting firm, the committee advised.

The deadline for public comment on the proposed opinion is May 2.

Inquiry From Lawyer/Legislator

The draft opinion addresses a situation in which a lawyer who is a member of the Virginia General Assembly (legislature) joins a consulting firm. The firm employs lawyers and nonlawyers who lobby state and federal legislators. A law firm composed of Virginia lawyers owns the consulting firm.

The lawyer/legislator asked the committee whether the lawyers and nonlawyers in the consulting firm would be barred from lobbying the state legislature if he joined the consulting firm and, if so, whether that prohibition would extend to the lawyers in the law firm.

The committee said a total ban on lobbying would be the result.

Both lawyers and nonlawyers in the consulting firm, as well as the lawyers in the law firm that owns the consulting firm, can't represent clients or otherwise lobby before the state legislature if a lawyer in the consulting firm is a legislator, according to the draft opinion.

Impact on Consulting Firm

This conclusion follows from prior Virginia ethics opinions that said a lawyer can't lobby a public body if another member of the lawyer's firm is a member of that body, the committee said. These opinions emphasize the need for lawyers in public bodies to avoid even an appearance of impropriety and avoid diminishing public confidence in the administration of government, it said.

The committee cited Virginia Rule of Professional Conduct 1.11(a), which prohibits lawyers who hold public office from using that position to obtain a special advantage for the lawyer or a client contrary to the public interest, as well as Rule 8.4(d) (similar to ABA Model Rule 8.4(e)), which bars lawyers from implying they can exert improper influence on a legislature, public official or tribunal.

There is no reason to distinguish between lawyers associated in a law firm and lawyers associated in a consulting firm for purposes of those rules, the committee said.

It also advised that lawyers in the consulting firm can't permit their nonlawyer colleagues to lobby the state legislature if a lawyer/legislator joins the firm. Allowing nonlawyers to lobby when their lawyer colleagues can't do that would signal that a lawyer's ethical obligations are mere technicalities that can be evaded by using nonlawyers, it said.

The panel acknowledged that the lawyers in the consulting firm may not have supervisory or managerial authority over the nonlawyers for the purpose of responsibility for the nonlawyers' conduct under Rule 5.3.

However, Rule 8.4(a) forbids lawyers to circumvent ethics rules by using others to do things the lawyers themselves are prohibited from doing, it said.

Law Firm Affected Too

The committee also concluded that lawyers in the law firm that owns the consulting firm can't lobby state legislators once a lawyer/legislator joins the consulting firm.

A contrary conclusion—letting the law firm lobby when its consulting firm employs a lawyer/legislator—would elevate form over function and essentially allow the two firms to use an artifice to get around the conflict arising from the lawyer/legislator's employment with the consulting firm, the panel said.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

For More Information

Full text at http://www.vsb.org/docs/Draft-LEO-1884_031816.pdf.

Public comment notice at http://www.vsb.org/site/regulation/public_comment_leo1884.

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