The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
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.
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.
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.
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 email@example.com
To contact the editor responsible for this story: Kirk Swanson at firstname.lastname@example.org
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.
Copyright 2016, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)