In last month’s bulletin, we considered the need for the lawyer/lobbyist to specifically notify the client whether or not the protections of a clientlawyer relationship will exist in the engagement. One such protection that immediately comes to mind is that of client confidentiality, which encompasses the attorney-client privilege.
It is important to recognize that conflicting compliance issues may arise between duties imposed by lobbying statutes and the mandates of legal ethics rules. For instance, federal and state statutes require lobbyists to register and report information about themselves, their clients and their lobbying activities.1 Conversely, Rule 1.6, subject to limited exceptions, prohibits a lawyer from revealing information about a client-lawyer relationship without the client’s informed consent.2 Given the duty to safeguard client confidences, a lawyer acting as a lobbyist may confront a dilemma complying with the lobbying statutes. Many states are still working at navigating through this gray area to establish a path that balances the purpose for both lobbying statutes and legal ethics rules.3
Another issue that arises in the lawyer/lobbyistclient relationship is whether communications are protected by attorney-client privilege. Many clients seek to hire a lawyer for lobbying activities with the specific intent of establishing an attorney-client relationship, thereby protecting communications. Courts, however, are split as to whether law-related activities, such as lobbying by a lawyer on behalf of a client, constitute a legal service sufficient to establish an attorney-client privilege.4 When looking at the facts, some courts specifically focus on the actual services sought by the client and rendered by the lawyer/ lobbyist.5
When entering lawyer/lobbyist–client relationships, it is important to consider whether the lawyer/lobbyist can properly meet registration and reporting requirements while satisfying client expectations for confidentiality and attorney-client privilege. These considerations must be weighed when the engagement letter or services contract is entered so the lawyer/lobbyist and the client will know what protections will be afforded.