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Brown in Mass Lawyers Weekly about Ethics Bill

10/5/09--Thanks to the landmark ethics bill signed by Gov. Deval L. Patrick over the summer, attorneys who peddle influence on Beacon Hill are being forced to define where lobbying ends and lawyering begins.

Massachusetts Lawyers Weekly
October 5, 2009
Article by Julia Reischel

10/5/09--Thanks to the landmark ethics bill signed by Gov. Deval L. Patrick over the summer, attorneys who peddle influence on Beacon Hill are being forced to define where lobbying ends and lawyering begins.

"[The new lobbying rules are] going to have an impact on attorneys who, quite frankly, are [only] practicing law and not lobbying under the old rules," says Stephen P. Tocco, president and CEO of ML Strategies, the lobbying firm affiliated with Boston's Mintz, Levin, Cohn, Ferris, Glovsky & Popeo. Tocco says the lawyers who work for him, like others on Beacon Hill, will be caught in a widened net of regulation that will upend decades of lobbying status quo.

What worries lawyer-lobbyists most about the new rules is their  definition of lobbying, which encompasses all "strategizing, planning and research" involved in influencing legislation and regulation. (There was no definition of lobbying under the old rules.) The change is an unpleasant jolt for many lawyers who offer "strategy" as part of their services.

"Before, if you offered strategic advice to a client but you never interfaced with any public official, that wasn't lobbying," Tocco says.

"What's ‘planning?'" asks Benjamin Fierro III, a lawyer who runs his own Boston lobbying firm, Lynch & Fierro. "It's undefined. That's where the lawyer could find himself being deemed a lobbyist."

, which has watched corruption scandals consume its last three speakers of the House, has always regulated lobbyists loosely. The Secretary of State's Office has had little power to investigate alleged wrongdoing by the lobbyists it oversees, and the statutory definition of lobbying has been vague enough to allow many to avoid registering at all.

Compared to the federal lobbying rules, which have undergone several reforms since the powerful lobbyist Jack Abramoff pleaded guilty to fraud, tax evasion and conspiracy to bribe public officials in 2006, such laxity on the state's part seems practically Stone Age.

But the indictment of House Speaker Salvatore F. DiMasi for doling out government contracts in return for cash in June was the final straw, with the scandal putting wind in the sails of a long-becalmed effort to reform the state's ethics laws. A month later, with much fanfare, Patrick succeeded in getting the Legislature to accept an ethics and lobbying reform bill that he touted as "sweeping" and "strong."

However, the lobbying portions of the law have caused so much alarm that, on the day they were supposed to take effect last week, the Legislature hurriedly passed a measure postponing their start date until Jan 1. The bill, which Patrick had not signed at press time, would grant a reprieve to lawyer-lobbyists, many of whom have been vocal critics of the new lobbying rules. This puts the law in limbo until the governor weighs in.

That more attorneys will have to register as lobbyists seems a given under the new lobbying rules, whenever they go into effect. And that has lawyer-lobbyists wary, perhaps because the cozy businesses they have built in the gray areas of the old law are in peril.

‘A chicken-and-egg question'

The relationship between lawyer and lobbyist has traditionally been a murky and profitable one. 

Michael J. Muse, a Wellesley attorney who is also a registered lobbyist, is, according to records at the Board of Bar Overseers, one of the few lawyers in Massachusetts who has been disciplined by the BBO for activities related to lobbying.

In 1995, Muse was suspended from the practice of law for three years for helping a longtime friend and lobbying contact, state Rep. Kevin Fitzgerald, seize control of the finances of an elderly, mentally ill woman, Mary Guzelian.

In 1981, without Guzelian's apparent understanding, Muse arranged for her to become a ward of one of Fitzgerald's aides and wrote Guzelian a will in which she named Fitzgerald as a beneficiary. For four years, Muse managed Guzelian's assets, collecting fees in the process. When Guzelian was hit by a taxi and killed in 1985, Muse administered her estate and paid himself $200,000.

Only when Guzelian's sister appeared in 1992 did Muse's conduct come to light, and even then he denied wrongdoing, instead choosing to defend his conduct in the Probate & Family Court.

Although he eventually admitted that he had made "gross errors of judgment" to the BBO, he successfully petitioned to return to the practice of law in 1999 and continues to be both a lawyer and a lobbyist today. He refuses to discuss his past, telling Lawyers Weekly: "I don't talk about that. I just go about my business."

Antics like Muse's informed the widespread impression that lobbying was beneath the stature of a well-regarded lawyer. But in the 1990s, the price that clients would pay for what was termed "government relations" grew large enough to sway the profession's mores. Big law firms such as Mintz Levin and Bingham McCutchen opened lobbying affiliates under their brand names and offered "strategy" as their primary service. Other firms, such as Brown Rudnick and DLA Piper, developed practice groups devoted to the specialty.

"There's a fair number of lawyers who just do legislative or regulatory work," says Martin W. Healy, general counsel and staff lobbyist for the Massachusetts Bar Association. "There has been tremendous growth in that area of the practice of law."

But while those attorneys have capitalized on the credibility their J.D.s give them, whether their lobbying activities are truly the practice of law is an open question.

"A chicken-and-egg type of question," Healy says.

The Rules of Professional Conduct are silent on the subject. In fact, they do not mention the word "lobbyist," Fierro notes. Nor does the BBO. And in Massachusetts, there is no caselaw to speak of regarding lawyer-lobbyists.

"This is an unexplored area," Healy says.

‘No room for confidentiality'

The reformed lobbying rules that will soon govern lobbyists and the code of conduct that applies to lawyers seem diametrically opposed to each other when it comes to keeping secrets, suggesting there may be trouble ahead.

"Because of the new ‘strategy' definition, it's getting very complicated when you start to talk about attorney-client privilege," Tocco says.

The lobbying rules require disclosure - now more than ever, because for the first time they mandate that lobbyists provide not only the names of their clients but also a statement of their position on each bill and action they seek to influence.

The Rules of Professional Conduct, meanwhile, require confidentiality, especially when it comes to client information. With disclosure pitted against discretion, how can a lawyer-lobbyist do both?

"That's the issue," Healy says. "What is the BBO going to give for guidance if you have a client, and you're advising him, and he's looking to change an area of law that may be controversial? The client has seen a lawyer-lobbyist, and he thinks that where he is talking to an attorney there's confidentiality built into that discussion. Now, if you have to go and report this publicly, I think that clearly pierces attorney-client confidentiality."

Ben T. Clements, the governor's chief legal counsel and one of the drafters of the new ethics law, says that the legislative measure in no way affects attorney-client privilege.

"Nothing in the new lobbying law requires lawyer-lobbyists to include privileged information in their filings with the secretary of state," he says.

But it is unclear where the BBO would stand on that issue, according to Michael A. Fredrickson, the board's general counsel. So for now, interpretations of where lawyering ends and lobbying beings vary widely among practitioners.

Lawyers Weekly spoke to one solo lobbyist requesting anonymity who considers all his communications with clients privileged.

"That's one of the benefits of being a lawyer," he says, adding that lobbying for him is the practice of law. "I don't know what else you'd call it," he says.

At the opposite end of the spectrum, the lawyers at ML Strategies state in their contracts with lobbying clients that their communications are not privileged.

"We have contract language that makes it very clear that we're not practicing as attorneys," Tocco says. "While we're affiliated with Mintz Levin, we want our clients to understand that they don't have the same type of protection as they would with the law firm."

Others draw more subtle lines in the sand. Former lawmaker John A. Stefanini, who lobbies on behalf of Suffolk Downs at the Boston law firm of DLA Piper, says that communication between him and his race-track client is privileged in certain situations.

"If I'm dealing with my client on strategic matters that impact the legal advice that I give them, then yes [it's privileged]," he says.

One of Stefanini's lobbyist colleagues at the firm, Democratic political consultant Charles A. Baker, views the rule as something situational that applies to behavior.

If you are giving legal advice and counsel to a client, he says, the lobbying rules are less likely to apply.

"The more helpful way to think about it is, ‘What activity are you engaged in,'" Baker says. "I've always applied the rule as at it relates to what you're doing versus who you are."
Some lawyer-lobbyists have never thought about the conflict before. Robert J. Ambrogi, a Rockport attorney and lobbyist for the Massachusetts Newspaper Publishers Association, says that, for him, the issue of attorney-client privilege hasn't come up.

"Come to think of it," he says, "under this new legislation, you'll be required to state the positions of your clients on legislative issues. There's not a lot of room for confidentiality there."

‘A little hysteria'

Concern over the new lobbying rules has washed over Beacon Hill. Among themselves, lawyer-lobbyists are fretting over what the reformed ethics law will require of them.

"The tentacles of it spread into law firms and other places," warns one veteran lawyer-lobbyist who asks not to be named.

There are worries that even paralegals who strategize about influencing legislation will have to register as lobbyists. Some predict that a lawyer could act as a lobbyist without even knowing it, such as when a client acts on legal advice by contacting a legislator or regulator on his own. Others caution that lawyers who simply monitor pending legislation for large corporations will fall under the lobbyist umbrella.

"There are a lot of folks who fit into that gray area, who have legal practices that interact with the world of government," Stefanini says. "Take DLA Piper: A whole bunch of folks here work within the world of real estate development. Real estate development, by definition, interacts with the world of government. At what point does it become prudent to register?"

At ML Strategies, which Tocco says works "hand in glove" with lawyers at Mintz Levin, plans are under way to register the law firm and many of its attorneys as lobbyists under the new rules - just to be safe.

But those who served on the task force that wrote the law call these worries an overreaction. Clements disagrees that the new rules are unclear about who needs to register or that it will have a profound impact on attorneys.

"An individual lawyer engaged in governmental strategizing is required to register only if the strategizing is performed in connection with an actual communication with a government employee, and the lawyer him or herself engages in at least one such communication," he says.

Pamela H. Wilmot, the executive director of the advocacy group Massachusetts Common Cause and a lawyer-lobbyist herself who served on the task force as well, agrees that the definition of lobbying hinges on the act of communicating.

"For a lawyer who is working in the background and writing a piece of legislation and has no communication with a government official about that legislation, they're not going to have to register," she assures Lawyers Weekly. "I think there will be more people who will have to register under the law, but perhaps not quite as many as some fear."

Boston College Law School Professor George D. Brown, an ethics expert who also served on the task force, did not anticipate criticism from lawyers at this late stage in the game. He says he cannot remember anyone raising concerns about the law's impact on the bar before it was passed.

"The task force held a public hearing, which was widely publicized and widely attended," he says. "I have to believe the legal community was widely aware of the [new lobbying provisions], and therefore this kind of after-the-fact criticism surprises me."

Some view the 11th-hour criticism as an effort by foes of lobbying reform to hamstring a law that has already been passed.

"There is a little hysteria," Wilmot says. "I think some of this response is a reaction from opponents of the idea, and part of it also is sort of a vacuum coming out of the Secretary of State's Office about how they actually interpret the law."

Indeed, Secretary of State William F. Galvin has issued only sparse guidance on his website with regard to how the new lobbying rules affect lawyers. His office, which did not return a call from Lawyers Weekly, has been targeted by lawyer-lobbyists who want to "clarify" the lobbying provisions in the law, according to Wilmot and other lawyer-lobbyists interviewed for this story.

Opponents of the new lobbying rules have been talking to legislators as well. Last week, those discussions bore fruit when the Legislature tucked language postponing the lobbying rules into a budget bill the day they were set to go into effect.

That leads to a sad irony: So far, the only tangible impact of the new lobbying measure on Beacon Hill has been a flurry of lobbying.