October 5, 2009
Article by Julia Reischel
http://www.masslawyersweekly.com/
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
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
Massachusetts
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
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
"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
"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
"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