On the Conflict Between Lobbying and Legal Representation
This blog post was written by Congressional investigations attorney Andrew Herman. Though Mr. Herman is not an attorney with Price Benowitz LLP, we nonetheless appreciate his regular contributions regarding the legal goings-on around Capitol Hill. Today he offers his insight on how congressional lobbying can clash with legal representation, as exemplified by a recent high-profile ethics case.
When people learn that my legal practice relates to Capitol Hill, they often ask me if I ever lobby. I have occasionally been asked to lobby for a client and I will admit that there are times when it has been tempting. After all, while most lawyers measure their time in tenths of an hour, lobbyists generally bill on a monthly retainer basis.
While my stock answer when asked has always been that I can’t reconcile providing legal counsel with lobbying, I have never been able to coherently illustrate why that is. Today’s item in The Blog of the Legal Times embodies the source of my hesitancy. In short, a lobbyist from a D.C. law firm sent emails to members of the House Committee on Oversight & Government Reform asking them to go easy on a witness appearing before the Committee who was being represented by her firm’s congressional counsel.
Strictly speaking, it’s hard to blame the lobbyist in this situation; she’s petitioning members of Congress for assistance for her client, exactly what a lobbyist is supposed to do. Lobbying is not only a constitutionally-sanctioned activity, when done correctly it truly helps Congress function better. This, however, is not one of those times.
The problem comes when you have lawyers and lobbyists under the same roof who either don’t understand or don’t respect the divide between the two. Representing a person or entity before a congressional committee is a one-hundred-and-eighty-degree turnaround from lobbying on an issue for that same person or entity. Instead of asking members for assistance on a legislative issue, legal counsel’s role is to ensure that committee members follow their own house and committee rules, precedent relating to congressional investigations and the U.S. Constitution. Telling a committee that, no you can’t request those documents or ask those questions, or even [gasp] that your client won’t be answering any questions at all couldn’t be more different than asking members not to question a client or to, at least, be nice.
Now I understand that for firms that do both lobbying and legal representation, they aren’t using the same people for both things. But, as demonstrated by the above, sometimes the temptation for coworkers to coordinate approaches in the same matter is just too great.
The Committee is threatening to refer this to the legal bar. While this certainly crosses the line from a prudential standpoint, I’m not sure what rule of legal ethics it violates (though I’m willing to be educated). The American League of Lobbyists also publishes its own code of ethics, which could come into play as well.
This situation presents a more immediate problem for potential clients, however. In this instance, the law firm was willing to invest its lobbying capital in the hopes of easing a client’s committee appearance. But when the firm views its congressional investigation practice as an extension of its lobbying activities, and not a completely separate operation, what happens when the scales tip the opposite way? It’s easy to imagine a situation where a firm’s lobbyists are working for a major client before the same member or committee that is investigating a different client of the firm. Will the lobbyists request that the lawyers “go easy” on the committee members so as not to compromise the lobbying efforts? If so, it would not be hard to find significant ethical concerns for the firm’s lawyers worrying about the intra-firm repercussions of zealously representing their clients.