THE CASE OF LAWYERS ACTING AS LOBBYISTS AT EU LEVEL

Law firms that provide lobbying services as well as the more traditional legal services have been reluctant to embrace transparency from the beginning, and most remain unregistered in the EU Transparency Register. Of those that have registered, many refrain from disclosing their lobby clients.

As remarked by the Alliance for Lobbying Transparency and Ethics Regulation (ALTER-EU), "The European Union is a body whose existence and remit is based on treaty law, and which deals with the making and revision of laws. Legal expertise is required and used in lobbying all the time, and using legal language or arguing about the interpretation of legal texts is a common lobbying strategy. Both treaty and case law are open to different and often contradictory legal interpretation. It is exactly these kinds of lobbying services that law firms tend to offer and provide to clients, when they refer to 'government relations' and 'public policy' offering to represent a legal interpretation of an existing or proposed law to public officials, which is favourable to the interests of a company client". ALTER-EU goes on to say that "it stands to reason and is a principle of law and investigative integrity- that client confidentiality in legal cases, such as representing a client in court, is necessary. However, client confidentiality when providing interest representation or lobbying services as defined by the European Commission and Parliament should be be subject to the same transparency requirements as any other kind of actor involved in lobbying. When law firms seek to directly or indirectly influence the formation or implementation of policy and decision-making processes, on behalf of clients, they must be subject to the same transparency requirements as everyone else."

To better understand the situation, it is worth considering or reconsidering what the position of the Council of Bar and Law Societies of Europe (CCBE) continues to be and has been from the very beginning.

The CCBE represents more than 700,000 European lawyers through its member bars and law societies of the European Union and the European Economic Area. In addition to membership from EU bars, it has also observer representatives from a further seven European countries' bars.

The CCBE's Argument

1. As far as the role of individual lawyers or law firms as potential lobbyists is concerned, the legal profession is already regulated by strict deontological principles. The CCBE itself has issued the CCBE Code of Conduct which regulates the legal profession at European level and is respected as binding in the Member States. One of the most important elements of lawyers' professional rules is professional secrecy which applies to lawyers when acting in a professional capacity. In continental Member States, professional secrecy rule has different origins, sometimes the constitution, sometimes the criminal law as well as statutes. In common law countries, legal professional privilege and confidentiality are common law principles stated by the Courts in their decisions to be a fundamental feature of administration of justice and the rule of law.
2. Lawyers are involved in two kinds of activities in relation with the European institutions. On the one hand, they are involved in individual cases for clients regarding the application of existing Community law, in particular in the area of competition law. These activities are already governed by numerous procedural rules, and for lawyers they are governed by their deontology. On the other hand, lawyers intervene before institutions in the framework of the legislative process. This type of activity is likely to be considered as lobbying though it is performed by lawyers.
3. Lawyers are subject in all Member States to their code of conduct which is strictly applied. Their deontology must be respected in the framework of their defence and advising activities as well as in their lobbying activities. Lawyers' deontological rules are stricter than those which lobbyists obey.
4. Reinforcing transparency rules must be done while respecting lawyers' ethical rules, and in particular professional secrecy. Lawyers should not be obliged to disclose such information they obtain where this could be a breach of professional secrecy or other professional rules.

The CCBE Code of Conduct and Confidentiality

It is of the essence of a lawyers' function that the lawyer should be told by his or her client things which the client would not tell to others, and that the lawyer should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality there cannot be trust. Confidentiality is therefore a primary and fundamental right and duty of the lawyer. The lawyers' obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client. It is therefore entitled to special protection by the State. A lawyer shall respect the confidentiality of all information that becomes known to the lawyer in the course of his or her professional activity. The obligation of confidentiality is not limited in time. A lawyer shall require his or her associates and staff and anyone engaged by him or her in the course of providing professional services to observe the same obligation of confidentiality.

The CCBE Code and Conflict of Interest

A lawyer may not advise, represent or act on behalf of two or more clients in the same matter if there is a conflict or a significant risk of a conflict between the interests of those clients. A lawyer must cease to act for both or all of the clients concerned when a conflict of interest arises between those clients and also whenever there is a risk of a breach of confidence or where the lawyers' independence may be impaired. A lawyer must also refrain from acting for a new client if there is a risk of breach of a confidence entrusted to the lawyer by a former client or if the knowledge which the lawyer possesses of the affairs of the former client would give an undue advantage to the new client.

What is missing?

The CCBE Code of Conduct doesn't address the lawyer who acts as a lobbyist on behalf of a client. There is a need to articulate a language stating that

(a) A lawyer acting as a lobbyist, as defined in statute, resolution passed or adopted by the legislative branch, regulation promulgated by the Executive branch or any governmental agency, or any ordinance enacted by local government unit, shall comply with all regulation, disclosure, or other requirements of such statute, resolution, regulation or ordinance which are consistent with the Rules of Professional Conduct. 

(b) Any disclosure of information relating to representation of a client made by the lawyer-lobbyist in order to comply with such statute, resolution, regulation or ordinance is a disclosure explicitly authorized to carry out the representation and does not violate the Rules of Professional Conduct.

In the absence of such statute, resolution, regulation or ordinance, there's absolutely no obligation for a lawyer-lobbyist to comply (except perhaps on a volunteer basis with all the consequences that could result) and that's simple as that.