HIRING A LAWYER VERSUS A NON-LAWYER FOR PUBLIC POLICY ADVOCACY

When interested parties look for representation in the legislative and/or the executive branch, are they better served by individuals who are members of the bar, or such a credential a nice but not necessary extra? Some say having a lawyer makes all the difference, as legal training is crucial in successfully navigating the legislative and executive branches.  Others say what matters is access to decision-makers, which has no particular connection to legal training.

Many lawyers work either full-or part-time as public policy advocates. The roles of lawyer and public policy advocate are somewhat alike. In many respects, the jobs are very similar, but simply play out in different forums. A lawyer representing a client in court on traditional legal matters is seeking to solve problems for his or her client in that forum, while a public policy advocate is seeking to solve problems for his or her client in the legislative or the executive branch rather than courts.

A law degree is by no means a prerequisite for a competent public policy advocate. Other abilities, such as substantive knowledge and political savvy, are far better indicators of success. If legal expertise is no guarantee of public policy advocacy, what does a lawyer bring to public policy advocacy that a non-lawyer does not? The basic difference between lawyers engaged in public policy advocacy versus non-lawyers is substantive ability.

There are two advantages for public policy advocates with legal training: Oftentimes public policy advocacy questions are decided by procedural issues, and the advocate who knows the procedure and knows how to use the proceedure to his or her advantage has an edge over everyone else. Legal education teaches one about the importance of procedure and how to use procedure. Legal education also teaches one how to resolve clients' issues. The systematic legal approcah works very well in public policy advocacy.

Today numerous law firms have public policy advocacy and government relations practice areas, with varying fields of expertise. Lawyers and non-lawyers staff positions in these parctice areas. Moreover, the tasks undertaken by these employees frequently overlap. What is the difference between lawyer and non-lawyer public policy advocates or between a law firm and a public policy advocacy consultancy? What does it mean for the prospective client?

Law firms argue that they provide a broader spectrum of services to their clients. Indeed, only lawyers may offer many of these services. The ability to combine legal advice with public policy advocacy strategy and expertise is probably a strong selling point. Lawyers don't approach an issue with a preconceived notion that it's a public policy advocacy issue or a regulatory issue. They try to approach the issue from all sides.

There are important aspects, however, that law firms must consider before engaging in public policy advocacy. Indeed, a complex matrix of rules, unspoken norms, and ethics rules regulate public policy advocate's behaviour, with varying degrees of success. Lawyers who do any public policy advocacy must consider the ramifications of legal ethics rules on their work. Public policy advocacy, by itself, is not the practice of law. Many situations, however, would warrant the application of legal ethics rules to public policy advocacy by lawyers. Failure to satisfy those standards can result in a reprimand, or worse. This is particularly true in cases of lawyer-public policy advocates working out of law firms where implications for the entire firm must be taken into consideration.

In the United States of America, lobbyists who are members of the District of Columbia  (D.C.) bar know the current Rules of Professional Conduct include "lobbying activity" in the definition of the term matter. Thus, any rule concerning a matter will also include lobbying within its scope.

• Rule 1.7(a) prohibits one lawyer or law firm from advancing opposing positions, in the same lobbying matter. This conflict cannot be waived.
• Lobbying representations are not subject to Rule 1.7(b)(1) because such representations are not “matters involving a specific party or parties,” a phrase which excludes lobbying, rulemaking and other matters of general government policy.
• Rules 1.7(b)(2), (b)(3) and (b)(4) prohibit lobbying representations if:
  o The proposed representation is likely to be adversely affected by another representation;
  o Another representation is likely to be adversely affected by the proposed representation; or
  o The lawyer-lobbyist’s professional judgment reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party, or the lawyer’s own financial, business, property, or personal interests.

Because non-lawyers may engage in lobbying activity, lawyers and their associates may remove such activities from the conflicts provisions of the Rules of Professional Conduct through strict compliance with the regulations for 'law-related services'. To do so, however, the lobbying client must receive clear notice that the services are not legal services and that the usual protections accompanying a client-lawyer relationship do not apply.

Public policy advocates are free to change clients as they choose, provided they are able to find clients to hire them. Lawyers, however, must institute rigorous conflict checks to ensure that no insurmontable conflict of interest arises in a particular representation. Lawyers are therefore more restricted in their client choices. Prospective clients may take comfort in the additional protection that legal ethics rules provide. A client who engages a law firm has a certain degree of comfort in knowing that the law firm is not going to advocate in a position conflicting with the client's position.

By contrast non-lawyer public policy advocates lack a system of obligatory ethics norms akin to the Rules of Professional Conduct. While a number of Public Policy Advocacy associations have been established in several European countries, membership in such associations is not mandatory, and continuing education is not required of members. While such associations have a list of conduct rules, these rules are not binding and have no force of sanction in case of violation.