THE CASE OF NONLAWYER LOBBYISTS EMPLOYED BY LAW FIRMS IN WASHINGTON D.C.

Many Washington lobbyists are lawyers, and many are not. Until recently, lobbyists who are lawyers, and nonlawyer lobbyists employed by lobbyists, have not had a clear answer to whether the D.C. Rules of Professional Conduct apply to their work. They had been left to wonder: "If one doesn't need to be a lawyer in order to be a lobbyist, can lobbying constitute the "practice of law" ? And if not, apart from such basic obligations as complying with lobbying laws and avoid deceptive conduct, do legal ethics rules have any bearing on what they do?"

Notwithstanding the vital role of Washington as the U.S. central locus for lobbying activity, these basic questions festered for decades. Now, however, some guidance, or at least authoritative opinions exist and there are some clear and specific things that law firms need to do to ensure that they don't trip up.

The Unuathorized Practice of Law (UPL) Committee of the District of Columbia concluded that nonlawyers may engage in legislative lobbying in Washington D.C., without violating the prohibition against practicing law without a license. The committee wrote " In the Committee's opinion, U.S. legislative lobbying does not constitute the practice of law" reasoning that the client does not have a reasonable expectation that the lobbyist will provide legal advice.

So nonlawyer lobbyists who are not associated with a law firm and who do not in some fashion hold themselves out as lawyers, are not governed by the legal ethics rules, though as with all lobbyists, they must of course comply with the registration, disclosure, and other requirements established by Congress. Thus, pure lobbying firms, which don't create a false impression that they are practicing law, are unaffected by legal ethics rules.

The UPL opinion also addressed nonlawyer lobbyists who work in law firms and whether their presence in such firms may create a false impression on clients that they are lawyers. The committee suggested use of such titles as "government affairs specialist", "political consultant", or "legislative consultant" to negate that impression. The opinion also states that the nonlawyer lobbyists should be listed separately from the lawyers on firm Web sites. For firms whose Web sites permit searches of firm personnel only by names, the requirement to list nonlawyer professionals separately does not have a practical application because there are no real lists. Such distinct listings would apply only to postings such as in Martindale-Hubbell, in which various categories of persons may be presented. For firms whose Web sites permit searches by categories of professionals, the use of appropriate titles for nonlawyer professionals will lead to searches that distinguish lawyers from nonlawyers from the outset. Regardless, the opinion reminds all firms to review their Web pages to ensure that they avoid terms such as "counsel" or "legal advice" in reference to lobbyists who are not lawyers.