LAWYER-LOBBYISTS VS NON-LAWYER LOBBYISTS

Lobbyists able to marshal detailed information and arguments about difficult text in a proposal offer an invaluable service . They play a very important role in making sure that EU Commission personnel and Members of the EP and their staffs have all the information on any issue of importance.

With all the duties a given EU Commission Chief of Unit or an  MEP office is called upon to perform, thoroughly researching every issue and analyzing the effects of each piece of proposed legislation may be beyond the capacity of the average staff to handle. Lobbyists fill the gap by offering some of these services, including fact-finding, giving someone’s perspective, giving a business perspective, sharing how much legislation will impact a certain sector of the economy or a country.

When interested parties look for representation in Brussels are they better served by individuals who are lawyers , or is 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 EU decision making process. Others say what matters is access to decision makers, which has no particular connection to legal training.

Many Brussels lawyers work full- or part-time as lobbyists. The roles of lawyer and lobbyist 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 lobbyist is seeking to solve problems for his or her client at the EU level rather than the courts.  

A law degree is by no means a prerequisite for a competent lobbyist. Other abilities, such as substantive knowledge and political savvy, are far better indicators of success. Many of the best lobbyists in Brussels are not lawyers.

If legal expertise is no guarantee of lobbying ability, what does a lawyer bring to lobbying that a non-lawyer does not? The basic difference between lawyers lobbying versus nonlawyers lobbying is substantive ability. There are two advantages for lobbyists with legal training. Oftentimes lobbying questions are decided by procedural issues, and the lobbyist that knows the procedure and knows how to use the procedure to his or her advantage has an edge over everyone else. It’s the same for a lawyer, of course. Legal education teaches you about the importance of procedure and how to use procedure. Secondly, there is a systematic approach, which legal education teaches you for resolving clients’ issues. The systematic approach works very well in lobbying.

Perhaps the most indispensable quality of a successful lobbyist is a passion for politics and working on the legislative process.

Today numerous law firms have lobbying and government relations practice areas, with varying fields of expertise. Lawyers and non-lawyers may staff positions in these practice areas. Moreover, the tasks undertaken by these employees frequently overlap.

What is the difference between lawyer and non-lawyer lobbyists, or between a law firm and a lobby firm? 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 lobbying strategy and expertise is probably their strongest selling point. Lawyers don’t approach an issue with a preconceived notion that it’s a lobbying issue or a litigation issue or a regulatory issue. They try to approach the issue from all sides.

Lawyers have an advantage in that they may have prior relationships with a lot of clients through the legal setting. But it’s a night-and-day difference between the two fields, and a sophisticated client can understand very easily that it can get contract work from a law firm and get its lobbying done by someone else.

Having a lobbying practice within the firm may also affect recruitment of non-lawyers, particularly those with government experience but lacking a law degree. Non-lawyers may not have an ownership interest in a law firm; this limits their ability to act in a governing capacity and share in profits.  

A complex matrix of rules, unspoken norms, and ethics rules regulate lobbyists’ behavior, with varying degrees of success. Lawyers who do any lobbying must consider the ramifications of legal ethics rules on their work. Lobbying, by itself, is not the practice of law. Many situations, however, would warrant the application of legal ethics rules to lobbying activity by lawyers. Failure to satisfy those standards can result in a reprimand, or worse. This is particularly true in cases of lawyer-lobbyists working out of law firms—implications for the entire firm must be taken into consideration.

Lobbyists 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 insurmountable 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 lobby in a position conflicting with the client’s position. There are two kinds of conflicts. One kind is a real legal conflict where two clients are suing each other or are on opposite sides of a transaction. This conflict is often waivable under the canons of ethics where each client can consent. Then you have business conflicts, which are not real legal conflicts. There are certain industries that are so competitive that getting conflict waivers from them is very, very difficult. 

In many ways, adherence to these rules benefits the firm and the client. At the end of the day, they actually help the client more than they hurt the lobbyist. If a law firm is going to be your lobbyist, you know the Bar rules are going to put the firm in a position—assuming that the firm is scrupulous—without divided loyalties on an issue.

Rules enforcement aside, lobbying behavior is most comprehensively regulated through informal means. In lobbying, credibility and reputation are the coin of the realm—a lobbyist cannot be effective if his contact believes him untrustworthy or unprepared. Missteps in integrity or information can be disastrous for a lobbyist’s career. If someone goes to the EU institutions with an incredible document, or a highly slanted document, or a document that isn’t backed up by good research and credible analysis, then he or she will lose credibility as a lobbyist. The most important commodity a lobbyist has is credibility. The more you disclose, the less of a cloud there is over lobbying and the more comfortable people will be with it.