LAWYER-LOBBYIST

Involvement of lawyers and law firms in public affairs is increasing through a number of activities and services that are directly or indirectly aimed at influencing regulatory and legislative developments and are, therefore, not dissimilar to those performed by lobbying firms. Large Brussels-based law firms all offer services aimed at influencing legislative developments under the heading of “Public Policy”; “Political Law” or  “Public Policy”, with the promise that they can help clients engage in the political and law making process to ensure that the needs of their business are understood and supported. The combination of legal expertise with lobbying knowledge sets them apart from others in the lobbying market. 

Law firms and lawyers are involved in public affairs in many ways. First, lawyers can be retained by companies, private individuals, associations, or non-governmental organizations (NGOs) to lobby on a project-by-project basis. In this capacity, lawyers help scout the terrain and identify policy targets to establish contact. Second, law firms situated in Brussels often specialize in areas such as competition law, intellectual property, and financial policy, which require close proximity to the EU bureaucracy. In this role, lawyers in Brussels-based law firms advocate their clients’ views to decision-makers they already know from prior experience in the same policy-making field. Third, lawyers may also engage in lobbying in their permanent occupations as in-house legal counsel to companies, trade associations or NGOs, where lobbying on behalf of the employer is part and parcel of the job description.

Public affairs services marketed by law firms, although offered under a rich array of labels, are similar to services offered by public affairs firms. The lawyer-lobbyist is a lawyer who has legal education and/or training and who sells his or her expert knowledge to help his or her clients manage relationships with legislators or regulators and to help them achieve regulatory change or clarification. As a term, legal lobbying refers to activities undertaken by a lawyer that are intended to influence legislators and regulators. Some examples of legal lobbying include drafting a response to a public consultation, identifying and communicating to decision-makers potential problems with respect to certain legal provisions, or setting up and/or accompanying a client to a meeting to discuss policy-sector developments.

Lawyer-lobbyists are a special breed among their lobbying peers, and to date they—and more broadly, the involvement of law firms in public affairs—have not attracted scholarly attention in the EU. The discussion about transparency concerns raised by lawyer-lobbyists has primarily been conducted by pro-transparency NGOs that are worried about the success with which lawyers attract clients who wish to influence policy-makers behind the scenes and who would rather not associate themselves with the unpleasantness of lobbying.  A tendency to overlook lawyers as potential lobbyists is not an omission made only at the EU level, but also in some Member States. In countries such as Portugal and Estonia, members of the legal profession are the primary providers of lobbying services

In the US, law firms offering lobbying services are very common. According to the Center for Responsive Politics, an American transparency NGO, eight of the twenty top lobbying firms are law firms, including the biggest two.

There are two situations in which activities concerning the provision of legal advice are included within the scope of the EUTR. First, legal advice falls within the EUTR when it consists of “the provision of support, via representation or mediation, or of advocacy material, including argumentation and drafting. Second, legal advice also falls within the scope of the EUTR when it can be understood as “the provision of tactical or strategic advice, including the raising of issues the scope of which and the timing of communication of which are intended to influence the EU institutions, their Members and their assistants or their officials or other staff.”

The EUTR makes a distinction between two lawyer roles, namely that of a legal expert and that of an advocate, even though in practice the lawyer-lobbyist sways between these roles. This oscillation between two roles is further underscored by the fact that the lawyer-lobbyist is often hired to offer both advocacy as well as expert lobbying. In the context of EU competition law, law firms “assisting a company on a specific case … would normally tend to offer also the complementary institutional monitoring services” in order to ensure that “the narrative” is consistent and in line with the overall legal strategy. If the case file entails some legal elements, it is probable that the client finds it easier to hire a lawyer or a team of lawyers who can handle both, rather than hiring two sets of professionals from a law firm and a public relations firm.

The issue of lawyer-lobbying is simultaneously simple and complex. Lobbying is a regulated business, and the fact that the lobbyist works in a law firm or knows the law does not exempt the lawyer from the rules. Lawyer-lobbyists are subject to the full requirements of the EUTR, including public disclosure of information about their clients, revenues, and so on. This is not merely a question of technical compliance, as transparency is a central concern for lobbying regulation and for the legitimacy of public decision-making more generally.

Note: 

Large Brussels-based law firms all offer services aimed at influencing legislative developments: Law firms are the biggest group of actors that have not signed up  in the EU Transparency Register (EUTR).  A search on the register reveals that in November 2020, there were 87 entries by law firms, less than one percent of the total number of registrations. Comparing the list of registered law firms with a list of 60 major Brussels-based law firms specializing in international and/or European law and policy reveals that only a quarter, 13 , have entered the register.  Most law firms in the EUTR cover small or medium-sized offices operating in one or two Member States. Most of the registered firms declare relatively little lobbying.