Attorney-Client Protections Do Not Extend to Lawyers Providing Government Affairs Counseling in Non-Law Firm Settings

A December 10, 2015, joint decision from the Advisory Committee on Professional Ethics and the Committee on the Unauthorized Practice of Law (‘Committees’) provides clarity to lawyer-lobbyists working in non-law firm settings. Both Committees examined this issue after receiving an inquiry whether an attorney representing clients at a lobbying and government affairs services company that is not a law firm may use the designation “Esq.” after her name on company letterhead. The decision concludes that a lawyer may “associate with non-lawyers in lobbying and government affairs services companies, outside a law firm, provided the company communicates to their customers that they do not provide legal services or offer the protections of a lawyer-client relationship and the lawyers do not hold themselves out as acting in the capacity of lawyers.” The decision also directs attorneys, working in a non-legal setting, to not use the “Esquire” or “Esq.” designation.

As part of its analysis, the Committee on the Unauthorized Practice of Law determined that many of the activities associated with lobbying are the practice of law, but also determined that it is in the public interest to allow registered non-lawyers to provide these services as well. They felt that “potential harm was mitigated by the protections” of the regulatory framework under the New Jersey Election Law Enforcement Commission. A determination by the Committee that only lawyers could engage in lobbying activities would have drastically changed the manner in which lobbying is conducted in New Jersey.

The Committee on the Unauthorized Practice of Law’s analysis means that lawyers may work in a non-legal lobbying and government affairs company. The Advisory Committee on Professional Ethics determined that a lawyer may associate with non-lawyers and provide lobbying services at a non-legal business as long as they communicate to their clients that they do not provide legal services or offer the protections of a lawyer-client relationship. The Committees also explained that a lawyer may own a lobbying and government affairs services company with non-lawyers provided that the protections articulated above are in place.

The Committees’ decision represents an acknowledgment that some ambiguities exist with lawyers providing government affairs services to their clients. The decision blesses the current framework applicable to government affairs agents, while instituting an ethical requirement for lawyer-lobbyists to communicate to their clients that the company does not provide legal services or offer them the ethical and professional protections of a law firm.

Gibbons employs eight full time lawyer-lobbyists who, from the firm’s Trenton office located steps from the Statehouse in Trenton, New Jersey, provide government affairs representation to the firm’s clients.

The full text of the decision can be found here.

David J. Pascrell and Kevin G. Walsh are Co-Chairs of the Gibbons Government Affairs Department.
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