Under the Lobbying Disclosure Act, members of Congress are required to wait a certain period after they leave office before they are allowed to lobby. Former members of the House of Representatives are required to wait one year while former members of the Senate are required to wait two years.
However, “shadow lobbying” allows former members of Congress to bypass the restrictions set by the Lobbying Disclosure Act. Recent news reports have indicated that it is becoming common practice for former members of Congress to join Big Law firms as advisers or similar roles where they oversee lobbying and engage in advocacy to influence public policy which allows them to avoid registering as a lobbyist and nreporting their activities. This loophole is a direct obstacle to the goal of the Lobbying Disclosure Acts: transparency.
The Center for Responsive Politics reported of the 29 members of Congress that finished out their term in the 115th Congress, 15 have gone into the realm of public policy advocacy through law firms. Of those 15, only 6 are registered as lobbyists.
There are several reasons former Congress members may avoid registering as a lobbyist. For example, if the politician hopes to run for public office again, avoiding registering as a lobbyist prevents future opponents from labeling them as a “Washington lobbyist”. Another reason is that several Democratic candidates have publicly stated that they will repudiate all donations from registered lobbyists.
Despite the rationale, many have called for reform of the current lobbying disclosure rules to prevent the exploitation of this prevalent loophole.
Under a legal ethics perspective, “shadow lobbyists” raise several issues. It is well established that the Rules of Professional Conduct apply to attorneys while conducting lobbying activities. (See e.g., Colleen Glatfelter, Attorney-Lobbyists — Ethics Rules Apply, available at https://www.wakecountybar.org/blogpost/727449/288700/Attorney-Lobbyists—-Ethics-Rules-Apply) In fact, other than specific rules that apply only to the conduct of lawyers in the practice of law –for example, candor towards the tribunal, Rule 3.3 — the majority of the Rules of Professional Conduct apply to lawyers engaged in lobbying — confidentiality and conflict of interest, for example. In 2008 the DC Bar issued Ethics Opinion 344 (“Conflicts of Interest for Lawyers Engaged in Lobbying Activities that Are Not Deemed to Involve the Practice of Law”), available at https://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion344.cfm. If lawyers do not appear as lobbyists, their obligations in point of conflict of interest risk to be undetected.
As Julie Reynolds noted back in 2006 (Julie Reynolds, Lawyer Lobbyists, Washington Lawyer, January 2006, available at https://www.dcbar.org/bar-resources/publications/washington-lawyer/articles/january-2006-lobbyists.cfm), “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.” If lawyers do not recognize their role as lobbyists by “shadow lobbying”, this difficult intersection between the rules that apply to lobbying and the rules of professional conduct might be difficult to identify. In addition, managers of law firms must recognize that their general obligation to supervise lawyers and nonlawyers, see Rules 5.1 and 5.3, would include the conduct of lawyers who engage in lobbying, whether registered or shadow lobbing.
For more information, Nathan M. Crystal
