Legal Ethics in Representing Witnesses Before Congress

According to this Legal Times piece, Dickstein Shapiro has a problem with the House Committee on Oversight and Government Reform. Does it also have a legal ethics problem? The Legal Times relates:

Before beginning to question the five witnesses, committee chair Darrell Issa (R-Calif.) paused to criticize a Dickstein employee’s activities prior to the hearing. The employee—who was not identified, except as a female member of the firm’s lobbying group—“made multiple contacts to committee members and specifically asked them not to ask you questions,” Issa said.

Issa produced a copy of what he termed “a disturbing” email, with the sender’s name blacked out. It read: “If possible, please do not direct questions to Jonathan Silver…He’s a client of my firm. :)”

Issa said, “From the committee’s standpoint, the question is whether to refer this to the bar association, whether it’s an interference with Congress, which I find it to be.”

Rule 3.9 of the D.C. Bar Rules of Professional Conduct provides that “a lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3, 3.4(a) through (c), and 3.5.” The comments state that “[a] lawyer appearing before such a body should deal with it honestly and in conformity with applicable rules of procedure,” and “legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.”

Rule 3.5(a) provides that a lawyer shall not “seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.”

Rule 3.5(b) prohibits ex parte communications “during the proceeding unless authorized to do so by law or court order.”

Finally, Rule 3.5(d) prohibits a lawyer from “engag[ing] in conduct intended to disrupt any proceeding of a tribunal, including a deposition.”

Exactly how these provisions apply in the context of a congressional proceeding is a question that Bar Counsel has probably never faced before. In fact, my impression (confirmed by Jack Marshall at a recent seminar) is that even most legal ethics experts have never heard of Rule 3.9. But if the Dickstein employee is a member of the D.C. bar, or is supervised by a member of the D.C. bar responsible for her conduct, there would seem to be some serious ethics questions raised.


ABA Proposal for Lobbying Reform

The American Bar Association has approved a resolution calling for changes to federal lobbying regulation. (see this story in Politico). Interestingly, Politico quotes the head of the American League of Lobbyists as generally supportive of the resolution, except for the proposal to restrict campaign fundraising by lobbyists.

The ABA resolution stems from the report of the ABA Task Force on Lobbying Regulation, on which I served. The report of the Task Force, which was co-chaired by Trevor Potter, Charles Fried, Rebecca Gordon and Joe Sandler, can be read here.

Here is the actual resolution (h/t Rick Hasen, who also served on the Task Force).


Lobbying Ethics in Canada

Those interested in the subject of lobbying ethics may wish to take note of the Canadian Lobbying Code of Conduct, which has been in force since 1997.  Compliance with the code is monitored by the Commissioner of Lobbying, an independent officer of Parliament.  In the event that the Commissioner finds a violation, she sends a report to Parliament, which presumably may take action with regard to the violator. 

            The Canadian Lobbying Code sets forth three basic principles (integrity and honesty, openness, and professionalism) and eight specific rules.  Rule 8, which has been the subject of a recent interpretation by the Commissioner, provides that “[l]obbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.” 

            The Commissioner issued this opinion about a week ago, interpreting Rule 8 in the context of political or campaign activities by lobbyists.  The opinion starts with the proposition that a “conflict of interest may arise when a person engages in political activities that advance the private interest of a public office holder, while at the same time, or subsequently, seeking to lobby that public office holder [or the office holder’s department or staff].”  It then goes on to identify political activities that have a low risk of presenting such a conflict (merely voting in an election, putting up a yard sign or making a campaign contribution), those that present a medium risk of such a conflict (being a member of the office-holder’s constituency association, which I take it is like the local party organization that supports an MP, or having limited participation in the office-holder’s campaign), and those that present a high risk of conflict (organizing fundraising or chairing the office-holder’s campaign). 

            It is interesting that the Commissioner draws a distinction between merely making permissible campaign contributions, which is not thought to present a significant conflict, and “organizing fundraising,” which is.  The ABA Task Force on Lobbying Reform has been wrestling with a similar distinction. 

            My understanding is that the Commissioner’s opinion is controversial and could face legal challenges.

A Code of Lobbying Ethics

Tom Spulak, a well-respected congressional lawyer and a former House General Counsel (as well as a former colleague of mine at Shaw Pittman), wrote this recent piece on the “assault on lobbyists.”   Of particular interest to me is his suggestion that lobbyists could adopt a voluntary code of conduct that would prohibit questionable and/or controversial practices, such as providing campaign contributions to elected officials.

I think that this is a promising idea which is worthy of more public discussion.  It should be noted that Section 214 of the Honest Leadership and Open Government Act of 2007 expresses the sense of Congress that the lobbying community develop “proposals for multiple self-regulatory organizations” to, among other things, develop standards for lobbying and provide ethics training to the lobbying community.   Other than some occasional discussion over the last couple of years, there has been little response to date from the lobbying community to Congress’s call for action.

One possible objection to a voluntary code of ethics is that those who subscribe to it will be subject to a competitive disadvantage.  To alleviate this fear, there needs to be some formal recognition of the code.  For example, suppose the House and Senate Ethics Committees were to recognize a code of ethics for lobbying that would apply to both lawyers and non-lawyers. The ethical code for lawyers would be enforced by the bar, and for non-lawyers it could be enforced by a separate professional organization.  Under this regime, lobbyists who agreed to comply with the ethical requirements would be certified by the Ethics Committees as “professional policy advocates” and could so represent themselves in the course of their practice.  The Ethics Committees could de-certify individuals upon notification from the bar or professional organization of a rules violation.

No one would be prohibited from lobbying for failure to subscribe to this ethical regime, but both Members and executive agencies might think twice before dealing with uncertified lobbyists (and perhaps registered lobbyists who were not certified would be required to so state when they made lobbying contacts).  This regime would be consistent with the sense of Congress expressed in HLOGA.  It would also seem to mitigate the potential competitive advantage that would otherwise be enjoyed by unethical lobbyists.  Finally, it might cause some rethinking in the administration about the wisdom of branding all registered lobbyists as inherently unethical.

Lobbyist’s Invitation Raises Ethical Issue

            Via Election Law Blog and Political Activity Law comes this story from The Washington Times:  Senator Diane Feinstein cancelled a fundraiser after the lobbyist hosting it sent out an invitation using the Senator’s committee assignments as the theme for the event’s meal: 

Washington lobbyist Heather Podesta mentioned the intelligence committee in an e-mail invitation attached to a formal notice of the event, saying that the lunch at the upscale Charlie Palmer steakhouse in Washington would begin at noon. In the e-mail, she said donors who gave between $1,000 and $2,500 could order up “the Select Committee on Intelligence for the first course.”  

With a check “payable to Feinstein for Senate,” the e-mail said other courses include “your choice of Appropriations, Judiciary or Rules committees,” other panels on which she serves. 

What caught my eye from the article was this comment from Melanie Sloan, executive director of CREW.  Sloan is quoted as calling the invitation “audacious, but legal.”  She goes on to say: “By correlating a fixed-price menu with Sen. Feinstein’s committee assignments, Podesta does what most of Washington assiduously seeks to avoid — makes clear that members of Congress are for sale.”  

Now Podesta’s invitation clearly showed bad judgment and illustrates the kind of behavior that ethical lobbyists should strive to avoid.  To say that the invitation “makes clear” that Senator Feinstein is “for sale,” however, goes a bit far.  A more charitable explanation is that the invitation was intended as a humorous way of conveying the Senator’s committee assignments.  No doubt this was for the benefit of invitees with an interest in matters before those committees, but this is still a long way from suggesting that either the Senator or the committees are for sale.   

It should be noted that lobbyists, at least those who are lawyers (as Podesta is), have ethical obligations that go beyond what is merely “legal.”  If Sloan’s interpretation of the invitation were correct, it would seem that Podesta would have violated Rule 8.4 of the D.C. Bar Rules of Professional Conduct.  This rule provides that it is professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official.”   

It is a worthwhile caution for all lawyer-lobbyists to remember this rule, and to refrain from comments that can be interpreted as claiming an ability to improperly influence Members of Congress.