How do the D.C. conflict-of-interest rules apply to a lawyer who lobbies, and can a lawyer-lobbyist avoid them by treating lobbying as a law-related service?

Plain-English summary

Opinion 344 (published July 2008) follows the D.C. Court of Appeals UPL Committee's conclusion (UPL Opinion 19-07, Dec. 17, 2007) that U.S. legislative lobbying is not the practice of law under Rule 49. A D.C. Bar member who lobbies then asked whether she has a Rule 1.7 conflict when she lobbies Congress for a tax break for Client X that she knows will directly disadvantage another client, Client Y. The Committee concludes that the D.C. Rules of Professional Conduct still regulate a lawyer's "lobbying activity," because Rule 1.0(h) includes "lobbying activity" in the definition of "matter." The same principles apply to lobbying of other legislative bodies and to executive-branch rulemaking and other matters of general policy.

On Rule 1.7, the opinion separates the prohibitions. Rule 1.7(a) bars a lawyer or firm from advancing two or more adverse positions in the same matter, including a lobbying matter; this prohibition cannot be waived. It is not triggered here, because the inquirer is not lobbying both sides of the same issue. Rule 1.7(b)(1), by contrast, does not apply to lobbying at all. That subsection reaches only a "matter involving a specific party or parties," a term of art the opinion traces to Rule 1.11 and to 18 U.S.C. section 207, where it excludes legislation, rulemaking, and the formulation of general policy. Because the same phrase must carry the same meaning across the rules, Rule 1.7(b)(1) does not bar a lawyer from lobbying for Client X's position even if Client Y holds an opposing position, where Y is unrepresented in the lobbying matter or represented by an unaffiliated lobbyist. The opinion notes that the text of the rule controls over any contrary suggestion in the comments.

The "punch-pulling" conflicts do apply. Rules 1.7(b)(2) and (b)(3) bar a representation that will be or is likely to be adversely affected by another representation (or that will adversely affect another representation), and Rule 1.7(b)(4) bars a representation where the lawyer's professional judgment may be adversely affected by responsibilities to or interests in a third party or by the lawyer's own interests. If the lawyer perceives a risk that she would pull her punches for Client X to avoid harming Client Y, Rule 1.7(c) requires her to reasonably believe she can provide competent and diligent representation and to obtain informed consent from the affected client; Y's consent may also be required. Under Rule 1.10, such conflicts are imputed across the firm, including to nonlawyer lobbyists, subject to the personal-interest exception of Rule 1.10(a)(1).

Finally, the opinion explains how a lawyer or firm can place lobbying outside the conflict rules. Because nonlawyers may lobby, Rule 5.7 lets a lawyer treat lobbying as a "law-related service," but only on strict compliance: the client must receive clear notice that the services are not legal services and that the protections of the client-lawyer relationship (confidentiality and conflict-avoidance) do not apply. The lawyer bears the burden of showing reasonable measures were taken, and must keep any legal services separate from the law-related lobbying work; a sophisticated client may require less explanation than an individual.

In practice

Under the D.C. rules as they stood at the time of the opinion, a D.C. lawyer who lobbies is subject to most conflict-of-interest rules. The opinion concludes that a lawyer or firm may not advance opposing positions in the same lobbying matter (Rule 1.7(a), non-waivable), and must address "punch-pulling" conflicts under Rules 1.7(b)(2) through (b)(4) through informed consent where they arise, but is not subject to Rule 1.7(b)(1) for lobbying because lobbying is not a "matter involving a specific party or parties."

The opinion concludes that these restrictions are imputed across the firm, including to nonlawyer lobbyists, and that a lawyer or firm can remove lobbying from the conflict rules only by strict compliance with Rule 5.7, including clear notice that the work is not legal services and that client-lawyer protections do not apply. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Do the conflict-of-interest rules apply to lawyers who lobby?

A: The opinion concludes yes, for the most part. Rule 1.0(h) includes "lobbying activity" in the definition of "matter," so Rule 1.7 governs lobbying except where a particular subsection's language excludes it.

Q: Can a lawyer or firm lobby for opposite sides of the same issue with the clients' consent?

A: No. The opinion concludes Rule 1.7(a) bars advancing two adverse positions in the same matter, and this prohibition cannot be waived.

Q: Can a lawyer lobby for one client's position that another client opposes?

A: The opinion concludes Rule 1.7(b)(1) does not bar it, because lobbying is not a "matter involving a specific party or parties," where the other client is unrepresented in the lobbying matter or represented by an unaffiliated lobbyist. The "punch-pulling" conflicts of Rules 1.7(b)(2) through (b)(4) may still require informed consent.

Q: Can a lawyer-lobbyist avoid the conflict rules entirely?

A: The opinion concludes only by strict compliance with Rule 5.7 on law-related services, which requires clear notice to the client that the work is not legal services and that the protections of the client-lawyer relationship do not apply. The lawyer bears the burden of showing reasonable measures were taken.

Q: Do these restrictions reach nonlawyer lobbyists in the firm?

A: The opinion concludes that, absent special circumstances, the conflict restrictions also apply to other lobbyists in the same firm, including nonlawyers, through imputation under Rule 1.10 and the lawyer's responsibilities under Rule 5.3.

Background and rules framework

The opinion interprets D.C. Rule 1.0(h) (defining "matter" to include "lobbying activity"), Rule 1.7 (conflicts of interest, with Rule 1.7(a) non-waivable, the four subsections of Rule 1.7(b), and the consent mechanism of Rule 1.7(c)), and Rule 1.10 (imputed disqualification). It reads the phrase "matter involving a specific party or parties" in Rule 1.7(b)(1) by reference to Rule 1.11 (successive government and private employment) and 18 U.S.C. section 207, where the phrase excludes legislation, rulemaking, and general policy. Rules 5.3 (responsibilities regarding nonlawyer assistants), 5.4 (professional independence), and 5.7 (responsibilities regarding law-related services) frame how lawyers and firms may structure a lobbying practice.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.0(h) (definition of "matter," including lobbying activity)
• D.C. RPC 1.7, 1.7(a), 1.7(b)(1)-(4), 1.7(c) / Model Rule 1.7 (conflicts of interest)
• D.C. RPC 1.10, 1.10(a)(1) / Model Rule 1.10 (imputed disqualification)
• D.C. RPC 1.11 / Model Rule 1.11 (successive government and private employment)
• D.C. RPC 5.3, 5.4, 5.7 / Model Rules 5.3, 5.4, 5.7 (nonlawyer assistants; professional independence; law-related services)
• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality)

Statutes and regulations:

• 18 U.S.C. section 207 (post-employment conflict-of-interest restrictions; source of "specific party or parties")
• 5 C.F.R. section 2641.201; Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36,168 (June 25, 2008)

Cases:

• Dupont Circle Citizens Ass'n v. District of Columbia Board of Zoning Adjustment, 749 A.2d 1248 (D.C. 2000) (consistent meaning of a term across a statute)
• 1618 Twenty-First Street Tenants' Ass'n v. Phillips Collection, 829 A.2d 201 (D.C. 2003) (borrowed terms of art)

Other opinions cited:

• UPL Opinion 19-07, Applicability of Rule 49 to U.S. Legislative Lobbying (D.C. Ct. App. Committee on Unauthorized Practice of Law, Dec. 17, 2007)
• D.C. Ethics Op. 297 (2000); D.C. Ethics Op. 309 (2001); D.C. Ethics Op. 317 (2002)

See also

• OH BPC Op. 2020-008: Financial Planning by Lawyers
• ISBA Ethics Op. 97-07: Lawyer-Owned Notice Company
• ABA Formal Op. 93-377: Positional Conflicts
• DC Ethics Op. 356: Unidentifiable and Thrust-Upon Conflicts

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-344