Ezel / Ethics Opinions / NVBAR
NVBAR August 18, 2014

Is a Nevada lawyer who is hired to provide lobbying services, rather than legal services, still bound by the Rules of Professional Conduct?

Short answer: The Committee concluded that a Nevada lawyer hired to act as a lobbyist is likely subject to the Nevada Rules of Professional Conduct, because legislative lobbying is sufficiently law-related, even though Nevada did not adopt ABA Model Rule 5.7. The fact that a non-lawyer can perform the same lobbying does not exempt the lawyer.

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This page answers the general question as of 2014. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2014
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

A Nevada lawyer asked how the Nevada Rules of Professional Conduct apply when a lawyer provides lobbying services, directly or indirectly. The Committee concluded that a lawyer hired to lobby is likely governed by the NRPC, because legislative lobbying takes advantage of a lawyer's legal training (researching, drafting, and interpreting legislation, and negotiating in the legislative process) and is therefore law-related rather than purely non-legal. The opinion contrasts a lawyer hired to write a symphony (not practicing law) with one hired to write a contract or statute (practicing law), placing lobbying closer to the latter.

The opinion notes that Nevada is among the states that did not adopt ABA Model Rule 5.7 on law-related services. A Nevada committee evaluating the 2003 rule changes recommended against adopting Rule 5.7, reasoning there was little problem in Nevada and that other rules already applied, and the Nevada Supreme Court accepted that recommendation. The Committee observes that even without Rule 5.7, a lawyer remains governed by Rule 1.8(a), which regulates business transactions with a client, and it cites authorities from other states that did not adopt Rule 5.7 but still hold lawyers to the rules while working in other fields, including Virginia LEO 1819 (lawyer-lobbyist) and Maine Opinion 158.

Drawing on those authorities and the Restatement (Third) of the Law Governing Lawyers, the opinion indicates that a lawyer seeking to exempt ancillary services from the NRPC would need the client's informed, preferably written, consent acknowledging that the lawyer is not acting as a lawyer, that the standard of care, confidentiality, conflict, and fee rules do not apply, that no attorney-client privilege attaches, and that no legal malpractice coverage applies, all within the overlay of Rule 1.8.

Applying these principles to the five questions, the Committee concluded: (1) NRPC 1.7 and 1.9 apply to a Nevada lawyer retained to provide lobbying services; (2) where the rules apply to a lawyer or firm, they apply to a non-lawyer employee or subsidiary (NRPC 5.2 and 5.3); (3) if a non-lawyer lobbyist is a true independent contractor, not owned or controlled by the firm, the NRPC do not appear to apply to that contractor; (4) on the Alpha/Omega hypothetical, the law firm's lobbying for one client against a non-lawyer independent contractor's client does not create a conflict imputed to the firm; and (5) the NRPC apply to an attorney retained by a lobbying firm regardless of whether the client is the lobbying firm or the entity that hired it.

In practice

The opinion holds that, under the Nevada rules as they stood at the time, a Nevada lawyer providing lobbying services is generally subject to the Rules of Professional Conduct, including the conflict rules (NRPC 1.7 and 1.9), even though Nevada did not adopt Rule 5.7. The opinion treats a lawyer's attempt to characterize lobbying as outside the rules as requiring, at minimum, the client's informed (preferably written) consent acknowledging the absence of the lawyer-client protections, within the framework of Rule 1.8.

Common questions

Q: Do the conflict rules apply to a lawyer hired only to lobby, not to give legal advice?

A: Yes. The opinion concluded that NRPC 1.7 and 1.9 apply to a Nevada lawyer retained to provide lobbying services, because lobbying is sufficiently law-related, and that the lawyer is held to the higher standard even though a lay person doing the same work is not.

Q: Does it matter that Nevada never adopted ABA Model Rule 5.7?

A: No. The opinion explains that even without Rule 5.7, a lawyer remains governed by Rule 1.8(a) on business transactions with clients, and it cites other non-adopting states (Virginia, Illinois, Maine) that still hold lawyer-lobbyists to the rules.

Q: Do the rules reach non-lawyer employees of a lobbying firm or a law-firm subsidiary?

A: Per the opinion, to the extent the NRPC apply to the lawyer or firm, they apply to a non-lawyer employee or subsidiary under NRPC 5.2 and 5.3. A truly independent non-lawyer contractor, not owned or controlled by the firm, does not appear to be covered.

Q: Can a lawyer treat lobbying as entirely outside the Rules of Professional Conduct?

A: The opinion indicates this would require the client's informed, preferably written, consent acknowledging that the lawyer is not acting as a lawyer and that the rules on competence, confidentiality, conflicts, fees, privilege, and malpractice coverage do not apply, all within the overlay of Rule 1.8.

Background and rules framework

The opinion interprets the Nevada Rules of Professional Conduct, particularly the conflict rules (NRPC 1.7 and 1.9), Rule 1.8(a) on business transactions with clients, and Rules 5.2 and 5.3 on responsibilities for subordinate lawyers and non-lawyer assistance, in a setting that ABA Model Rule 5.7 (responsibilities regarding law-related services) addresses elsewhere but that Nevada did not adopt. The analysis relies on out-of-state opinions and the Restatement (Third) of the Law Governing Lawyers, Section 10, comment (g).

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 5.7 (law-related services; not adopted in Nevada)
  • Model Rule 1.7 / Nev. RPC 1.7 (concurrent conflicts of interest)
  • Model Rule 1.9 / Nev. RPC 1.9 (duties to former clients)
  • Model Rule 1.8 / Nev. RPC 1.8(a) (business transactions with a client)
  • Model Rule 5.4 / Nev. RPC 5.4 (professional independence of a lawyer)
  • Model Rules 5.2, 5.3 / Nev. RPC 5.2, 5.3 (subordinate lawyers; non-lawyer assistance)

Cases:

  • In re Discipline of Singer, 109 Nev. 1117, 865 P.2d 315 (1993)

Other opinions cited:

  • Virginia LEO 1819 (09/19/05): lawyer working as a lobbyist for a lobbying firm
  • Maine Ethics Opinion 158 (April 1997): lawyer-lobbyist forming a firm with a lay person
  • Illinois Opinions 90-32 (1991) and 98-03 (1999): provision of law-related services

See also

Source

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