Is a lawyer who works as a lobbyist rather than practicing law still bound by the Rules of Professional Conduct, and can he later lobby against a former lobbying customer on the same issue?

Plain-English summary

A lawyer co-owned a lobbying firm with nonlawyers and had no private law practice. The firm lobbied for Customer A against Customer B's legislative goals; the engagement letter promised "governmental services," was silent on legal services, and did not disclaim an attorney-client relationship. The firm's website touted the lawyer's legal experience, and the lawyer prefaced advice to A with phrases like "as a lawyer, I think you should...." After A's engagement ended, the firm took on B to lobby the same issue, telling A that Rule 1.9 did not apply.

The opinion concludes that a lawyer stays subject to the Rules of Professional Conduct even while working in another field, so the rules reach this lawyer's lobbying work. Their precise application depends on context: Rule 4.2 applies only when "representing a client," while Rule 8.4 can be violated with no client at all. The key question is whether an attorney-client relationship formed. Using the Unauthorized Practice Rules' definition (furnishing advice or service implying use of legal knowledge), the committee is sympathetic to A's impression that it had. When a lawyer provides nonlegal services to a customer who knows he is a lawyer, the lawyer has an affirmative duty to clarify the boundaries of the relationship unless the services plainly have no connection to legal training. If the lawyer fails to do so and creates confusion, a business customer may be deemed a legal client for purposes of Rule 1.6 confidentiality and Rules 1.7 and 1.9 conflicts, depending on whether the lawyer held himself out as an attorney, offered confidentiality, and gave legal advice.

On the firm, the committee holds the Rules do not extend to entities, so the lobbying firm is not governed by them, though Rule 5.4 bars the lawyer from owning or working for a nonlawyer-owned entity that provides legal services to the public, and assisting such a firm in providing legal services would aid the unauthorized practice of law. On the final question, Rule 1.9 does not stop the lawyer from lobbying for B if A and B were only lobbying customers and not legal clients; but if his conduct created a reasonable understanding that A was a legal client, he may take B's work only if it does not conflict under Rule 1.9. Any such conflict would not be imputed to the nonlawyer firm employees under Rule 1.10.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a lawyer working as a lobbyist is still subject to the Rules, and bears an affirmative duty to clarify that nonlegal-business customers are not legal clients. Per the opinion, where the lawyer fails to dispel confusion and the customer reasonably believes he is "his lawyer," Rule 1.6 confidentiality and Rules 1.7 and 1.9 conflict duties can apply to the business relationship; the lobbying entity itself is outside the Rules, but Rule 5.4 limits the lawyer's involvement with a nonlawyer-owned firm that provides legal services.

Common questions

Q: Is a lawyer who works only as a lobbyist still bound by the ethics rules?

A: Yes. The opinion concludes a lawyer remains subject to the Rules of Professional Conduct even while working in a nonlegal field such as lobbying, though which rules apply depends on the context.

Q: Can a lobbying customer be treated as a legal client?

A: Per the opinion, if the lawyer held himself out as an attorney, offered confidentiality, or gave legal advice and failed to clarify the relationship, the customer may be deemed a legal client for Rule 1.6 confidentiality and Rules 1.7 and 1.9 conflicts.

Q: Can the lawyer later lobby for the opposing customer on the same issue?

A: The opinion says yes if both were only lobbying customers, because Rule 1.9 is triggered by legal representation; but if the lawyer created a reasonable belief that the former customer was a legal client, he may take the new work only if it does not conflict under Rule 1.9.

Q: Can the lawyer co-own the lobbying firm with nonlawyers?

A: The opinion cautions that Rule 5.4 bars a lawyer from owning or working for a nonlawyer-owned entity that provides legal services to the public, and doing so could assist the unauthorized practice of law.

Background and rules framework

The opinion interprets the scope of the Rules as applied to a lawyer in a nonlegal business, drawing on a long line of ancillary-business LEOs. It applies Rule 1.6 (confidentiality), Rule 1.7 and Rule 1.9 (current- and former-client conflicts), and Rule 1.10 (imputation, which does not reach nonlawyer firm employees). It applies Rule 5.4 (professional independence; nonlawyer ownership) and references the Unauthorized Practice Rules' definition of the attorney-client relationship and Va. Code § 54.1-3904.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.4 / Virginia Rule 5.4 (professional independence; nonlawyer ownership)
• Model Rule 1.9 / Virginia Rule 1.9 (duties to former clients)
• Model Rule 1.6 / Virginia Rule 1.6 (confidentiality of information)
• Model Rule 1.7 / Virginia Rule 1.7 (concurrent conflicts; material limitation)

Statutes:

• Va. Code § 54.1-3904 (unauthorized practice of law a Class 1 misdemeanor)

Cases:

• In re Galahasini, 786 P.2d 971 (Ariz. 1990); In re Unnamed Attorney, 645 A.2d 69 (N.H. 1994); In re Leaf, 476 N.W.2d 13 (Wis. 1991) (lawyers disciplined for conduct in ancillary businesses)

Other opinions cited:

• Virginia ancillary-business LEOs (1764, 1754, 1658, 1647, 1634, 1368, and others)
• Maine Ethics Op. 158 (1997); Maryland Ethics Ops. 95-25, 93-19 (ethics rules extend to lobbying)

See also

• VA LEO 1843: Patent Lawyer Partnership With a Nonlawyer Agent
• ABA Formal Op. 499: Passive Investment in Alternative Business Structures
• ABA Formal Op. 91-360: Nonlawyer Partnerships and Extrajurisdictional Effect

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1819.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEGAL ETHICS OPINION 1819

CONFLICT OF INTEREST – LAWYER
WORKING AS LOBBYIST RATHER
THAN IN AN ATTORNEY CLIENT
RELATIONSHIP

You have presented a hypothetical situation in which a lawyer works for a lobbying
firm of which he is a co-owner with several non-attorneys. The lawyer does not have a
private law practice. The lobbying firm provides lobbying services at the Virginia
General Assembly as well as public relations services. The firm has a contract with
customer A to provide lobbying services, with the purpose to oppose the legislative goals
of B. Customer A believes that B’s legislative goals would allow B to compete unfairly
against A.
The engagement letter from the firm to customer A states that the firm will provide
governmental services. The letter is silent regarding legal services. The letter does not
state that no legal services will be provided and does not state that no confidential
attorney/client relationship will be formed. The firm’s website states that the lawyer “is
an attorney with many years of experience in both business and government” who has
“dealt successfully with many legal, governmental and other crises.” The website
describes that the firm provides “creative solutions when drafting legislation, monitoring
and testifying before committees and lobbying legislators and other governmental
officials.”
The firm and the lawyer actively provided services to customer A, including numerous
meetings with A and with other lobbyists, consultants and attorneys for A. In those
meetings, the lawyer and his firm were privy to A’s long term goals and short and long
term business plans.
Customer A knew that the lawyer was an attorney. The lawyer would frequently
preface remarks to A with comments like, “As a lawyer, I think you should emphasize
these issues.” Customer A believed that the lawyer’s skills were one of the elements of
governmental services to be provided by the firm, with the lawyer applying his legal
knowledge and training to the facts of the situation.
Customer A’s engagement with the firm ended with the end of the 2005 General
Assembly session. The firm has informed A that B has now engaged the firm to provide
it with governmental and public relations services, including lobbying on the exact same
issue as the work done for A. The firm has told A that Rule 1.9 (“Conflict of Interest:
Former Client”) does not apply to the lawyer or the firm. Customer A has expressed
concern about the lawyer’s use of information acquired from A.
In the context of this hypothetical scenario, you have inquired as follows:
1) Is lobbying or providing governmental relations services at the Virginia General
Assembly a non-legal ancillary business such as mediation?
2) Is the lawyer subject to the Rules of Professional Conduct, in circumstances where
he and the firm did not make it clear that there was no attorney/client relationship to
which the protections of the rules would apply?
3) If the lawyer is subject to the Rules of Professional Conduct, is the firm also subject
to the Rules?

4) Can the firm or the lawyer now represent Customer B on the same or a substantially
related matter in which B’s interests are materially adverse to A’s without A’s consent?
Your initial question is whether the lobbying services provided by the firm are a nonlegal ancillary business such as mediation. The phrase “non-legal ancillary business” is
not a term of art from the Rules of Professional Conduct. However, this committee has
discussed lawyers working in businesses ancillary to the practice of law in a number of
opinions. Discussion of those opinions and the application of the ethics rules to lawyers
with such businesses is discussed below in response to your other questions.
Your second question is whether the lawyer is subject to the Rules of Professional
Conduct, where he did not make clear to his customer that no attorney/client relationship
had been formed to which ethical protections would apply. In line with case law on the
subject1, the Committee has consistently opined that lawyers remain subject to the
authority of the Rules of Professional Conduct, even while working in other fields. See
1764 (attorney fee sharing with finance company); 1754 (attorney selling life insurance
products); 1658 (employment law firm/human resources consulting firm); 1647
(employee-owned title agency); 1634 (accounting firm); 1579 (serving as fiduciary such
as guardian or executor);1584 (partnership with non-lawyer); 1368 (mediation/arbitration
services); 1442 (lender’s agent); 1345 (court reporting); 1318 (consulting firm); 1311
(insurance products); 1254 (bail bonds); 1198 (court reporting); 1163 (accountant; tax
preparation); 1131 (realty corporation); l083 (non-legal services subsidiary); 1016 (billing
services firm); 187 (title insurance). Accordingly, the Committee opines that the scope of
the Rules of Professional Conduct similarly extends to a lawyer working as a lobbyist for
a lobbying firm.2
The Committee sees a need for clarification of this general proposition regarding the
scope of the rules. While the rules do apply to this attorney’s lobbying activities, the
precise application will not necessarily be identical to that for the provision of legal
services to a client. For example, the restriction on contact with a represented person
created in Rule 4.2 applies only where “representing a client.” In contrast, Rule 8.4’s
prohibition regarding certain criminal or deliberately wrongful acts could be violated
without any client involved whatsoever. Thus, while an attorney’s conduct is always
subject to the authority of the Rules, the precise application will always depend on which
rules are pertinent to the specific context in question.
The facts of the hypothetical scenario, for instance, give rise to a particular ethical issue:
whether an attorney/client relationship was actually formed. This Committee has
previously relied upon the following definition from the Unauthorized Practice Rules3:
1

See, e.g., In re Galahasini, 786 P.2d 971 (Ariz. 1990) (suspending lawyer who failed to supervise lay
employees working on contract for debt collections agency that used his law letterhead and name on door,
answered business phone as if it were his law office, and improperly solicited client’s using his name); In re
Unnamed Attorney, 645 A.2d 69 (N.H. 1994) (lawyer disciplinary agency had authority to conduct random
audits of financial records of lawyer’s title insurance company or which lawyer was a majority shareholder);
In re Leaf, 476 N.W.2d 13 (Wis. 1991) (suspending lawyer for referring clients to “life-style management”
business in which lawyer had an interest without disclosing that interest to clients, for misrepresenting
employment status of non-lawyer employee of business and for assisting non-lawyer in unauthorized
practice of law).

2

Other states have also extended ethical responsibilities to lobbying work. See, e.g., Maine Ethics Op. 158
(1997) ; Maryland Ethics Op. 95-25; Maryland Ethics Op. 93-19.
3
See Rules of Supreme Court of Virginia, Pt. 6, §I, Preamble.

Generally, the relation of attorney and client exists, and one is deemed
to be practicing law whenever he furnishes to another advice or service
under circumstances which imply this possession and use of legal
knowledge or skill.
Did this lawyer create an attorney/client relationship with Customer A? The facts
suggest that the lawyer and A disagree on that point. The facts include a contract for
lobbying services but also a website offering the expertise of a lawyer and customer
advice expressly prefaced on that legal expertise. While neither the lawyer, nor the firm,
may have intended to establish an attorney/client relationship, the Committee is
sympathetic to A’s impression to the contrary. When a lawyer establishes a relationship
to provide other than legal services and the customer knows he is a lawyer, the lawyer
must be cognizant of this opportunity for confusion. Unless the services clearly have no
connection to legal training and expertise (e.g., a lawyer-owned restaurant), the lawyer
should accept an affirmative duty to clarify the boundaries of the business relationship.
The Committee suggests that such a duty is present in many nonlegal endeavors: for
example, mediation, financial planning, and, as in the present hypothetical, lobbying
services. This affirmative duty belongs on the part of the lawyer, rather than the
customer, in that the lawyer is in the more informed position regarding the nature of his
services and the details of the ethical rules.
Where a lawyer has failed to act on this duty and allowed for confusion regarding
whether or not he and the customer are in an attorney/client relationship, the attorney
may not be able to avoid the application of certain rules creating obligations and conflicts
usually associated with attorney/client relationships. Specifically, a lawyer may find that
for purposes of the protection of confidentiality under Rule 1.6 and for conflicts under
Rules 1.7 and 1.9, a business customer may be deemed a legal client if the customer had a
reasonable understanding in the situation that he was working with “his lawyer.”
Whether or not Customer A has that sort of reasonable understanding, despite the
lawyer’s assertion to the contrary, could only be determined based on more detailed facts
than provided in the hypothetical. Nevertheless, the Committee reads those facts
provided as definitely giving rise to the possibility. Critical factors for that determination
would include whether the lawyer held himself out as an attorney, whether he offered
attorney/client confidentiality, and whether he provided any legal advice.
Your third question asks: if the lawyer is subject to the Rules of Professional Conduct,
do the rules apply to the lobbying the firm as well? In the discussion of Question Two,
above, the Committee responded that the lawyer is subject to the Rules while working as
a lobbyist. However, this does not mean that the lobbying firm is also governed by the
Rules. The scope of the Rules of Professional Conduct is conduct of members of the
Virginia State Bar. The Rules do not extend to entities, including this lobbying firm.
However, the Unauthorized Practice Rules do apply to the lobbying firm; while outside
the purview of this Committee, the Committee notes that a non-legal entity cannot
properly provide legal services to the public, even through an attorney employee. See
UPL Op. ## 177, 57. The Committee also cautions the lawyer that Rule 5.4
(“Professional Independence of a Lawyer”) precludes him from owning or working for an
entity with non-lawyer owners if such entity provides legal services to the public. Under
the limited facts provided in the hypothetical, the Committee has not concluded that legal
services are being provided by the lobbying firm. Therefore, the Committee does not
opine whether the lawyer, and this firm, crossed this impermissible line regarding the
unauthorized practice of law. The Committee simply cautions that this attorney, in
working for this lobbying firm, must be vigilant that he not assist his employer in

improperly providing legal services to the customers. Were he to do so, he would not
only be in violation of Rule 5.4 but also would be assisting the lobbying company in the
unauthorized practice of law, a Class 1 misdemeanor pursuant to Virginia Code §54.13904.
Your final question is whether either the firm or the lawyer can now represent
Customer B in the same or a substantially related matter to the work done for A, absent
A’s consent. As the hypothetical includes the statement that the lawyer has no private
practice of law, the Committee assumes that your question regarding representing
Customer B is intended for the lobbying services of the firm and not legal representation.4
As discussed with regard to Question 3, above, the Rules of Professional Conduct do not
apply to the firm; therefore, this specific question regarding the firm’s work for Customer
B is outside the purview of this Committee.
With respect to the lawyer, Rule 1.9, regarding conflicts involving former clients, does
not prohibit the lawyer from providing lobbying services to Customer B so long as
Customers A and B were solely lobbying customers and not legal clients, as discussed
earlier in this opinion. The conflict that arises when a lawyer represents a client adverse
to a former client in a substantially related matter is triggered when the lawyer provides
legal representation to a new client in that matter. If the lawyer is not creating
attorney/client relationships with these customers, Rule 1.9(a) is not triggered. However,
if the lawyer has through representations made to these customers created a reasonable
understanding that they are his legal clients, then he can only perform this new work for
B if not in conflict with his former work for A, pursuant to Rule 1.9(a). Nevertheless,
even if the lawyer’s conduct in dealing with Customer A supported a reasonable belief
held by Customer A that that an attorney-client relationship existed, a conflict under Rule
1.9 would not be imputed to the other employees of the lobbying firm since they are not
lawyers and the lobbying firm is not a law firm. See Rule 1.10.
In sum, the ethical responsibilities flowing from this lawyer’s work with the lobbying
firm do derive from the Rules of Professional Conduct. The precise application of those
provisions depends on the nature of the relationship between the lawyer and his
customers and how it was presented to the customers. For a lawyer to avoid the
confidentiality and conflict-avoidance duties of Rules 1.6, 1.7 and 1.9 with a business
customer, he must ensure that the customer understands that he is not legally represented
by the lawyer.
This opinion is advisory only, based on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
September 19, 2005

4

If this attorney did have a private practice in addition to his lobbying employment, he would need to be
cognizant of Rule 1.7 (a)(1), which creates a concurrent conflict of interest where “there is a significant risk
that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to
… a third person.” If he has any contractual duties of loyalty or confidentiality to Customer A from the
lobbying contract, that contractual duty could constitute “responsibilities to … a third person” and trigger a
potential conflict of interest were he to represent Customer B as a client of his law practice. The
Committee notes that any such conflict under Rule 1.7 would be imputed, via Rule 1.10, to all members of
the lawyers law firm.