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Opinion #28. Duties of Attorney-Legislator and Partner Lobbyist
Issued by the Professional Ethics Commission
Date Issued: February 4, 1982
Questions
The Commission has been asked to render an advisory opinion on the ethical duties of an attorney-legislator, and of his law firm, to the general public and the firm?s clients, in the following situations:
One or more of the law firm?s clients may be affected, either favorably or unfavorably, by a proposed legislative action.
Another attorney from the law firm testifies at a public hearing and participates in a legislative committee?s work session in a general capacity as a citizen (not as a privately retained lobbyist for a specific client). It is assumed that some of the law firm?s clients would inevitably have some degree of interest in the legislative matter, such as changes in landlord‑tenant law, inheritance taxes, the Probate Code, workers? compensation laws, etc.
Another attorney from the law firm is employed as a registered lobbyist to represent a client?s interest in specific legislative measures.
Opinion
The Maine Bar Rules do not have a great deal to say about the conduct of attorneys as legislators. The only Rule directly on point is 3.2(d)[1], which is identical to DR 8‑101 of the ABA Code of Professional Responsibility. Commentary on that ABA Code provision indicates that its drafters were reluctant to go very far in developing a rule to regulate the conduct of an attorney as a legislator, believing instead that it is more appropriate for legislators to regulate themselves. See the Annotated Code of Professional Responsibility, 1979, page 382. The Maine Legislature has done this by enacting Subchapter II of Chapter 25, Title 1 M.R.S.A., entitled Legislative Ethics. The Legislature has also created the Commission on Governmental Ethics and Election practices, which is employed to interpret these provisions on legislative ethics and to issue advisory opinions thereon. Clearly, a full response to the questions presented must take these statutory provisions into account. Since it is beyond our authority to interpret these provisions, our response to the questions presented, limited as it must be to the applicability of Rule 3 of the Maine Bar Rules, will of necessity be incomplete.
Although we are not authorized to interpret Maine?s statutory provisions on legislative ethics, we believe the ?statement of purpose? set forth in Section 1011 of Title 1 is relevant to our interpretation of various Bar Rules as they relate to an attorney legislator and/or to his partners and associates. Section 1011 states, in part, the following:
The public interest is best served by attracting and retaining in the Legislature men and women of high caliber and attainment. The public interest will suffer if unduly stringent requirements deprive government ?of the services of all but princes and paupers.?
Membership in the Legislature is not a full‑time occupation and is not compensated on that basis; moreover, it is measured in 2‑year terms, requiring each member to recognize and contemplate that his election will not provide him with any career tenure.
Most Legislators must look to income from private sources, not their public salaries, for their sustenance and support for their families; moreover, they must plan for the day when they must return to private employment, business or their professions.
The increasing complexity of government at all levels, with broader intervention into private affairs, makes conflicts of interest almost inevitable for all part‑time public officials, and particularly for Legislators who must cast their votes on measures affecting the lives of almost every citizen or resident of the State. The adoption of broader standards of ethics for Legislators does not impugn either their integrity or their dedication; rather it recognizes the increasing complexity of government and private life and will provide them with helpful advice and guidance when confronted with unprecedented or difficult problems in that gray area involving action which is neither clearly right nor clearly wrong. M.R.S.A. Section 1011.
It is with these considerations in mind that the Commission now takes this opportunity to offer some general guidance on provisions of the Maine Bar Rules as they apply to an attorney‑legislator and to other lawyers in his firm.
Situation No. 1: Attorney‑legislator as member of a law firm which has one or more clients that may be affected, either favorably or unfavorably, by a proposed legislative action.
Rule 3.2(d)(1) requires that an attorney‑legislator shall not:
(1) Use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows, or it is obvious, that such action is not in the public interest; (emphasis supplied)
As noted by the ABA Committee on Ethics and Professional Responsibility (in its interpretation of DR 8‑101, which is identical to our Rule 3.2(d)):
The CPR [Code of Professional Responsibility] does not define ?special advantage? or ?not in the public interest.? We cannot, however, construe subd. 1 as being a blanket prohibition against the representation by a lawyer‑legislator of clients who may be affected by the defeat or passage of proposed legislation, for two reasons: (1) if the committee that drafted the Code had desired for it to include such a blanket proscription, that committee could and would have simply stated that a lawyer while serving as a member of a legislature shall not represent a client who is likely to be affected by the passage or defeat of proposed legislation; and (2) to interpret subd. 1 as constituting such a blanket proscription would make it a drastic measure, for there would be extremely few clients whom the lawyer‑legislator could represent. Accordingly, we think that ?special advantage? refers to a direct and peculiar advantage, and ?not in the public interest? refers to action (or legislation) clearly inimical to the best interests of the public as a whole . . . Thus it is apparent that a disciplinary action under DR 8‑101(a)(1) may involve several fact issues, such as whether there was a special advantage for the client or whether the action was in the public interest. (emphasis supplied) ABA Informal Opinion No. 1182 (1971).
We agree with this reasoning, particularly in light of the statement of purpose of our Legislature as quoted above, and we adopt this approach with regard to Rule 3.2(d)(1) of the Maine Bar Rules. We believe a similar approach is warranted with regard to Rule 3.2(d)(3), which provides that an attorney‑legislator shall not:
(3) Accept any thing of value from any person when the lawyer knows, or it is obvious, that the offer is for the purpose of influencing his action as a public official. (emphasis supplied)
Again, we do not read this Rule as a blanket prohibition against acceptance by an attorney‑legislator of compensation for services rendered (by him or his firm) from clients likely to be affected by the passage or defeat of proposed legislation. Only in those cases where payments are made ?for the purpose of influencing his actions as a public official,? and where the attorney ?knows? this, or cannot deny knowing it because the purpose of the payment ?is obvious,? do the strictures of this Bar Rule come into play. We believe the factual questions noted above with regard to both 3.2(d)(1) and 3.2(d)(3) must of necessity be dealt with on a case‑by‑case basis, in the context of disciplinary proceedings, and should not be discussed in any detail by positing various hypotheticals in an advisory opinion.
Another aspect to be considered here involves the ethical obligations of the attorney‑legislator to his clients.[2]Rule 3.6(a) requires that a lawyer ?employ reasonable care and skill and apply his best judgment in the performance of his services? for a client. Implicit in this Rule is the duty to avoid conflict of interest situations where the exercise of a lawyer?s independent professional judgment on behalf of a client will be, or is likely to be, adversely affected. See Rules 3.4(b) and 3.4(c). Whenever such situations arise, Rule 3.5(b)(2)(ii) mandates withdrawal from such representation, and Rule 3.4(k) extends this requirement to all partners and associates of the lawyer involved.
Applying these rules to an attorney‑legislator, the Commission believes that mandatory termination of representation of a client should only occur in those rare cases where the legislator?s public responsibilities will, or are likely to, adversely affect his independent professional judgment on behalf of the client. This would normally not occur simply by virtue of the fact that the client may be affected by proposed legislative action, since almost all citizens or residents of the State are affected to one degree or other by most legislation. For example, the fact that an attorney‑legislator might be considering or even proposing probate law reform would not normally preclude him and other members of his law firm from handling the administration of an estate with independent professional judgment and complete loyalty to the client involved. The Commission does not propose to posit examples where this would not be the case, preferring instead to treat specific situations as they arise, in the context either of disciplinary proceedings or requests for advisory opinions.
Also of relevance to the situation presented is Rule 3.4(a), which provides:
(a) Disclosure of Interest. Before accepting any professional employment a lawyer shall disclose to the prospective client his relationship, if any, with the adverse party; his interest, if any, in the subject matter of the employment; all circumstances regarding his relationship to the parties; and any interest or connection with the matter at hand that a lawyer knows or reasonably should know would influence the client in the selection of a lawyer. (Emphasis supplied.)
We interpret this Rule to require disclosure to any prospective client of the attorney‑legislator?s firm in cases where the duties owed to his constituency and the citizens of Maine would cause him to have an interest or a connection with the matter at hand that could influence the client in the selection of the lawyer. As stated in the Reporter?s Notes to Rule 3.4(a), this Rule seeks to mandate complete disclosure of all facts that could possibly be relevant to the subject issue. This then provides the client with information to make a judgment on the retention of an attorney. Accordingly, if the attorney‑legislator?s activities in the Legislature have more than a general connection with the subject matter of the representation of the client, these activities would have to be disclosed in detail before employment could be accepted.
Similarly, Rule 3.4(f) provides that:
Except with the informed written consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of the client will be, or reasonably may be, affected by any interest of the lawyer.
As pointed out in the Reporter?s Notes, the term ?any interest? as used in this Rule includes any form or nature of interest, including political or personal interests. However, the interest must be such that it will, or reasonably may, affect the attorney‑legislator?s professional judgment on behalf of the client. Whenever that is the case, then no lawyer in the firm can accept the employment without first obtaining the client?s informed written consent after full disclosure. See Rule 3.4(k).
In making the disclosures required by Rules 3.4(a) and 3.4(f), and in obtaining the client?s consent pursuant to Rule 3.4(f), the attorney involved must also be sensitive to the strictures of Rules 3.6(k) and 3.9(b)(5) about implying improper influence.
Situation No. 2: Another lawyer in the firm (as a private citizen and not as attorney or lobbyist for any specific client or group of clients) testifies at a public hearing and participates in a legislative committee?s work session.
The Commission sees no ethical impropriety in this situation of an attorney participating in the legislative process as a private citizen, even though the legislation being discussed would inevitably have some impact on some of his firm?s clients, so long as the relationship between the attorney in question and the attorney‑legislator is promptly and fully disclosed. In fact, such involvement in the legislative process by attorneys acting as private citizens is to be encouraged. (See EC 8‑1, ABA Code Professional Responsibility.) Clearly, the duty of loyalty to a client does not require that an attorney, when acting as a private citizen, remain a spokesman for his client?s interests. On the other hand, if the attorney?s personal political viewpoint is such as to affect the exercise of his professional judgment on behalf of the client, then the requirements of Rules 3.4(a) and 3.4(f) come into play (see above).
With regard to the attorney‑legislator himself, his ethical duties in this situation are covered by the statute on Legislative Ethics.
Situation No. 3: Another lawyer in the firm is employed as a registered lobbyist to represent a client?s interest in specific legislative measures.
Because of the impact of Rule 3.4(k), the threshold question here must be: can an attorney‑legislator also work as a registered lobbyist to represent a client?s interests in specific legislative measures? Clearly, that question must be answered in the negative. Such employment would be diametrically in conflict with the ethical standard set forth in Rule 3.2(d). It would also create a classic conflict of interest under Rules 3.4(b) and 3.4(c). Since the attorney‑legislator himself could not be employed as a lobbyist before the legislature, neither can any of his associates or partners be so employed. Rule 3.4(k). See Opinion 415, New York State Bar Association Committee on Professional Ethics (October 6, 1975). [Back to Index]
1 Acts as a Public Official. A lawyer who holds public office shall not:
(1) Use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows, or it is obvious, that such action is not in the public interest;
(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client;
(3) Accept any thing of value from any person when the lawyer knows, or it is obvious, that the offer is for the purpose of influencing his action as a public official.(Back)
[2] We do not believe the general public should be considered a ?client? of the attorney‑legislator for purposes of applying the Maine Bar Rules, and we do not treat it as such in this opinion. Again, the primary source of rules of conduct for an attorney serving as a legislator is the statute on Legislative Ethics referred to above.
