Lawyer Exceptions and Preferential Treatment
According to <a href="http://www.pressdemocrat.com/article/20100413/OPINION/100419839?tc=ar&q…; target="”_blank”">an
editorial
in the <i>Press Democrat</i>,</a> the city council in Santa Rosa
(CA), a city of about 150,000 north of San Francisco, has postponed
consideration of an ordinance requiring city lobbyists to register,
supposedly due to complaints from nonprofits who do not want to pay the
$120 fee. (<a href="http://www.sanjoseca.gov/clerk/CommissionBoard/Election/2010/20100414/e…; target="”_blank”">San
Jose
is currently considering</a> an amendment to its lobbying
ordinance, which would exempt nonprofits from paying the registration
fee.)<br>
<br>
The proposed lobbying ordinance makes an exception for attorneys.
Considering
that most lobbyists are attorneys, such an exception would seriously
undermines the
ordinance.<br>
<br>
This gets back to the special treatment of attorneys, which I discussed
in <a href="http://www.cityethics.org/content/circuit-judge-chicago-gets-government…; target="”_blank”">a
recent
blog post</a>. If a company hires an attorney to lobby city
officials, knowing that certain information is required by law to be
disclosed by lobbyists, the company effectively waives the
attorney-client privilege
and client confidentiality to the extent of the information required.
An attorney-lobbyist has no legal ethics problem providing this
information. An attorney-lobbyist is no different than any other lobbyist.<br>
<br>
An exception for attorneys would lead companies to only hire
only attorneys to lobby for them, since this would keep information
about the company's lobbying secret
from the public, including other city officials, state officials, and
federal officials, all of whom have an interest in much of what goes on
in city hall, because city, state, and federal money is involved.<br>
<br>
I looked at some other California cities with lobbying ordinances, and
found that none has an overriding exception for lawyers. The closest is
<a href="http://www.oaklandnet.com/government/public_ethics/LOBBYISTORDADOPTED.p…; target="”_blank”">Oakland</a>,
which
has the following exception to the definition of "lobbyist," a
partial exception that includes two other professions, as well.<br>
<ul>
§3.20.060(E). Any attorney, architect or civil engineer whose
attempts to influence governmental action are limited to: (1) Publicly
appearing at a public meeting, public hearing, or other official
proceeding open to the public; (2) Preparing or submitting documents or
writings in connection with the governmental action for use at a public
meeting, public hearing, or other official proceeding open to the
public; and (3) Contacting city or redevelopment agency employees or
agents working under the direction of the city manager or executive
director directly relating to 1. and 2. above.<br>
</ul>
This is more a public meeting exception than it is an attorney
exception. Public meeting exceptions are fairly typical.<br>
<br>
<a href="http://www.sfethics.org/ethics/2009/12/lobbyist-ordinance-2010.html" target="”_blank”">San
Francisco</a> has an exception that similarly covers other professions, as well, but it deals with a different issue. It is an exception to the
definition of "contact":<br>
<ul>
§2.105(d)(1)(C) A person performing a duty or service
that can be performed only by an attorney, an architect, or a
professional engineer licensed to practice in the State of California,
including any communication by an attorney in connection with
litigation involving the City and County or a claim filed pursuant to
Administrative Code Section 10.20-1 et seq.<br>
</ul>
Lobbying is not a service that can only be performed by an attorney.
The San Francisco exception is intended to cover instances involved in the second
part of the subsection,
that is, contacts involving litigation, which it means to distinguish from lobbying. <a href="http://docs.sandiego.gov/municode/MuniCodeChapter02/Ch02Art07Division40…; target="”_blank”">San
Diego</a> more clearly separates out this second part in
§27.4004(e), an
exception to the ordinance itself.<br>
<br>
<a href="http://ethics.lacity.org/pdf/laws/law_mlo.pdf" target="”_blank”">Los Angeles</a>
and <a href="http://sanjose.amlegal.com/nxt/gateway.dll/California/sanjose_ca/sanjos…; target="”_blank”">San
Jose</a> (Art. 12, Ch. 12) have no exception for lawyers of any kind.<br>
<br>
The <i>Press Democrat</i> editorial criticizes the idea of exempting
attorneys from registering as lobbyists, and shows how this would have
affected a situation I discussed in <a href="http://www.cityethics.org/content/vive-les-differences" target="”_blank”">a recent
blog post</a>. The editorial supports the Oakland approach, that is, a
public meeting exception.<br>
<br>
Whenever the attorneys who write laws (and often pass them, too)
exclude attorneys from a law, it should send up a red flag. Yes, there
are legal ethics issues in some matters, but often, as here, there is
not. Because lawyers know that the non-lawyers on a council will not
have a very deep understanding of legal ethics, they can use legal
ethics as a smokescreen to hide preferential treatment to
their profession (and to themselves after public service) that is not in the public interest.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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