January 21, 1994
A lawyer employing a nonlawyer lobbyist shall make reasonable efforts to ensure that communications between the lobbyist and lobbyist clients, without regard to whether the firm also undertakes actual legal representation of the client, are protected to the same extent as if communicated within a client-attorney relationship.
References: MRPC 1.0, 1.6, 2.1, 3.1, 5.3, 5.5; RI-103, RI-104, RI-123, RI-125.
A law firm employs a nonlawyer to perform "lobbying services" for various "clients." Some of the lobbying clients receive legal services from the firm lawyers in addition to the lobbying services, while other lobbying clients receive exclusively lobbying services and never meet with the firm lawyers. The firm has asked whether the information exchanged between the lobbying clients and nonlawyer employee constitutes confidences and secrets under MRPC 1.6.
MRPC 1.6(a), (b) and (d) state:
"(a) "Confidence" refers to information protected by the client-lawyer privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
"(1) reveal a confidence or secret of a client;
"(2) use a confidence or secret of a client to the disadvantage of the client; or
"(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
". . .
"(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee." Emphasis added.
Communications to the agent of a lawyer are protected the same as if the communication were made directly to the lawyer. Moreover, the duty to protect and preserve client confidences is not dependent solely upon whether legal representation is ultimately provided. RI-123. For instance, the confidentiality protection of the ethics rules applies to the conduct of legal assistants while working under the direction of a lawyer and consultants employed by the firm. RI-123, RI-103.
While the inquiry is not specific enough to decipher exactly what services the nonlawyer lobbyist provides for the lobbying "clients," the fact that the firm has established an employment relationship with the nonlawyer would seem to implicate the obligations of the lawyer or firm outlined in MRPC 1.6(d) and MRPC 5.3 and 5.5. See RI-125. The rules appear to be broad enough to encompass any agent or employee of a lawyer or firm who somehow engages in the provision of services through the firm. RI-103. See also RI-104. MRPC 5.3 states:
"(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
"(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
"(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
"(1) the lawyer orders or, with knowledge of the relevant facts and the specific conduct, ratifies the conduct involved; or
"(2) the lawyer is a partner in the law firm in which the person is employed or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action."
The Committee opined in RI-104, "the law firm must take steps to ensure that conduct of the consultant is compatible with the professional obligations of lawyers." Similarly, in this situation, the lawyer or firm should take steps to ensure that the conduct of the nonlawyer lobbyist is compatible with the professional obligations of the lawyer, including the recognition of the sanctity of confidential communications.
The question arises whether the lobbying clients are actually clients of the firm for purposes of ethics rules. It is without question that those lobbying clients who also avail themselves of the firm's legal services must be considered clients for purposes of ethics rules. However, the same conclusion is not so easily made with respect to the lobbying clients who do not avail themselves of legal services and who never meet with the lawyers of the firm. As stated in the Comment to MRPC 1.0:
"Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact."
While the Committee generally does not review substantive questions concerning the manner in which nonlawyer lobbyists or other nonlawyer advocates conduct their activities, where those activities fall within the parameters of lawyer advice, MRPC 2.1, consultation or advocacy, MRPC 3.1, and are undertaken on behalf of a lawyer or firm, the Committee may conclude that the rules are applicable. RI-103.
Again, the limited factual background of the inquiry presents a barrier to full discussion of the nature of the relationship between the nonlawyer lobbyist and the lobbying clients. However, it is safe to assume that the nonlawyer lobbyist who is employed by the lawyer or firm offers suggestions, consultation, advice, and advocacy on behalf of the lobbying client. Such communications are made on law firm letterhead (on which the lobbyist's status is clearly designated), the lobbyist sees clients on law firm premises, and billings are presumably handled through the law firm accounting department. The law firm trust account may be used for lobbying client moneys. Where that is the case, and the lobbyist is employed by a lawyer or firm, the relationship is sufficient to invoke the provisions of MRPC 1.6. See RI-103, RI-104. Obviously, the lobbyist need not abide by the rules where no affiliation with a lawyer or law firm is present because a lobbyist need not be affiliated with or under the supervision of a lawyer to conduct lobbying activities. RI-103.