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VSB plans to review again Lawyer-legislator conflicts

The Virginia State Bar is proposing to expand its disapproval of lawyer-legislators getting into business with lobbyists.

The VSB is asking for comment on a proposed legal ethics opinion that would advise against any state lobbying by a consulting firm if a lawyer-legislator joined the firm.

Existing guidelines already bar lobbying by a law firm if a state legislator practices at the firm. The rule discourages lawyer-legislators from working at large firms, since those firms would be effectively barred from lobbying work.

The new proposal – LEO 1884 – simply applies the same rule to law firm-owned lobby shops as it does to law firms themselves.

The VSB proposal recalls a debate that emerged in 2007 when the VSB’s standing committee on legal ethics proposed to eliminate the blanket disapproval of lobbying by law firms with legislators on board.

The proposed change would have called for examination of individual cases to test for an unfair advantage by a lawyer-legislator.

Most of those who commented at the time opposed any change in the bar’s position, which puts Virginia among the most restrictive states on conflicts of interest by lawyer-legislators.

Facing opposition, the bar dropped its 2007 reform plan later that year.

VSB Ethics Counsel James M. McCauley says it’s still his view that the blanket rule is too rigid.

“It assumes without any proof that cronyism and foul play is going to occur merely because a law partner sits in the General Assembly,” McCauley said.

Advocates for the bright-line rule say it’s difficult to test for improper influence behind a firm’s closed doors.

The newly proffered LEO presents a situation in which a General Assembly member considers joining a consulting firm that is owned by a Virginia law firm. At the consulting firm, lawyers and non-lawyers lobby on matters before the state and federal legislatures.

The lawmaker wants to know if the Rules of Professional Conduct would preclude the consulting firm from lobbying the General Assembly if the lawmaker joined the consulting firm while remaining in the Assembly.

The ethics committee thinks the answer should be “yes.”

“The Committee concludes that there is no reason to distinguish between lawyers associated in a law firm and lawyers associated in a lobbying/consulting firm, as the public confidence concerns depend on the fact that the General Assembly member and the lobbyist are associated in the same firm, not on the nature of that firm’s business,” the draft LEO reads.

To conclude otherwise “would be to place form over function,” the panel said.

There are 26 attorneys in the 100-member House of Delegates and 17 attorneys in the 39-member Senate, according to information on the General Assembly website and from clerks’ offices.

Comments on proposed LEO 1884 should be submitted to VSB executive director Karen A. Gould at [email protected] no later than May 2.

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