Lawyer Exceptions and Preferential Treatment

According to an editorial in the Press Democrat, 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. (San Jose is currently considering an amendment to its lobbying ordinance, which would exempt nonprofits from paying the registration fee.)

The proposed lobbying ordinance makes an exception for attorneys. Considering that most lobbyists are attorneys, such an exception would seriously undermines the ordinance.

This gets back to the special treatment of attorneys, which I discussed in a recent blog post. 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.

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.

I looked at some other California cities with lobbying ordinances, and found that none has an overriding exception for lawyers. The closest is Oakland, which has the following exception to the definition of "lobbyist," a partial exception that includes two other professions, as well.

§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.

This is more a public meeting exception than it is an attorney exception. Public meeting exceptions are fairly typical.

San Francisco 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":

§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.

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. San Diego more clearly separates out this second part in §27.4004(e), an exception to the ordinance itself.

Los Angeles and San Jose (Art. 12, Ch. 12) have no exception for lawyers of any kind.

The Press Democrat editorial criticizes the idea of exempting attorneys from registering as lobbyists, and shows how this would have affected a situation I discussed in a recent blog post. The editorial supports the Oakland approach, that is, a public meeting exception.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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