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Open Secrets?

Some Worry About Threats to Lobbyists’ Attorney-Client Privilege

K Street’s lawyer-lobbyists have always encouraged clients to speak to them with complete honesty, even about their most questionable activities. It doesn’t matter, they say: Everything they discuss is protected under attorney-client privilege.

But some clients are getting a little nervous about how rock-solid those protections actually are. Ongoing federal and Senate investigations into Jack Abramoff — a non-lawyer who worked as a lobbyist for two different law firms — have unearthed loads of embarrassing inter-office communications. And as the investigation into the Valerie Plame leak case shows, at least some federal prosecutors are no longer considering protected professions, in that case journalists, out of bounds for subpoenas.

Could non-lawyer lobbyists — or lawyers serving a client in a lobbying, rather than legal, capacity — also see their private discussions aired in public? K Streeters are nervously wondering whether a three-year-old federal court decision could upend the longstanding assumption of privilege.

Attorney-client privilege protects lawyers from being compelled to disclose all communications on legal advice that they have with their clients. The protection is designed to ensure sound legal advice by encouraging clients to speak freely with their attorneys.

The protection attaches so easily that even conversations between lawyers and clients at cocktail parties have been ruled to be privileged. As such, lawyer-lobbyists in Washington, D.C., have always functioned under the assumption that all of their communications with clients were protected, even if such conversations are related to lobbying, rather than the law.

But in December 2002, a U.S. district court in New York ruled that such communications are not necessarily protected under attorney-client privilege.

The case concerned attorney Jack Quinn’s refusal to hand over documents to a federal grand jury. The documents were connected to President Clinton’s 11th-hour pardon of Quinn’s client, March Rich, a businessman who had been indicted on numerous counts of fraud and tax evasion.

Although Quinn argued that the documents should be protected under attorney-client privilege, Judge Denny Chin ruled that the documents were not protected because the attorneys were acting as lobbyists, not lawyers.

The ruling was nonbinding for lawyer-lobbyists in Washington, and no similar court decisions have followed. But if such a ruling were to occur in Washington, it could have a tangible effect on K Street.

“It would significantly alter the lobbying industry,” said Brett Kappel, a lawyer-lobbyist at Vorys, Sater, Seymour and Pease. “Like any other industry, clients expect you to maintain the confidentiality of their business information.”

Lawyer-lobbyist Victor Schwartz, of Shook, Hardy and Bacon, agrees. “How can I give good advice to my client if he isn’t going to be completely honest with me?”

So far, though, in the three years since the ruling, most lawyer-lobbyists continue to act as if all of their communications are protected by the privilege, Schwartz said. “Fortunately, that decision has been maverick,” he said, “and there has been no other along those lines.”

Kappel said it would be extremely unlikely that a similar ruling would occur in Washington, D.C. “I can’t envision a scenario in which the D.C. bar would reach a similar decision,” he said.

Washington, unlike any other jurisdiction in the country, Kappel said, has had decades of experience dealing with how attorney-client privilege applies to the lobbying community. As such, any move to reduce its scope in cases involving lobbying would be vigorously opposed by the parties involved and by outsiders who file amicus, or friend-of-the-court, briefs, he said.

But lawyer-lobbyist Stan Brand, of Brand Law Group, said that although the ruling is nonbinding, it is nonetheless significant because of its potential to set a new legal precedent.

“It’s still influential because other judges faced with similar facts are going to read it,” he said. “They may or may not agree with it, but at least it’s out there.”

Brand said that since no similar cases have come before federal courts since the Rich case, it is impossible to know if attorney-client privilege for lobbyists would be upheld by a future legal decision.

Nevertheless, Brand said, the majority of the lobbying community continues to function under the assumption such communications are protected.

“It’s grossly misunderstood in the lobbying community,” he said.

Steve Ross, the co-manager of policy practice at Akin Gump Strauss Hauer and Feld, said that his firm has made no specific changes in the way it ensures client confidentiality in the past two years.

“Certainly this firm, which has a long history of being engaged in full legal representation and representing clients on policy matters, has always been mindful of the client privacy issues and the need to preserve clients privacy,” Ross said.

In the face of the New York ruling, as well as recent publicity surrounding the Abramoff case, Brand urged that lobbyists be more careful in their communications with clients. In particular, the use of e-mail for such communications should be treated more seriously, he said.

“In the e-mail revolution, people are incredibly sloppy,” Brand said. “The number of e-mails that have sunk people’s legal fortunes has mushroomed in the past 10 years, and yet people still seem to use them as if they’re not at risk.”

Richard Streeter, the managing partner of the firm Barnes and Thornburg, agreed. “I take the position that you don’t put anything in an e-mail that I wouldn’t want to see in Roll Call, The Washington Post or on the front page of the New York Times.”

Kappel, who has advised clients in the past on complying with Congressional ethics rules, said that he thinks lobbying firms will respond to the recent events by revisiting their use of e-mail communication.

“I wouldn’t be surprised if most if not all law firms have taken a second look at their e-mail policy in light of recent disclosures before the Senate Indian Affairs Committee,” Kappel said.

Streeter said that everyone in the lobbying community should be aware of the damaging potential of e-mail. “If they aren’t aware by now, they are behind the times,” he said.

Brand also said that lobbyists can further ensure that conversations are covered by attorney-client privilege by structuring them to meet certain legal criteria.

If the conversation is created with the intention that it is going to be confidential, is connected to litigation and does not include a third party, it would be much more difficult for a court to rule that the communications fall outside attorney-client privilege, Brand said.

Kappel said in the event of a court decision that infringed on a lawyer-lobbyist’s ability to invoke attorney-client privilege, he would recommend having clients sign separate confidentiality agreements.

Some argue that because attorneys enjoy such privileges, lawyer-lobbyists should be more attractive to potential clients than lobbyists who aren’t lawyers. But Gregg Hartley, the vice chairman of Cassidy and Associates, a lobbying firm that is primarily staffed by non-lawyer lobbyists, disagrees.

Hartley argues that since it is extremely rare for a client to have an issue that requires the shelter of attorney-client privilege, the difference between lawyer and non-lawyer lobbyists is negligible.

“That might be the case for one in 500 or one in 1,000 of the folks who are actively seeking lobbying assistance today,” Hartley said.

Representatives from Greenberg Traurig and Preston Gates Ellis did not return phone calls requesting comment for this story.