Untitled California Attorney General Opinion ( 1995 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 95-616
of :
: November 8, 1995
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE QUENTIN L. KOPP, MEMBER OF THE CALIFORNIA
STATE SENATE, has requested an opinion on the following question:
May a law firm that lobbies a state agency on behalf of a client be retained
by the agency to represent it in litigation?
CONCLUSION
A law firm that lobbies a state agency on behalf of a client may be retained by the
agency to represent it in litigation, provided the law firm meets the disclosure and consent requirements
pertaining to the representation of adverse interests.
ANALYSIS
Pursuant to the Political Reform Act of 1974 (Gov. Code, '' 81000-91015),1 a law
firm may register as a "lobbying firm"2 to lobby on behalf of clients for or against state legislative or
1
All references hereafter to the Government Code are by section number only.
2
Section 82038.5 defines "lobbying firm" as follows:
"``Lobbying firm' means any business entity, including an individual contract lobbyist, which
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administrative actions. On occasion a state agency may seek to employ, with the Attorney General's
consent (see '' 11040-11044), private legal counsel to meet agency needs. The question presented for
resolution is whether a law firm may be employed by a state agency to represent it in litigation when
the law firm has been retained to lobby the agency on behalf of a client. We conclude generally that
the law firm may act in the dual capacities of a lobbying firm and legal counsel for a state agency.
For purposes of this analysis, we will assume that the state agency which seeks to retain
the law firm for litigation purposes is lobbied from time to time by the firm, that an attorney-client
relationship has been formed between the law firm's attorneys and the party for whom the lobbying has
been and will be performed, that the officers and employees of the agency do not have a financial
interest in the law firm, and that the contract for legal representation will be preceded by the consent of
the Attorney General to the employment of private counsel and will be executed in accordance with the
provisions of the Public Contract Code.
1. The Law Firm Acting As A Lobbying Firm
The Act declares that "[p]ublic officials, whether elected or appointed, should perform
their duties in an impartial manner, free from bias caused by their own financial interests or the
financial interests of persons who have supported them . . . ." (' 81001, subd. (b)). Among the specific
purposes of the Act is the following: "The activities of lobbyists should be regulated and their finances
disclosed in order that improper influences will not be directed at public officials." (' 81002, subd.
(b).) Toward that end, the Act contains provisions which specifically proscribe certain conduct by
lobbyists3 and lobbying firms. Such conduct would include making gifts aggregating more than $10 to
meets either of the following criteria:
"(1) The business entity received or becomes entitled to receive any compensation, other
than reimbursement for reasonable travel expenses, for the purpose of influencing legislative or
administrative action on behalf of any other person, and any partner, owner, officer, or employee of
the business entity is a lobbyist.
"(2) The business entity received or becomes entitled to receive any compensation, other
than reimbursement for reasonable travel expenses, to communicate directly with any elective state
official, agency official, or legislative official for the purpose of influencing legislative or
administrative action on behalf of any other person, if a substantial or regular portion of the activities
for which the business entity receives compensation is for the purpose of influencing legislative or
administrative action."
3
Section 82039 defines "lobbyist" as follows:
"``Lobbyist' means any individual who is employed or contracts for economic consideration, other
than reimbursement for reasonable travel expenses, to communicate directly or through his or her agents
with any elective state official, agency official or legislative official for the purpose of influencing
legislative or administrative action, if a substantial or regular portion of the activities for which he or she
received consideration is for the purpose of influencing legislative or administrative action. No individual
is a lobbyist by reason of activities described in Section 86300."
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an agency official in a calendar month, acting as an agent or intermediary in the making of any gift, or
arranging for the making of any gift by any other person. (' 86203.) In addition, under the terms of
section 86205, a lobbyist or lobbying firm is forbidden to do any of the following activities:
"(a) Do anything with the purpose of placing any elected state officer,
legislative official, agency official, or state candidate under personal obligation to the
lobbyist, the lobbying firm or the lobbyist's or the firm's employer.
"(b) Deceive or attempt to deceive any elected state officer, legislative
official, agency official, or state candidate with regard to any material fact pertinent to
any pending or proposed legislative or administrative action.
"(c) Cause or influence the introduction of any bill or amendment thereto
for the purpose of thereafter being employed to secure its passage or defeat.
"(d) Attempt to create a fictitious appearance of public favor or disfavor of
any proposed legislative or administrative action or to cause any communication to be
sent to any elected state officer, legislative official, agency official, or state candidate in
the name of any fictitious person or in the name of any real person, except with the
consent of such real person.
"(e) Represent falsely, either directly or indirectly, that the lobbyist or the
lobbying firm can control the official action of any elected state officer, legislative
official, or agency official.
"(f) Accept or agree to accept any payment in any way contingent upon the
defeat, enactment, or outcome of any proposed legislative or administrative action."
None of the foregoing activities would necessarily be involved when a law firm, which is also a
registered lobbying firm, is retained by a state agency to perform litigation services. The fact that the
law firm has been retained by one of its clients to influence the administrative actions of that agency
does not, under the Act, preclude it from also acting as legal counsel for the agency.4
We have assumed that no state agency officer or employee has or would have a
financial interest in the law firm, such as having a spouse who is a partner in the firm. Both the Act
('' 87100, 87103) and other laws (e.g., ' 1090) prohibit public officials from acting when personal
conflicts of interest are present under a variety of situations.
Section 86300 concerns the activities of certain public officials, state employees, members of the media, and church
representatives.
4
The dichotomy between a law firm's lobbying activity and its legal representation of a client is reflected in
regulations promulgated by the Fair Political Practices Commission, the entity charged with administering the Act.
Section 18614 of title 2 of the California Code of Regulations states that payments to a lobbying firm for litigation
services shall not be considered payments for lobbying services that must be reported to the commission.
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2. The Law Firm As Legal Counsel
We now turn to the Rules of Professional Conduct of the State Bar of California5 to
determine whether these rules, which govern the conduct of those admitted to practice law in this state,6
limit the ability of a law firm to perform legal services for a state agency which it lobbies on behalf of
another client.
Rule 3-310, which concerns avoiding the representation of adverse interests, provides
in pertinent part as follows:
"(A) For purposes of this rule:
(1)‘Disclosure' means informing the client or former client of the
relevant circumstances and of the actual and reasonably foreseeable adverse
consequences to the client or former client;
(2) ``Informed written consent' means the client's or former client's
written agreement to the representation following written disclosure;
(3) ``Written' means any writing as defined in Evidence Code
section 250.
"(B) A member shall not accept or continue representation of a client without
providing written disclosure to the client where:
(1) The member has a legal, business, financial, professional, or
personal relationship with a party or witness in the same matter; or
(2) The member knows or reasonably should know that:
a) the member previously had a legal, business, financial,
professional, or personal relationship with a party or witness in the
same matter; and
(b) the previous relationship would substantially affect the member's
representation; or
5
All references hereafter to the Rules of Professional Conduct are by rule number only.
6
For a willful breach of the rules, the State Bar Board of Governors has the power to discipline members as
provided by law. (Rule 1-100.)
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(3) The member has or had a legal, business, financial, professional,
or personal relationship with another person or entity the member knows or
reasonably should know would be affected substantially by resolution of the
matter; or
(4) The member has or had a legal, business, financial, or professional
interest in the subject matter of the representation.
"(C) A member shall not, without the informed written consent of each client:
(1) Accept representation of more than one client in a matter in which the
interests of the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter in
which the interests of the clients actually conflict; or
(3) Represent a client in a matter and at the same time in a separate matter
accept as a client a person or entity whose interest in the first matter is adverse to the
client in the first matter.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(E) A member shall not, without the informed written consent of the client or
former client, accept employment adverse to the client or former client where, by
reason of the representation of the client or former client, the member has obtained
confidential information material to the employment."
Whether Rule 3-310 is applicable when a state agency seeks to retain a law firm to represent it in
litigation even though the firm has been retained to lobby the agency on behalf of a client would depend
upon the individual facts involved. The circumstances may call for written disclosure by the law firm
or require the informed written consent of each client.7 The situation most likely to call for written
disclosure would be when "[t]he member has or had a legal, business, financial, or professional interest
in the subject matter of the representation." (Rule 3-310(B)(4).) The more stringent requirement of
informed written consent would typically arise when the law firm "[r]epresents a client in a matter and
at the same time in a separate matter accept[s] as a client a person or entity whose interest in the first
matter is adverse to the client in the first matter." (Rule 3-310(C)(3).)8 Regardless, however, of the
7
The party for whom the law firm performs lobbying services is protected by the disclosure and consent provisions
of the rule if it is a "client" of the firm. Whether an attorney has formed a formal or defacto attorney-client relationship
with a party is a question of fact. (See In re Marriage of Zimmerman (1993) 16 Cal. App. 4th 556, 564; People v. Thoi
(1989) 213 Cal. App. 3d 689, 699.)
8
The official commentary with respect to Rule 3-310 states that "[s]ubparagraph (C)(3) is intended to apply to
representations of clients in both litigation and transactional matters."
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particular circumstances involved, it is clear that Rule 3-310 does not preclude the type of dual
representation under consideration herein.
In answer to the question presented, therefore, we conclude that a law firm which
lobbies a state agency on behalf of a client may be retained by the agency to represent it in litigation,
provided the law firm meets the disclosure and consent requirements pertaining to the representation of
adverse interests.9
*****
9
It follows from our conclusion that neither the Act nor the rules would prohibit a law firm from representing a state
agency when it has been retained by a client to lobby the Legislature or a different state agency.
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