ATTORNEY-LOBBYISTS’ COMMUNICATIONS IN THE U.S.

The U.S. District Court for the District of Connecticut has ruled that Attorney-Lobbyists’ communications with corporate clients enjoy only limited protection under the Attorney-Client privilege. This decision joins similar rulings from federal courts in New York and Texas.

The court found that, despite the lobbyists being attorneys, many of the documents were not protected. Applying general privilege principles, the court held that “if a lawyer happens to act as a lobbyist, matters conveyed to the attorney for the purpose of having the attorney fulfill the lobbyist role do not become privileged by virtue of the fact that the lobbyist has a law degree or may under other circumstances give legal advice on matters that may also be the subject of the lobbying efforts.”

The court explained that in the lobbying context, the privilege protects legal analysis, such as interpretation or application of legislation to fact scenarios. However, the court held that documents that

1. do not provide analysis or interpretation of legislation,
2. are more in the nature of general lobbying updates, progress reports, or summaries of legislative meetings, or
3. reflect communications with public officials but offer no analysis, are not protected by privilege or as work product.

Lobbying is often a mixed bag of legal and business advice, and U.S. courts do not want all communications with lobbyists to be privileged.

The court relied heavily on the definition of Attorney-Client privilege, namely, whether the communication was intended to be and was kept confidential, and whether the communication seeks or provides legal advice. Although whether a communication seeks or provides legal advice appears to be a “bright line” rule at first glance, in the lobbying context, the rule may not be as clear as it first seems. With lobbying activities, legal analysis is often involved, though that analysis can be somewhat different than what litigators or courts are used to seeing.