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Bar Journal - June 1, 2000

Lawyers & Lobbying in New Hampshire

By:
 

Of the many fantastic creatures that dwell in the marshy habitats north of the Potomac, none is more notorious or maligned than the "lawyer-lobbyist." The term - invariably uttered with a sneer- brings to mind the well-heeled fixer who exercises influence in the halls of Congress by profligate use of campaign contributions. "Lawyer-lobbyist" never turns up in the lists of those occupations most admired by Americans. Yet, lawyer-lobbyists also are found on the banks of the Merrimack - in far smaller numbers and (one hopes) in a more genteel incarnation than their stereotypical cousins on K Street.

Lobbying is but a small segment of the practice of law in New Hampshire. As of April 1, 2000, only 38 attorneys were registered as lobbyists in New Hampshire, fully one-half of that number employed in just seven law firms. Lawyers represent less than one-quarter of the 179 lobbyists who are registered in this state.1 

Nevertheless, lobbying (or, as many have more benignly termed this area of practice, "governmental affairs" or "government relations") is a challenging and rewarding type of legal work which is attracting the attention of an increasing number of lawyers. Although members of the legal profession traditionally are associated with the judicial branch and the way that existing laws are applied, lawyers logically are also eminently suited to play an active role before the legislative branch in the process of making new laws.

NEW HAMPSHIRE LOBBYING LAWS

Undoubtedly sparked by the Progressive Movement's national push to clean up government in the early years of the 20th century, New Hampshire began regulating the practice of lobbying as far back as 1909.2  The lobbying laws apply to "any person who is employed for a consideration by any other person in a representative capacity to promote or oppose directly or indirectly any legislation pending or proposed before the general court."3  In language which seems exquisitely appropriate, lobbyists must first "enter [an] appearance" with the Secretary of State.4  This appearance must include the full names of the employer and the employed, their respective residences, their usual occupations, the date and character of the employment, the duration of the employment (if it can be determined), and the special subjects of legislation, if any, to which the employment relates.5  The registrations expire on December 1st of each year.6 

The annual registration fee for each lobbyist is $50.00 per employer.7  When lobbying in the State House or the Legislative Office Building, a lobbyist must wear a hunter orange name tag at least 1 1/2" high and 2 1/2" long.8  In white lettering at least 1/4" high, the name tag must show the lobbyist's first and last name, together with the word "lobbyist" or the name of the organization which the lobbyist represents.9  As if to head off the inevitable attempts by particularly crafty types to escape the identification requirement by means of an overly literal reading of the statute, the law expressly requires that the name tag be worn on the lobbyist's "outer garment."10  Although lobbyists invariably wear their name tags at all times while in the State House or the Legislative Office Building, the name tag requirement does not apply when the lobbyist is appearing to testify before a legislative committee in an open hearing session.11 

In what is a significant departure for lawyers who have been weaned on a diet of confidentiality, each lobbyist quarterly must file with the Secretary of State (on April 15th, August 15th, and December 15th) "itemized statements under oath of his fees and expenditures in connection with his legislative employment, including by whom paid or to whom charged."12  Those statements are "open to public inspection."13  It is the responsibility of the Attorney General to examine the statements and to compel compliance.14 

New Hampshire's lobbying law is backed up by criminal sanctions. Violation of any provision of the lobbying laws is a misdemeanor if committed by a natural person, or a felony if committed by any other person.15  The filing of any lobbying statement known to be false constitutes perjury.16 

THE UNIQUE ROLE OF THE LAWYER-LOBBYIST

Lobbying is probably the only type of legal practice which finds lawyers routinely working side-by-side with non-lawyers who are performing an identical job. Indeed, in New Hampshire's lobbying universe, it is lawyers who are the exception rather than the rule. This presents interesting professional challenges, and raises an ultimate question: what is it that lawyers can offer to clients in this field of practice?

One obvious answer is the lawyer's training and experience in the law. As legislation wends its way through the committees of the House and Senate, questions frequently arise with respect to judicial precedent, statutory interpretation, or the constitutionality of proposed provisions. Those are questions which lawyers, of course, are uniquely equipped to address.

Lawyer-lobbyists also are able to contribute to the lawmaking process the specialized legal knowledge of the lawyers in their firms. In a legislature which has limited staffing resources, such information can be extremely valuable to committees as they consider bills which involve extremely technical areas such as taxation or utility law.

If training and experience do not set lawyers apart from their fellow lobbyists, however, the provisions of the New Hampshire Rules of Professional Conduct surely do. Obviously, the Rules do not govern the conduct of the lay-lobbyists. Recognizing that the application of the Professional Conduct Rules in the legislative context "may subject lawyers to regulations inapplicable to advocates who are not lawyers", the ABA Model Code comments nevertheless affirm that "legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts."17 

Thus, a lawyer representing a client before a legislative or administrative tribunal in a nonadjudicative proceeding must disclose the fact of representation,18 and must conform with the relevant rules requiring candor toward the tribunal,19  fairness to opposing parties and counsel,20  and respect for the impartiality and decorum of the tribunal.21  The lawyer is expressly prohibited from knowingly making a false statement of material fact or law to a legislative committee.22  She cannot offer evidence to a committee which she knows to be false.23  The lawyer may not seek to influence a legislator by means prohibited by law, and may not engage in conduct intended to disrupt a legislative committee before which the lawyer is appearing in his or her professional capacity.24 

Credibility being the lobbyist's stock in trade, the professional conduct rules relating to honesty and candor do not create any unique hurdles for lawyers; after all, every lobbyist is expected to be honest and truthful in dealing with the legislature. Where the professional conduct rules truly create a distinction between lawyer-lobbyists and lay-lobbyists, however, is in the restrictions against conflicts of interest25  and in the limitations on the ways in which lawyers can solicit professional employment.26  These rules affirmatively prevent lawyer-lobbyists from engaging in business practices which are not forbidden to lay-lobbyists. Unlike lawyers, lay-lobbyists have little in the way of any legal or practical restriction with respect to the clients whom they solicit or the manner in which the solicitation is undertaken. Undoubtedly, then, the rules serve as a limitation on the ways that lawyer-lobbyists can attract new business.

On the other hand, the rules provide a formalized framework for the relationship between the lawyer and the client. The client who retains a lawyer as a lobbyist, for instance, can be certain that client-lawyer confidentiality obtains with respect to their communications.27  That client also enjoys the protections which the rules afford against the lawyer-lobbyist's representation of other clients with adverse interests.28  As a practical matter, therefore, the rules offer to the clients of lawyer-lobbyists a unique guarantee of the way that they will be treated as they plead their case before the legislature.

LOBBYING THE EXECUTIVE BRANCH

Not all laws are enacted by the legislature. Pursuant to the authority delegated by the legislature in a host of areas, New Hampshire executive branch agencies have adopted numerous administrative rules which have the force of law.29  By their very nature, these rules are far more specific than the enabling statutes themselves. This means that the administrative rules sometimes can have an even greater impact on a client's interests than do the original statutes.

The same principles which make it logical for lawyers to lobby in the legislature make it logical for lawyers to lobby in the executive branch as well. Executive branch officials who are adopting administrative rules must engage in the same sort of policy judgments as do legislators. The rulemaking process affords ample opportunity for public hearings and comment. Timely and persuasive arguments made to executive branch policy makers can be invaluable in helping to shape the final version of a proposed set of rules. As the number of laws expands and the subject matter of those laws becomes increasingly technical, administrative rulemaking by the executive branch is sure to follow suit. In the coming years, lawyer-lobbyists will be spending increasing amounts of time attending to the quasi-legislative functions of the executive branch.

SOME CONCLUDING OBSERVATIONS

For lawyers considering the establishment of a lobbying practice, some final thoughts.

First and foremost, maintain respect for the institution and its members. The typical lawyer has lived in a world where his arguments are addressed exclusively to other people with law degrees. Our grassroots legislature is made up of citizens with a wide range of educational backgrounds. Do not make the mistake of equating educational accomplishment with wisdom, intelligence, or common sense, however. Lawyer-lobbyists should be no less deferential and respectful to legislators than they would be to judges.

Second, communicate clearly and concisely. Lobbying, like litigation, is nothing more than the art of persuasion. Like a jury, the legislature is made up of a cross-section of New Hampshire citizens. The lawyer - whether lobbyist or litigator - must persuasively state, in brief and understandable fashion, a sometimes technical and complex case. Legislators must vote on hundreds of bills each year, and they neither need nor desire lengthy excursions into legal or factual trivia. Be brief and to the point.

Third, be prepared to make a significant commitment of time. Lobbying is not the type of practice in which a lawyer can simply dabble. Lobbyists would probably agree that their most fruitful work is done not in testimony before legislative committees, but rather in more informal meetings with individual legislators. It is in these informal settings where the bulk of the ideas are chewed over and where many compromises finally are developed. It is a mistake to assume that a matter is not going to be the subject of some discussion in the halls of the legislature just because no hearing is scheduled. There is no substitute for a physical presence at the State House and the Legislative Office Building throughout the legislative session.

Fourth, be straightforward in all your dealings. The legislators, staffers and lobbyists who work in the State House and the Legislative Office Building make up a close-knit community which is not unlike a small town. People know one another. News and reputations spread quickly. This magnifies the need for candor, honesty, and fair dealing. It also requires a sort of professional courtesy. Legislators and lobbyists who are today's opposition may be valuable allies on a different matter tomorrow.

Finally, indulge in some feelings of pride. Lawyers who are involved in the legislative process have the privilege of watching from a front row seat the workings of our democracy. In the midst of mundane conflicts, debates and roll calls, step back for a moment and reflect on the wonder of representative government and the rule of law.

ENDNOTES

1. That number does not account for the attorneys who, as state employees, represent state agencies before the legislature and are not required to register as lobbyists.
2. Laws 1909, Ch. 53:3
3. RSA 15:1
4. Id.
5. Id.
6. Id.
7. RSA 15:2
8. RSA 15:2-a, I
9. Id.
10. Id.
11. RSA 15:2-a, II
12. RSA 15:3
13. RSA 15:3, I
14. RSA 15:6
15. RSA 15:5
16. Id.
17. N.H. Rules of Professional Conduct, Rule 3.9 (ABA Model Code Comments)
18. N.H. Rules of Professional Conduct, Rule 3.9
19. Id., Rule 3.3
20. Id., Rule 3.4
21. Id., Rule 3.5
22. Id., Rule 3.3(a)(1)
23. Id., Rule 3.3(a)(3)
24. Id., Rule 3.5(a) and (c)
25. Id., Rule 1.7
26. Id., Rule 7.3
27. Id., Rule 1.6
28. Id., Rule 1.7
29. RSA 541-A:22, II

The Author

Attorney Robert E. Dunn, Jr. coordinates the governmental affairs practice at the firm of Dean, Rice and Kane in Concord, New Hampshire. Attorney Dunn is former Assistant Commissioner of the New Hampshire Department of Safety.

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