Proper Versus Improper Advocacy

Paragraph (e) condemns a lawyer who states or implies an ability to influence a government agency or official improperly, or to achieve results by means that violate the Rules of Professional Conduct or other law.¹ The adverb marks the edge of the rule. Lawyers testify before legislative committees, comment on proposed regulations, and lobby council members as ordinary professional work, and a rule that condemned every attempt to move an official would condemn the advocacy that Rule 3.9 presupposes.² Two questions follow from that boundary. The first is what makes influence improper. The second is what framework governs a lawyer who appears before a legislature or agency that is making rules or policy and is not deciding a dispute between parties.

Where the Line Falls

The second clause of paragraph (e) supplies the measure: results achieved by means that violate the Rules of Professional Conduct or other law.³ The text does not define improperly in the first clause, but the clause beside it shows the sense in which the rule uses the word. Open persuasion on the merits falls outside both clauses, and Rule 3.9 confirms the point by regulating a lawyer's advocacy before legislative and administrative bodies and not forbidding it.⁴ The forbidden means share a feature. A bribe, a false statement, and tampering with a witness all work by corrupting the decision, while accurate facts and open argument inform it.

Because every advocate before an agency tries to move it, the attempt settles nothing. A stem that places a lawyer at a hearing, in a comment proceeding, or in a council member's office has not yet described misconduct. The analysis turns on the means the lawyer used or claimed the ability to use. A lawyer who works a rulemaking through favors and a lawyer who works it through public argument both want a favorable rule, and they end in different places.

The first lawyer's conduct contains two wrongs, and the second lawyer's contains none. Telling the client that friendship guarantees the result is a claim of ability, which paragraph (e) punishes when it is made. Offering the vice chair a trip is conduct aimed at the decision maker, and it belongs to the framework governing appearances before legislative and administrative bodies. The second lawyer's route to a result was open to every participant and rested on true statements, so nothing in it depended on a forbidden means.

Appearances Under Rule 3.9

Rule 3.9 of the Model Rules governs the setting in which lawyers most often press client interests on officials. It provides that "[a] lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5."⁶ A proceeding is nonadjudicative when the body acts in a rule-making or policy-making capacity, as at a rulemaking hearing or a legislative committee session. In that setting, Comment 1 explains, the lawyer must "present facts, formulate issues and advance argument" with integrity and in conformity with the forum's procedural rules.⁷ This chapter treats Rule 3.9 only as far as it marks the boundary between lawful and unlawful advocacy.

The disclosure duty exists because representation can be invisible here. An appearance before a court shows everyone that the lawyer speaks for a party, but a lawyer at the microphone in a rulemaking hearing may be taken for a citizen giving personal views.⁸ A paid advocate mistaken for a citizen borrows the credibility of a disinterested speaker. Requiring the lawyer to say at the outset that the appearance is in a representative capacity tells the audience whose interest the argument serves.

The incorporated rules carry honesty and decorum duties into the hearing room. Rule 3.3 as incorporated bars false statements of law or fact and the presentation of false evidence. Rule 3.4 as incorporated protects access to and preservation of evidence, forbids falsifying evidence or tampering with a witness, and requires the lawyer to obey the forum's procedural rules.⁹ The reference to Rule 3.3(a) through (c) leaves out paragraph (d), which governs forms of ex parte relief that have no application before a legislature or agency. Rule 3.5 bars improper influence on the decision maker and disruption of the proceeding, and it echoes paragraph (e) most closely, because it forbids the influence that paragraph (e) forbids a lawyer to claim the ability to exercise.¹⁰ Together these rules let the lawyer press the client's interests hard while the process stays honest.

Rule 3.9 omits the rules that make sense only in litigation, including those on expediting litigation, extrajudicial statements, the lawyer as witness, and the special responsibilities of a prosecutor. It also omits the ban on frivolous arguments, because "in politics, it is standard operating procedure to design arguments that appeal to emotion and may not necessarily follow the rules of logic."¹¹ A student who assumes that every litigation rule follows the lawyer into the hearing room overstates the framework, and a student who assumes that nothing follows overlooks the candor and influence rules that do.

A lawyer who lobbies remains a lawyer. When a lawyer offers services with a strong legal flavor, such as lobbying a legislature on a matter full of legal questions, the lawyer is likely practicing law even though nonlawyers also lobby. The higher professional standards then apply to the lawyer and not to the nonlawyer lobbyist.¹² The lawyer-lobbyist therefore owes the client the usual duties of confidentiality, competence, and freedom from conflicts of interest, in addition to the duties owed to the body.