Lobbying & Government Relations - Ethical Considerations

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Lobbying Ethics Discussion Issues & Considerations


Wright H. Andrews, Esq. - Partner, Butera & Andrews

Overstating vs. Misrepresenting Capabilities & Experience   Where and how do you draw the line between overstating vs. misrepresenting lobbying experience and capabilities?

How much does the Alet the buyer beware rule apply?

Written contract setting forth fees, scope of work, duties   Should all lobbyists be subject to a requirement like the bar rule that requires written agreements between attorneys and their clients regarding their fees, work, etc.?
Overcharges (e.g., in excess of value vs. for work not performed)   If a lobbyist does work that's not necessary and charges for it, is this ethical?  If fees are stated in advance, can they ever be so excessive as to be unethical? Is it ethical to charge different clients for the same work?
Contingent Fees/Value Billing   Is there anything inherently unethical about charging contingent fees for lobbying work?

How might contingent fees present ethical problems in particular cases?

Referral Fees/Kickbacks   Is it ethical in the lobbying profession to pay or accept referral fees?

If a lobbyist accepts a valuable gift (e.g., $500 worth of tickets) from another party after referring work to that party, does this raise ethical issues?

Where do you draw the line?

Issue/Client-based   Should a lobbying firm be able to represent opposing or conflicting parties on legislative issues without the parties permission?

If a lobbying firm represents a client in one area, should it be able to work for another client on a different issue that materially affects the first client? Does a lobbyist have a conflict if he or she has a meeting with a Senator and lobbies that Senator on behalf of three different clients on different issues?

Priority/Capacity-based   What ethical problems can arise when a lobbying firm accepts work involving lobbying on a bill for a number of clients with different interests? (E.g., lobbying for a number of tax or appropriations amendments)

When evaluating potential conflicts, should a lobbyist have to consider that they may have only a limited amount of Apolitical credit/clout and that using it for more than one client may limit their effectiveness on behalf of another client?

Personal Beliefs or Interests   When a lobbyists personal beliefs on an issue differ significantly from the clients position, can ethical problems arise?
Public Interest   As lobbyists advocate special interests, what ethical concerns may arise in terms of the public interest?

What is the A public interest and who decides what is in the public interest?

Information   If a Congressional staff member or another lobbyist gives you a draft bill or other information in confidence, is it ethical to disclose it to your client or another lobbyist with whom you are working, or is it unethical not to do so?

Should you even accept such information without an advance understanding with your client or colleague?

Strategy & Tactics   Are there ethical problems when a lobbyist discloses lobbying strategy and tactics without clearing it with the client?
Contacts   If a lobbyist is working secretly with another party (e.g., a Senator), are there times where failure to disclose this is unethical?
Lobbying Disclosure Act & FARA   Does the mere fact that a lobbyist meets the minimum disclosure requirements of current law mean that he or she has met all ethical disclosure needs?
Parties Represented   Should a lobbyist disclose the names of members of a coalition he or she is representing even if such disclosure is not legally required?
Work Status & Major Developments   What obligation does the lobbyist have to keep clients current on the work they are doing and on relevant developments regarding that work? (e.g., that a bill is A dead and the client therefore may not really want to keep paying the lobbyist!)
Material Changes   If there is a material change in the facts and/or circumstances on a matter, does the lobbyist have an affirmative duty to disclose that to everyone he or she may have talked with?

If there is such a duty, how far back does it extend?

Personal Status or Relationships   Does a lobbyist have a duty to disclose positive or negative personal relationships with people he or she may be lobbying or lobbying with?

Are there disclosure or other ethical problems with a lobbyist dating Congressional Members or staff?

Should a lobbyist disclose their political party?

Duty of loyalty and to use  best efforts in doing work    Is it unethical for lobbyists not to always use their A best efforts in representing clients?

When one client is paying far more than another, is the lobbyist ever justified in using more efforts, including more political clout, to advance the interests of the higher paying client?

Can a lobbyist ethically drop one client and switch to representing an opposing party who offers to pay significantly higher fees?

Accountability   Should there be an ethical standard or practice to hold lobbyists accountable for their work, or work they should have done?
Honesty   When might being honest be unethical?
Knowing False Statement (a/k/a A Lie)   Is it ever ethical to make a false statement to protect a legislative client?

If saying I can't comment sends a negative signal that is very adverse to the client's interest, does the lobbyist face an ethical problem, and if so, how does he or she resolve it?

Misleading & Deceptive Practices   Where and how do you draw the line as to practices being misleading and deceptive and therefore unethical?
Correction of Errors & Omissions   Should lobbyists have to correct material errors and omissions? (E.g., factual errors in lobbying materials)
Circulating Anonymous Materials   If a lobbyist circulates lobbying materials without disclosing who prepared them, or on whose behalf the documents are being distributed, does this raise ethical concerns?
Comments to Press Promoting Lobbyist but Adverse to Client   Does the desire for personal publicity sometimes cause lobbyists when commenting to the press on a legislative matter to violate ethical obligations to a client?
Attempts to Influence via Spending Money   Is there anything inherently ethically wrong with a lobbyist or his or her client spending money to influence legislative or policy decisions?

If not, when might spending money legally for such purposes nevertheless present problems?

Attempts to Influence via Media/PR Campaigns   When a lobbyist uses media or public relations campaigns to generate political support for or against a legislative proposal, does this sometimes raise ethical issues because it presents a false or deceptive impression to Congress of public interest in the proposal?
Attempts to Influence via Contributions   Is it ever unethical to use legal political contributions to influence governmental decisions?

Should it be considered unethical per se for lobbyists to give or raise political contributions?

What ethical problems arise with respect to giving or raising contributions?

Is it ethical to have an implicit understanding that making a contribution will likely result in more favorable action? (Assume no actual, express quid pro quo)

Attempts to Influence via Gifts   When is it ethical to attempt to influence governmental decisions by gifts?

If some small gifts are acceptable, where do you draw the line?

Attempts to Influence via Personal Relationships   If you are close personal friends with a Senator or Representative, or one of their staff members, is it ethical to seek to influence their policy decisions on the basis of your friendship?

Is it ethical for a lobbyist to actively raise money for a candidate or to work in their campaign in hopes of gaining a stronger personal/political relationship that the lobbyist can then use to influence the candidate if elected?

Attempts to Influence via Grassroots Campaigns   Do grassroots lobbying activities ever raise ethical concerns?

If so, what are they?

Failure to Warn   Is there any duty to warn another lobbyist with whom you are working in a coalition that you are switching positions and going your own way?
Press A Leaks   Is it ethical to leak adverse information to the press to undercut the legislative position of a legislative opponent?
Knowingly Making Prohibited Contributions   If certain actions by lobbyists might be deemed to involve in-kind political contributions that technically are prohibited or limited, and yet everybody seems to do it (a/k/a the 55 MPH speed limit), does that make it ethical?
Knowingly Making Gifts Which May or Do Violate House or Senate Rules   Is a lobbyist who buys a staffer lunch, allegedly as a friend, but actually for business reasons and writes off the lunch as a business expense without telling the A friend acting unethically?
Illegal Bribes   What is considered a bribe?

Can a A gift allowed by the House or Senate rules nevertheless by illegal and/or unethical?

Illegal Acts (e.g., drugs) or Serious Immoral Acts   If a lobbyist engages in illegal or immoral acts that A bring disrepute on the profession, does this also raise professional ethical issues?

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