Law firms and the Transparency Register
In the US, law firms offering lobby services are very common, and are obliged to register in the lobby register. Indeed, today according to the American lobby data-crunching website Opensecrets.org, 8 of the 20 top lobbying firms are actually law firms, including the biggest three.
Brussels lobbying Law Firms can provide high value for their clients. Often specialising in certain legal topics such as competition, anti-trust, or intellectual property, law firms understand the technical details of EU legislation and can add valuable insight in their discussions with Commission officials and MEPs. There is a grey area when it comes to the question of where legal advice ends and lobbying begins, and many law firms argue that they cannot join the lobby register because either their work does not constitute lobbying, or because they would not be able to disclose their clients because of legal client confidentiality. Nevertheless the total number of law firms on the register has risen from 43 in 2012 to 100 today of which more than half have offices in Brussels.
Indeed there is no obligation for law firms to sign up to the Transparency Register and there is an exception for them in the Interinstitutional Agreement which states in Article 10:
“Activities concerning the provision of legal and other professional advice are not covered by the register in so far as:
- they consist of advisory work and contacts with public bodies in order to better inform clients about a general legal situation or about their specific legal position, or to advise them whether a particular legal or administrative step is appropriate or admissible under the existing legal and regulatory environment;
- they consist of advice given to clients to help them ensure that their activities comply with the relevant law;
- they consist of analyses and studies prepared for clients on the potential impact of any legislative or regulatory changes with regard to their legal position or field of activity;
- they consist of representation in the context of a conciliation or mediation procedure aimed at preventing a dispute from being brought before a judicial or administrative body; or
- they relate to the exercise of the fundamental right of a client to a fair trial, including the right of defence in administrative proceedings, such as activities carried out by lawyers or by any other professionals involved therein.”
However, according to the Agreement the following activities concerning the provision of legal and other professional advice are covered by the register where they are intended to influence the EU institutions, their Members and their assistants or their officials or other staff:
- “the provision of support, via representation or mediation, or of advocacy material, including argumentation and drafting; and
- the provision of tactical or strategic advice, including the raising of issues the scope of which and the timing of communication of which are intended to influence the EU institutions, their Members and their assistants or their officials or other staff.”
Hence, the guidelines are explicit that any law firm engaging in activities covered by the EU lobby register on their own behalf, or on behalf of clients, should register. This includes all activities that are aimed directly or indirectly at influencing policy-making, policy implementation and decision-making of the EU institutions. So if law firms lobby on behalf of clients, they should reveal their clients and the respective revenue earned, as well as an estimate of the overall annual turnover attributable to activities covered by the register.
However, in recent years bar associations in some countries have acknowledged that client confidentiality should not be applied to lobbying services. In France, for example, the National Bar Council (CNB) amended its internal rules to urge lawyers to sign up to lobbying transparency registers at a national, international and, specifically, EU level. The decision was first published on 4 August in the CNB’s official journal. Under the new Article 6.2.3 of the Règlement Intérieur National, French lawyers will now, if required by a “public, European or international” institution’s register, and if representing a client’s interests to that institution, register the name of that client and the amount of fees the lawyer has been paid for that representation.
The Council of Bars and Law Societies of Europe (CCBE) has also expressed its view that law firms which lobby should register. Only a legally binding register, they argue, can create a level playing field, remove any lingering doubts and enable them to clearly communicate the duty to register towards clients. CCBE states “The protection of professional secrecy/legal professional privilege, principles of due process and fair trial – which postulate clear definitions and scope – are essential values to the legal profession and raise concerns under the current framework. Only a mandatory Transparency Register with a proper legal basis will be able to address these adequately.”