Virginia: Conflict of Interest & Importance of Public Confidence Precludes Law Firm From Lobbying General Assembly

The Virginia State Bar recently opined that lawyer-legislator status creates a conflict of interest such that not only is the lawyer precluded from lobbying the legislative body of which he is a member, but so too are all the other members of the consulting firm of which he is a member and law firm that owns the consulting firm. The opinion involves a query concerning the repercussions for a law firm that owns a consulting firm. The Virginia State Bar concluded that the conflict of interest created by the lawyer-legislator in the consulting firm implicates the lawyers in the law firm as well. Opinion 1884 states:

“Lawyers in the law firm that own the consulting firm also may not represent clients before the public body. This prohibition does not depend on whether the member of the public body complies with the applicable Conflict of Interests Act; his colleagues are forbidden by Rule 8.4 from appearing before his public body even if he recuses himself as required by statute.”

The opinion emphasizes that “[l]awyers are held to a higher standard of conduct than mere compliance with legal requirements, and may not act in a way that ‘diminishes public confidence in and respect for the integrity of the legal profession, as well as the administration of government.’ LEO 1718. Accordingly, Rule 8.4(d) prohibits the lawyer/lobbyist from representing a client before the public body on which his lawyer/colleague sits, regardless of whether that colleague participates in the matter.”

The Virginia State Bar relied upon its previous opinion that held that law firms that employ legislators cannot lobby before the State Assembly. In Opinion 1718, the State Bar wrote: “The sense of the committee is that public confidence in the legal profession is not inspired, nor is an appearance of impropriety avoided, if a law firm represents clients before a governing body on which one of its lawyers is a member even if he/she abstains from participation and voting.”

As a matter of fact, the State Bar wrote, “The Committee concludes that there is no reason to distinguish between lawyers associated in a law firm and lawyers associated in a lobbying/consulting firm, as the public confidence concerns depend on the fact that the General Assembly member and the lobbyist are associated in the same firm, not on the nature of that firm’s business. See Rule 1.11(a) and 8.4(d).”

The opinion notes that the Virginia Rules of Professional Conduct do not apply to non-lawyers. However, the opinion referenced Rule 5.3 and warned that a lawyer supervising a non-lawyer could still be responsible for ensuring that the non-lawyer is complying with that lawyer’s ethical duties. Referencing Rule 8.4(a), the opinion also reminded lawyers that even if a lawyer does not have authority over non-lawyers, that lawyer is not allowed to circumvent the rules simply because that lawyer did not personally engage in the conduct.

Read the full opinion here.

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