Lawyers run risk of getting lobbyist tag

Reform measure makes it risky to talk with legislators

Md. bar issues warning

New disclosure rules spur advice: Testify, then make hasty exit

January 20, 2002|By Michael Dresser | Michael Dresser,SUN STAFF

Lawyers, beware. A few misplaced words to Maryland state legislators could turn you into an accidental lobbyist.

The Maryland State Bar Association is warning attorneys that the lobbying law that took effect late last year could ensnare them and their firms in a regulatory morass if they communicate too freely with lawmakers.

For a high-priced lawyer, all it would take is one day's work on pending legislation to meet the definition of a lobbyist - even if the attorney is not representing a paying client. That includes time spent researching a position.

Pamela J. White, the bar association president, is warning lawyers who appear as expert witnesses to consult with the group's registered lobbyist before appearing before a legislative committee, chatting with a lawmaker about a bill or talking with an executive branch official about a pending regulation.

"The disclosure and reporting requirements under the lobbying law are pretty far-reaching and onerous," she said.

The association says that even a casual chat with a legislator after a hearing could trigger a requirement that they register as lobbyists and file an extensive disclosure form. Lawyers who inadvertently cross a $500 threshold for money earned while having face-to-face contact with lawmakers could run afoul of the State Ethics Commission if they fail to register.

The bar association's advice: Testify and make a hasty exit.

While some lawyers are professional lobbyists, many others come to Annapolis to contribute their technical expertise while lawmakers consider sometimes complex and technical legislation.

Del. Joseph M. Getty, a member of the House Judiciary Committee, said lawyers with expertise in areas such as domestic relations frequently appear before the panel.

"Their advice is highly valued by committee members," the Carroll County Republican said.

In many cases, the lawyers come to Annapolis without compensation by a client - often at the request of the bar association.

Under the new law, passed as a reform measure last year, such good deeds will not go unpunished. As long as lawyers are being paid by their firms, their time counts toward the registration requirement. The firms themselves could also be swept up by the law if one of their attorneys is compelled to register. I in those cases, White said, the firm could have to file an extensive financial disclosure, and partners could be required to report political contributions.

She said she's concerned that the requirements could have "a chilling effect" on communications between lawyers and lawmakers.

The sweeping registration requirement is one of the presumably unintended consequences of the reform legislation, which passed after the General Assembly was embarrassed by several scandals involving lawmakers and lobbyists. Among other provisions, the law in effect creates a lobbying "license" that can be suspended or revoked if a lobbyist commits a serious offense.

Besides lawyers, officials of nonprofit groups and representatives of out-of-state companies looking to do business in Maryland are also concerned they could be swept up in the reporting requirements.

The rules defining lobbying could easily trip up the unwary.

For instance, if a lawyer appears before a committee at the panel's request, the hours spent preparing and testifying do not count toward the threshold. It is what the bar association calls a "safe harbor" under the law.

If a legislator approaches the attorney after the hearing with questions, however, the witness' answers are not protected by the safe-harbor rules. Similar provisions apply to contacts with executive agencies of state government.

The bar association says that if a lawyer wants to comment on pending legislation, that person should get in touch with its lobbyist first. The lobbyist can then seek to arrange an invitation from the committee or present the witness as somebody testifying at the bar association's request - another safe harbor.

Association lobbyist Albert "Buz" Winchester is planning to accompany lawyers to hearings so he can warn legislators to ask all their questions in the hearing, because the witnesses will not be available afterward.

Meanwhile, the bar association is warning lawyers to limit their in-person communications with lawmakers and to use telephone, e-mail and fax machines to get their messages across. The earnings threshold for communications that are not face-to-face is $5,000.

White said that, according to the State Ethics Commission, even a lawyer who takes vacation time to meet with lawmakers about a bill unrelated to his practice could be considered a lobbyist. She's hoping the commission will clarify the rules at its meeting next month. "We are in some uncharted territory here," she said.

Hoping to protect its members, the bar association has posted a detailed explanation of the law and its pitfalls on its Web site, www. msba.org.

White said the association is not pushing for a change to the law - especially any that would reduce the regulation of bona fide lobbyists, whether lawyers or not. But she said the group would look carefully at any modifications that might be introduced.

Any revision of the law will likely have to wait, said Sen. Michael J. Collins, who chairs the subcommittee that helped craft the bill.

Collins said that anytime a new law goes into effect, it takes a few years to determine whether any "refinements" are needed. "Let's wait a while and see if there are unintended consequences," the Baltimore Democrat said.

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