Legal Ethics Opinion 1502

Public Official-Appearance of Impropriety: Lobbying and Serving
as Part-Time Legislative Aide for Firm Employee who is Attorney
and Delegate to the General Assembly
You have presented a hypothetical situation in which an attorney
is the employer of another attorney who is a member of the
Virginia General Assembly.  The employer has, for several years,
actively supported state legislation to improve conditions in the
region and the attorney presently wishes both to continue
lobbying before assembly committees and to work as a part-time
legislative aide to his employee. You indicate that the support
of legislation before the Virginia General Assembly would not be
in behalf of a particular client and the attorneys' firm would
receive no fee or cost reimbursement for the employer's work as
part-time legislative aide except for any applicable per diem
payment received from the state. 

You have asked the committee to opine whether, under the facts of
the inquiry, the employer of an attorney who is a member of the
Virginia General Assembly may appear before the assembly's
committees and members to (1) lobby for issues in which he has
personal convictions (e.g., environment, education) and (2) work
as his employee/delegate's part-time legislative aide which
requires lobbying for or against issues the delegate assigns to

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 8-101(A)(1) which states that a lawyer who
holds public office shall not use his public position to obtain,
or attempt to obtain, a special advantage in legislative matters
for himself or for a client under circumstances where he knows or
it is obvious that such action is not in the public interest; and
DR 9-101(C) which mandates that a lawyer shall not state or imply
that he is able to influence improperly or upon irrelevant
grounds any tribunal, legislative body, or public official.

Although the committee is not empowered to make statutory
interpretations, it does take notice of the definitions regarding
lobbying and lobbyists under 30-28.1 of the Code of Virginia and
of Opinions of the Attorney General which have addressed those
definitions.  The committe the definition limiting the term
"lobbying" speaks to activities which include "promoting,
advocating or opposing any matter by an individual for or onbehalf of another but shall not include appearances before alegislative or legislatively created committee or agency, or
submission of a written statement thereto".  30-28.l(c)
[emphasis added]  See also l987-l988 Report of the Attorney
General 372; l976-l977 Report of the Attorney General l49;
l974-l975 Report of the Attorney General 245.  

Whether the activities you describe would properly be
characterized as "lobbying", then, requires a factual
determination beyond the purview of this committee.  Assuming,
however, that the employer/attorney is not determined to be
functioning in the capacity of "lobbyist", and is therefore not
seeking to obtain a special advantage in legislative matters for
himself or for a client, the committee is of the opinion that the
attorney may continue such activities while his employee is
serving as a member of the Virginia General Assembly.  See alsoIllinois State Bar Association Committee on Professional Ethics
Opinion 91-27 (4/3/92), ABA/BNA Law. Man. on Prof. Conduct,
Current Reports (June 3, 1992), pp. 146-47 (attorney should not
be prevented from exercising his rights of petition and
association as a private individual simply because of his choice
of profession); Cf. LEOs #419, #537, #1278.  The committee
cautions, however, that the attorney must exercise diligence in
complying with DR 9-101(C) which requires that he not state or
imply an ability to influence the General Assembly because of his
employee's status as legislator. 

With regard to whether or not the attorney may serve as part-time
legislative aide to his employee/attorney, the committee is of
the opinion that such employment is not per se violative of any
provision of the Code of Professional Responsibility since the
facts indicate that the attorney's firm will not receive any fee
or cost reimbursement other than an applicable per diem from the
state.  However, the committee cautions that the attorney must
comply with the disclosure and consent requirements of DR
5-l0l(A), related to any personal interest in such employment as
it creates a conflict with his independent professional judgment
on behalf of a client.  See, e.g., LEOs #ll63, ll98, l254, l3ll,

Committee Opinion
December 14, 1992