Advisory Opinion No. 95-12

Negotiation Of A Lease Or Other Contract With An
Executive Branch Or Quasi-Public Agency When Undertaken
By An Attorney On Behalf Of A Client Is Exempt From The
Definition Of “Lobbying” As “The Practice Of Law” Within
The Meaning Of P.A. 95-144

“Lobbying”, as defined in the Code of Ethics for Lobbyists, Conn. Gen. Stat. Chapter 10, Part II, means, in part, communicating with executive branch or quasi-public agency officials or their staff for the purpose of influencing “any action or nonaction of [the agency]…regarding a contract…”  Conn. Gen. Stat. §§1-91(a), (k).  State Ethics Commission Regulations effectively exclude from the definition of “Lobbying” the preparation of a response to a request for contract proposals (RFP), communications made incident to the performance of a contract, and those which are for strictly informational purposes, such as requests for product or client information.  Regulations of Conn. State Agencies, Sec. 1-92-42a(e)(1)-(3).  Also exempt are communications by a salesperson acting in his or her capacity as such.  Conn. Gen. Stat. §1-91(k).  The petitioner has asked, first, whether communications for the purpose of negotiating the terms of a lease or other contract are also exempt.  For purposes of responding to the petitioner’s inquiry, “negotiation” refers to communications with an agency which precede the signing of a contract, yet which do not relate to the preparation of a response to an RFP, regarding the terms of a proposed agreement.

Contact with an executive branch or quasi-public agency for the purpose of negotiating the terms of a lease or other contract, as described in the preceding paragraph, constitutes communication for the purpose of influencing an “Administrative action” of the agency and is therefore “Lobbying” within the meaning of Conn. Gen. Stat. §§1-91(a) and (k).  The negotiation of a contract, per se, is not exempted from the definition of “Lobbying,” either by statute or regulation.  If however, the nature of one’s contact with an agency is such that it legitimately may be described as the communications of a salesperson acting in his or her capacity as such, or if undertaken by an attorney as discussed infra, the activity will not require registration or reporting under the Code of Ethics for Lobbyists.  Conn. Gen. Stat. §1-91(k).

Specifically, effective June 28, 1995, exempt from the definition of “Lobbying” are “communications by an attorney made while engaging in the practice of law and regarding any matter other than legislative action as defined in [Conn. Gen. Stat. §1-91(j)] or the proposal, drafting, development, consideration, amendment, adoption or repeal of any rule or regulation.”  P.A. 95-144.  The petitioner has asked, second, whether the negotiation of the terms of a contract, as described supra, if undertaken by an attorney on behalf of a client, constitutes the “practice of law” within the meaning of P.A. 95-144.

“The practice of law,” as the term is used in Conn. Gen. Stat. §1-91(k), is not defined in the Code of Ethics for Lobbyists or in Conn. Gen. Stat. §51-88, which prohibits the practice of law by persons who are not attorneys.  In fact, “[a]ttempts to define the practice of law have not been particularly successful… The more practical approach is to consider each state of facts and determine whether it falls within the fair intendment of the term.”  In re Application of Dodd, 132 Conn. 237, 242 (1945).  The Commission deems the “fair intendment” of the term, as used in P.A. 95-144, to include “all advice to clients and all action taken for them in matters connected with the law.”  State Bar Association of Connecticut v. Connecticut Bank & Trust Co., 20 Conn. Sup. 248, 259 (1957), citing In re Duncan, 83 S.C. 186, 189.  The Commission therefore concludes that the negotiation, by an attorney, of a lease or other contract establishing the legal rights and responsibilities of his or her client constitutes “the practice of law” within the meaning of P.A. 95-144.  Nothing herein shall be construed as an interpretation of the term “practice of law” as used in Conn. Gen. Stat. §51-88.

By order of the Commission,

David Nassef
Chairperson