Advisory Opinion No. 1996-3

Attorneys’ Communications Regarding Policies Or
Directed To Persons Outside Agency With Official
Jurisdiction Not Exempt From Definition Of
Lobbying As The “Practice Of Law”

For purposes of the Code of Ethics for Lobbyists, Conn. Gen. Stat. Chapter 10, Part II, the term “lobbying” is generally defined to include communications “with any official or his staff in the legislative or executive branch of government or in a quasi-public agency, for the purpose of influencing any legislative or administrative action.”  Excepted 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 . . . [or] any rule or regulation.”  Conn. Gen. Stat. §1-91(k)(3).  Although the term “the practice of law” is not defined in the Code of Ethics, the Commission has accepted, as a general principle, that the term will include “all advice to clients and all action taken for them in matters connected with the law.”  See State Ethics Commission Advisory Opinion No. 95-12, 57 Conn. L.J. No. 9, p. 4C (August 29, 1995).  The petitioner has now asked whether the term encompasses first communications regarding an agency’s adoption of generic policies, or second, those directed to persons outside of the agency with official jurisdiction over a given matter.

An attorney’s communications regarding “the proposal, drafting, development, consideration, amendment, adoption or repeal of any rule or regulation” constitute “lobbying,” regardless of whether they might also constitute “the practice of law.”  See Conn. Gen. Stat. §1-91(k)(3).  By Regulation, the State Ethics Commission has confirmed that generic policies “which affect the rights, duties or privileges of classes of persons” are analogous to rules and regulations and will be treated similarly.  Regulations of Connecticut State Agencies §1-92-42a(c).  An attorney’s communications regarding generic policies of such description will, therefore, constitute “lobbying.”

Prior to the 1995 legislative amendment to the Code of Ethics for Lobbyists which established the “practice of law” exemption (P.A. 95-144), the State Ethics Commission promulgated Regulations of Connecticut State Agencies §1-92-42a(a)-(e).  Section 1-92-42a(a) exempted from the definition of “lobbying” a number of activities, most of which are now identifiable as “the practice of law” under the Commission’s current interpretation.  Nevertheless, Section 1-92-42a(b) provided that communications for the purpose of influencing the outcome of a matter, made to persons outside of the agency which has official jurisdiction over the matter, were not exempt from the definition of “lobbying,” even when the subject of the communications would be otherwise exempt.  For example, contact with the Governor’s Office requesting intercession in a contested case before the Workers’ Compensation Commission would be “lobbying,” even though representation of the client before the WCC would be exempt.  See Regulations of Connecticut State Agencies §§1-92-42a(a)(3), (b).

Public Act 95-144 was intended to, and did no more than, codify the above regulatory language.  Most particularly, the “practice of law” amendment did not exempt from the definition of “lobbying” the very conduct, i.e., contact with officials outside the agency with official jurisdiction over a matter, which impelled the original expansion of the Lobbyist Code’s definition of “administrative action” (P.A. 94-69).  The Commission therefore concludes that an attorney’s communications with persons outside of the agency with official jurisdiction over his or her client’s matter constitutes “lobbying,” even when such communications might also be deemed “the practice of law.”

By order of the Commission,

David T. Nassef
Chairperson