Lawyers Lobbying Municipal Officials

When is it improper for an attorney representing a private client to communicate with a municipal official? This topic was explored at a recent panel discussion presented by the Municipal Law Section of the New York State Bar Association in which I participated.

Lawyers representing private clients often make lobbying communications at the municipal level, which may subject the attorney to registration and reporting requirements of the NYS Lobbying Act and/or applicable local law (such as New York City’s lobbying law). We debated whether a lawyer’s lobbying communications to public officials are, or should be, restricted by the Disciplinary Rule of the Lawyer’s Code of Professional Responsibility that prohibits lawyer contacts with parties represented by another attorney (in this case a municipal attorney or outside counsel retained by the municipal entity).

Under the no-contact rule, the questions to be examined are:

(1) Is the municipal official considered to be a “party” in the matter that is the subject of the communication?

(2) Is the municipal official represented by a lawyer in that matter?

(3) Does or should the private lawyer know that the municipal official is represented by counsel?

(4) Regardless of any of the above, is the communication authorized by law? For example, is it protected under the First Amendment right to petition government?