I often avoid writing about sensitive topics, out of cowardice. One of these has been the hyper-sensitive subject of governmental lobbying by lawyers, which is of interest both in the UK and in the EU.
There are opposing sides in the debate: government authorities and transparency NGOs want full disclosure of all lobbying activities, including by lawyers; while bars and law societies, whether my own organisation - the Council of Bars and Law Societies of Europe (CCBE) - or the Law Society, argue that confidentiality and legal professional privilege (‘professional secrecy’) mean that lawyers cannot disclose their clients’ details (in this case, the client’s name, and overall fees obtained from lobbying) on a public register.
The argument has been batted backwards and forwards over the last few years, with – in the EU at least – the public affairs consultancies joining the side against lawyers, on the grounds that, if they are under pressure to register, why should competitor law firms be able to escape the need?
According to the most recent annual report of the EU lobbying register, six member states have what is called ‘interest representation regulation’ at the national level, among which are France and Germany. The UK is listed in the group of a further six that are considering it. The UK coalition government has promised legislation by the end of this parliament.
At EU level, there has been a voluntary register for over a year now, run jointly by the European Parliament and the European Commission. The EU claims that it is in line with international standards, such as the Recommendation of the OECD Council on Principles for Transparency and Integrity in Lobbying. Many current EU registrants (not the CCBE) want the register to be made compulsory, but the commission and Euro parliament argue that that would mean pursuing nearly-impossible objectives, since it would require either a change to the Treaty or a decision by unanimity of the European Council. So, it looks as if the register will remain voluntary for the time being.
Solutions are being suggested by the register’s authorities to some of the problems faced by lawyers. On the question of professional secrecy, one idea - apparently already adopted in Quebec - is that a lawyer faced by such a question would request a confidentiality order from the registration authority. If the authority is persuaded that there would be a material risk of damage to the interests of the client or the lawyer, then the information can be made exempt from registration.
This brings us to another issue faced by lawyers. The CCBE has in the past emphasised the principle of professional self-regulation, which would be breached if the government – or here the commission or parliament – were able to impose a sanction on a lawyer in case of non-compliance with the rules of the register. I have just suggested above that the commission might be able to make a decision on the relationship between a lawyer’s ethical code and the register’s code of conduct – would it not be worse if the commission could sanction a lawyer who is properly sheltering behind the bar’s ethical rules?
A compromise being discussed is that the lawyer involved could ask his or her bar for a ruling, which the commission (or other authority) would take into account in its final decision.
This is one of those areas – cropping up more frequently these days – where everyone can agree with the objective of the initiative (‘Transparency is a good thing’, ‘Fighting money laundering and corruption is a good thing’), but the specific implementation relating to lawyers rubs up against long-agreed core principles of the legal profession. In this case, compromises are being advanced, and the question for the bars – which the CCBE will soon examine – is whether the compromises are acceptable.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs