ABA Opposes DOL Proposed Rule on “Persuader Activities”

Reinterpretation of this rule could threaten client-lawyer confidentiality

WASHINGTON, D.C., Sept. 22, 2011 -  _ President Wm. T. (Bill) Robinson III submitted a comment letter yesterday to the U.S. Department of Labor on behalf of the ABA, urging the department to reconsider a proposed rule on the Labor-Management Reporting and Disclosure Act.  The department’s proposed rule would substantially narrow the longstanding “advice” exemption to the “persuader activities” reporting rule issued under the act in a way unintended by Congress, and would require many labor lawyers and law firms to report sensitive and confidential client information to the government.

“By expressing concerns over the Proposed Rule and urging the Department to reconsider,” wrote Robinson, “the ABA is not taking sides on a union-versus-management dispute, but rather is defending the confidential client-lawyer relationship and urging the Department not to impose an unjustified and intrusive burden on lawyers, law firms and their clients.”

The proposed rule threatens to undermine Congress’ intent by nullifying the advice exemption included in the original act and, if adopted, the rule would require lawyers to disclose a substantial amount of confidential client information, including the identity of the client, the general nature of the legal representation and a description of the legal tasks performed.  The proposed rule also would require lawyers to disclose a great deal of confidential financial information about clients that is unrelated to persuader activities the act intends to monitor.

The ABA also urges the department to withdraw or modify the proposed rule-and reaffirm its longstanding interpretation of the advice exemption-because the new rule threatens to violate the ethical duties of lawyers outlined in the ABA Model Rule of Professional Conduct 1.6 dealing with “Confidentiality of Information.”  ABA Model Rule 1.6 and the many binding state rules of professional conduct that closely track the ABA Model Rule protect the types of confidential client information that the department would have lawyers disclose.

The department’s proposed rule could also seriously undermine both the confidential client-lawyer relationship and the employers’ fundamental right to counsel.  To encourage trust and candor between the client and its lawyer, their exchanges must be confidential.  “Only in this way can the lawyer engage in a full and frank discussion of the relevant legal issues with the client and provide appropriate legal advice,” Robinson wrote.  By requiring clients and their lawyers to report confidential client information to the government, Robinson warned, “the Proposed Rule could very well discourage many employers from seeking the expert legal representation they need.”

Robinson’s letter is available here .

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Comments (2)

  • chris
    9:44 PM September 24, 2011

    is it unconstitutional?

  • ming
    9:46 PM September 24, 2011

    i do not think so.