Lawyers frequently act as lobbyists. Not surprisingly, courts have a difficult time distinguishing between protected legal advice and nonprotected lobbying advice.
In Pace-O-Matic, Inc. v. Eckert, Seamans Cherin & Mellott, LLC, Civ. No. 1:20-CV-00292, 2024 U.S. Dist. LEXIS 77113 (M.D. Pa. Apr. 29, 2024) the court addressed documents generated by the Eckert Seamans law firm in its role as a lobbyist. The court understandably acknowledged that lobbying conducted by a lawyer is not automatically privileged, but likewise recognized “[t]he fact that a lawyer occasionally acts as a lobbyist does not preclude the lawyer from acting as a lawyer and having privileged communications with a client who is seeking legal advice.” Id. at *11. The court held that the magistrate judge had generally done a good job, but had erroneously denied privilege protection for a “memorandum [that] addresses how to achieve legislative objectives within the context of existing state law” — because the “application of legislative objectives to the existing legal framework constitutes legal advice.” Id. at *19. The Third Circuit just accepted an appeal, so it will be interesting to see what happens next. Pace O Matic Inc. v. Eckert Seamans Cherin & Mellott LLC, No. 24-cv-01984 (3d Cir. May 31, 2024).
Lawyers who act as lobbyists would be wise to consider opinions like this and similar judicial analyses of the hazy line between legal advice and lobbying advice.
