Vol. 3, No. 4, Pg. 28. The Lawyer as Lobbyist: Where Do You Draw the Line?.

• Author: By David L. Thompson

South Carolina Lawyer

1992.

Vol. 3, No. 4, Pg. 28.

The Lawyer as Lobbyist: Where Do You Draw the Line?

28The Lawyer as Lobbyist: Where Do You Draw the Line?By David L. ThompsonConsider the lawyer who represents a client before a state agency, board or commission in a pending administrative action. Perhaps the agency has denied a permit or the commission is reviewing citations issued against the client. The lawyer argues the case in the alternative: either the existing regulations do not apply to the client's situation or the regulations should be revised to avoid an injudicious result.

From the client's point of view, victory under either argument would be just as sweet. The lawyer can be satisfied that the client's interests have been represented with creativity and zeal. However, under South Carolina's new Ethics, Government Accountability, and Campaign Reform Act (the "Act"), the lawyer's actions could subject both the lawyer and the client to registration and reporting requirements, prohibitions and civil and criminal liability.

Clearly, pleading the client's case before the administrative tribunal is "lawyering" which is free from coverage by the new ethics law. On the other hand, urging a change in existing regulations, as described in this scenario, is just the sort of action that can trigger the regulatory scheme of the law. And this is only one of many problem areas which lawyers must now anticipate when representing clients before state agencies, boards and commissions, as well as the General Assembly and statewide constitutional officers.

The Scope of Coverage

Unlike the old lobbying law, which applied only to dealings with the General Assembly, the new law touches virtually all levels of state government. Lawyers who engage in direct communication with legislators and state officials on behalf of their clients will become lobbyists when those communications involve the promoting or opposing of any legislation, any covered agency actions or any covered gubernatorial actions. "Covered agency actions" means the "proposal, drafting, development, consideration, amendment, withdrawal, or promulgation of a regulation" under the Administratiuve Procedures Act (Section 2-17-10(2)). "Covered gubernatorial actions" involve the approval or veto of legislation, consideration of executive orders, appointments or the awarding...