Helping Your Client’s Legal Problem by Changing the Law

By Chris Micheli

Most of our time in law school is spent reading judicial decisions as law schools traditionally focus on the development of common law. Because our legal training is based largely on case law interpretation, law students spend little time on statutory development and construction. Moreover, law schools rarely teach aspiring lawyers about how laws and regulations are made, or how to change laws or regulations to benefit their clients.

While any lawyer will apply the facts of his or her case to the law as it exists, a really good lawyer should also look closely at changing the law to benefit his or her client’s position. Lawyers today will be better able to think about changing the law (statutes or regulations) by understanding the lawmaking and rulemaking processes, as well as the role of lobbyists in these processes at the state level.

What should you do as a lawyer for your client? A lawyer should complete a policy analysis of the issue facing his or her client and potential changes to the law – either statute or regulation – that would benefit the client. The attorney in this instance needs to have an understanding of the various policymaking venues—executive and legislative branches of government primarily—and an ability to make decisions regarding the venue which provides the greatest strategic advantages and chances for success for the client.

Most importantly, you need to have a firm understanding of the area of the law and what led to the current statute or regulation and the pros and cons of your suggested change(s) to the statute or regulation. Then you need to look for a lobbyist to help you change the law.

What is the typical background of a state lobbyist? In most instances, they have acquired experience and contacts in the Capitol and then have moved to the private sector. While many lobbyists are lawyers, it is not a prerequisite. These lobbyists share similarities with lawyers in that they represent their clients before decision-makers and engage in written and oral advocacy. Among the services provided by lobbyists are: legislative and regulatory advocacy; bill monitoring and reporting; policy analysis; grassroots support; and, public relations.

Who typically hires lobbyists? Lobbyist employers are usually corporations, non-profits and the public sector (which is actually the largest spender of lobbying dollars). There is even a trade association for lobbyists called the Institute of Governmental Advocates whose members abide by a Code of Ethics. There are over 1,200 registered lobbyists, over 400 lobbying firms, and more than 2,500 lobbyist employers in the State of California.

A successful lobbyist is knowledgeable regarding the subject matter of your legislation; he or she has relationships with key legislators and policy committee staff, as well as executive  branch appointees, who will impact the particular area of the law; he or she understands the politics and policy regarding the subject matter; and, he or she is experienced in moving legislation or regulations through the respective process. The lobbyist provides information to legislators, appointed officials, and their staff. The lobbyist advocates for his or her client and opens the doors to decision-makers.

As a lawyer advising your client, you should ask the following questions in hiring a lobbyist: What is their experience in this area of the law? What are their contacts with key legislators and staff? What are their relationships with Administration officials? Are there any potential client conflicts? How much time and effort will be required to address your client’s proposal? How well do they understand your client’s issue? Have they represented similar clients before? What have been their past successes/defeats? How did they achieve them? How would they approach the issue / solve the problem for your client? What will they charge for these lobbying services?

A lawyer properly advising his or her client to change a statute or regulation should consider some of the following obstacles: Is there sufficient policy justification to make the change in law? Are there any fiscal concerns with the proposed law change? Does a change in law result it hurting one group and/or helping another? Which interest groups are lined up for and against the law change? Is there grassroots support for either side of the proposal? How has the media portrayed the proposal, if at all? Is the majority party in support or opposition? How does legislative staff view the proposal? What is the Administration’s view of the law change?

A well-rounded lawyer will appreciate that solving his or her client’s legal problem can sometimes be accomplished by changing the law when the law is not favorable to the client’s position. Understanding the role of a lobbyist in that process will better prepare the lawyer for advising his or her client about the alternative of changing the law. In today’s legal environment, providing a client with all possible alternatives will be valuable to that relationship as well.

Chris Micheli is an attorney and registered lobbyist with the Sacramento government relations firm of Aprea & Micheli, Inc.

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