At the moment, virtually all law firms which lobby in Brussels are absent from the voluntary register because they refuse to sign-up citing the need for “professional secrecy”, especially when it comes to disclosing their clients. Such missing law firms include: Clifford Chance, DLA Piper, Field Fisher Waterhouse, Freshfields Bruckhaus Deringer, Mayer Brown and WilmerHale, as well as Covington & Burling, Hogan Lovells and Baker Botts, US law firms which are increasingly active here in Brussels on the EU-US trade deal, TTIP.
Of course client confidentiality applies to law firms carrying out legal representation work, but lobbying work is different. If law firms lobby EU decision-makers (and many of them do) they should be required to sign the lobby register. No ifs and no buts.
Recently Commissioner Šefčovič (who is responsible for the lobby register) together with Rainer Wieland MEP (the chair of the working group to review the lobby register, and a partner in a law firm himself) had a meeting with the CCBE (the Council of Bars and Law Societies of Europe), an organisation that has, for years, fiercely resisted any obligation for law firms to register and disclose lobby activities. Šefčovič seems keen to find a way out for law firms.
(Interestingly, ALTER-EU has repeatedly asked Šefčovič for a direct meeting since the start of his mandate in 2010 to discuss various issues relating to the need to toughen-up lobbying transparency and ethics regulation. Our most recent request was turned down only yesterday so we have had no opportunity to put our proposals for how to counter the law firm boycott of the lobby register direct to the Commissioner.)
Last week, Šefčovič told MEPs on the Budgetary Control Committee that the Commission is now working together with law firms to find solutions to the issue, arguing that there are “major legal and constitutional issues” to getting law firms to sign up to the lobby register.
It seems that Šefčovič and Wieland are working on creating an exemption for law firms within the lobby register and there have been several models floated for this so far. These have been:
A possible exemption from client disclosure rules for law and consultancy firms which claim a need for client confidentiality based on an ad-hoc, derogative and exceptional formula;
A possible exemption from client disclosure rules on the grounds of “personal integrity or safety”;
A possible exemption to have certain information withheld from their registration for up to six months if they can prove disclosure would “seriously hinder the economic or financial interests of [their] client or firm”.
But why this exceptionalism for law firms? It is, in fact, not necessary to give special privileges to law firms that lobby.
Šefčovič apparently told MEPs last week that Spanish law is an obstacle to law firms signing up to the lobby register, but in fact there are at least two Spanish law firms (Salesas tres centro de estudios and Estudi Jurídic Ambiental SLP) in the register already that disclose their clients, so perhaps those major legal and constitutional issues may have been exaggerated by the law firms?
When law firms go beyond the traditional activities in the legal arena for which their bar association rules were created and enter the lobbying business, then they should simply be instructed to register and disclose the clients for which they lobby. When the lobby register review group finalises its recommendations to improve the register, strong action to tackle the boycott by law firms and to force them to disclose their lobby clients should be high up the list.
No ifs and no buts.