Black’s Law Dictionary defines lobbying as “all attempts including personal solicitation to induce legislators to vote a certain way or to introduce legislation.”  The term lobbyist originally comes from the fact that such attempts often took place in the lobby adjacent to the legislative chambers.  While for some, the term lobbying has a negative connotation, in some form it is inevitable in any democratic government. 

   Far beyond attempting to influence legislation, lobbying also include ex parte (“behind the scenes and off the record”) contacts that relate to virtually every decision an elected official may make, including quasi-judicial matters.  These matters require the adoption of findings, and while not always, generally apply to a particular piece of property.  Examples include decisions granting or denying of variances, planned development, conditional use, special use, and coastal development permits, and various appeals.  Many politicians disclose such ex parte contacts prior to the commencement of hearings to assure a level playing field.

   Lobbying also occurs when there is contact with the staff of legislators and even with the staff of any jurisdiction.  Some of the most influential lobbying occurs at staff level in an attempt to obtain favorable staff recommendations.

   The purpose of lobbyist regulation is to ensure that decisions are reached in an open and “transparent” atmosphere – disclosure, not prohibition, is the objective.  At the heart of the matter is the requirement for due process. 

   The due process clause of the Fourteenth Amendment of the United States Constitution requires that any deprivation of life, liberty or property by a judicator must be preceded by notice and an opportunity for a hearing.  Such due process includes a fundamental tenet that the decisionmaker will render the decision based upon evidence presented at the hearing and not from evidence or other influences which have occurred outside of the hearing (and official record).   The constitutional concept of equal protection is also involved.  An action by a government agency must be fair and reasonable. 

   It is hard to argue against having laws that require disclosure of lobbying activities.  However, do these registration and disclosure requirements also relate to lawyers?

   Baron v. City of Los Angeles, 86 Cal. Rptr. 673 (1970) reviewed the issue of whether the City of Los Angeles could compel the registration of all persons (including lawyers) who engage themselves for the purpose of attempting to influence an action on municipal legislation by the city council, its committees, boards or commissions. The court held that to the extent the Los Angeles lobbying ordinance purports to govern the “practice of law” within the State Bar Act, it invades a field of regulation that is preempted by state law.  Further, the court held that lawyers, whose services involve appearing for clients in proceedings before state agencies, fall within that definition, and therefore need not register.  The court concluded that an attorney representing a client when appearing before a city board or commission concerning a quasi-judicial decision on a matter involving factual and legal questions cannot be compelled to register as a lobbyist.

   The Baron case is still the law of the land, and in my opinion, appearing as a lawyer in a hearing of a quasi-judicial matter involves the practice of law and should not be considered lobbying.  But what about all the other lobbying activities that occur before and after such a quasi-judicial hearing?  And what about attempts by others to influence legislative and administrative matters?

   Most jurisdictions have adopted definitive rules and guidelines concerning registration and disclosure.  For example, the City of San Diego Municipal Code provides registration and disclosure requirements for those who meet minimum compensation thresholds and lobby within the City of San Diego.  Those that qualify as a lobbyist must register, pay a $40 annual fee (and $15 per client), and file quarterly reports.  These reports must include:  1) lobbyist employment information, 2) the name and address of your client and its business, 3) the nature of the lobbying (the municipal decision), 4) the amount of money that the client has paid the lobbyist (for the quarter), and 5) a summary of activity expenses made by the lobbyist to the decisionmaker(s).

   Essentially lobbying is defined as a direct communication with a City Official for the purpose of influencing a municipal decision.  Direct communication is defined as talking to or corresponding with a City Official in a way that such communication does not become part of the public record.  A City Official is not just the elected Mayor and Council Members, but also encompasses City boards, City consultants, and any other City official or employee who, as part of his or her official duties, participates in the consideration of municipal decisions (other than decisions which are purely clerical, secretarial or ministerial). 

   Clearly, most of what is defined as lobbying in the City of San Diego Ordinance can, and is done by anyone – not just members of the State Bar.  So, should lawyers register as lobbyists?

   In my opinion, even though lawyers may attempt to hide behind the veil of Baron, there is substantial risk of violating the local lobbying rules and regulations.  While registration and disclosure may be a nuisance, the overriding goal of such laws is to provide a level playing field no matter what side of the fence you may stake your claim.

   While the line between lawyering and lobbying may be illusive, the requirement for lobbyists to register and make the necessary disclosures is abundantly clear.  The importance of compliance with the applicable requirements cannot be overstated.  The failure of a lobbyist to properly register and report can result in fines, sanctions and even criminal prosecution.