McGeorge School of Law

Helping Your Client's Legal Problem by Changing the Law

May 29, 2015

Chris Micheli, '92, and Jennifer Barrera

Chris Micheli, '92, and Jennifer Barrera

By Chris Micheli, '92, and Jennifer Barrera

Chris Micheli, '92, is an attorney and registered lobbyist with the Sacramento government relations firm of Aprea & Micheli, Inc. who writes articles frequently for Capitol Weekly. Jennifer Barrera is an attorney and Policy Advocate with the California Chamber of Commerce.

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. In most instances, when you are practicing law, you interpret the law as written based upon application of cases and statutes to the specific facts of your client's case.

While any lawyers will apply the facts of their 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.

There are considerable benefits for a lawyer to understand the lawmaking and rulemaking processes. When appropriate, changing the law should be an option that is provided to your client. There are considerable benefits for a lawyer to understand the lawmaking and rulemaking processes. For example, knowing how laws are made will assist an attorney with statutory construction. It opens one's eyes to how difficult it often can be to write a law or regulation clearly that ensures that the drafter's intent is easily understood by those applying the law or regulation to real-life situations in the future. In addition, being exposed to the lawmaking process will help a lawyer to provide comprehensive advice to his or her clients on how to solve their legal problems. When appropriate, changing the law should be an option that is provided to your client.

What are some of the differences between being a lawyer and a lobbyist? According to McGeorge School of Law Professor Thomas Nussbaum, "much of what we study in law school involves the resolution of legal disputes between parties. We focus on such aspects as whether one party has violated or infringed upon the rights of another set forth in statute or the common law and whether the plaintiff has a right of action under statutory or common law standards." Under this adversarial system, he explains, the role of judges and juries is to apply the law and determine which side has prevailed in arguing its case.

In contrast, Professor Nussbaum states, public policy development and changing the law focus on what the appropriate legal standard should be. In this regard, lobbyists focus on such aspects as whether government should promulgate a statute or regulation, establish a funding priority, or take a course of action to address a problem that exists or is argued to exist, and whether current legal standards are insufficient or unjust and need to be revised for the future.

At its foundation, according to Professor Nussbaum, public policy development is thus very different from the usual practice of law. With public policy development, "we are looking to the future-how society and the interests of the public will be better served by a new or different policy. Fundamentally, we must understand and accept that there is almost never one right or one just answer when it comes to public policy. Our earnest research and analysis may cause us to believe we have found the one right and just answer. In the arenas of public policy change, these values, preferences, and philosophical viewpoints are battled out, balanced, and ultimately decided upon."

California has essentially five public policy arenas for lawyers to understand: Legislature (through legislation and adopting statutes); the People (through the initiative and referendum processes); Governor (through Executive Orders and directives to agencies to implement statutes); state agencies and departments (through adopting or amending regulations and enforcement and interpretation of statutes and regulations); and, state courts (through decisions, consent decrees, class actions, injunctions, etc.).

What should you do as a lawyer for your client? A lawyer should complete a policy analysis of the issue facing your client and potential changes to the law - either statute or regulation - that would benefit your 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.

What is a lobbyist? The Political Reform Act (PRA) of 1974 basically defines a lobbyist as someone who is paid to influence legislative or administrative action. This equates to legislation at the State Capitol and regulations at state agencies and departments. For administrative actions, the PRA covers the quasi-legislative rather than the quasi-judicial actions of state agencies and departments.

What does a lobbyist do? Typically a lobbyist provides information and attempts to influence policy-makers to change or not change the law by supporting or opposing legislation pending at the State Capitol. This type of work can be done for legislation or regulations. There are several types of lobbyists including "in-house" lobbyists for companies and associations, lobbyists employed by state and local governments, and those who contract directly with lobbyist employers.

Lobbyists are regulated by the Fair Political Practices Commission and file quarterly documentation with the Secretary of State. There are registration requirements, disclosure filings, gift limitations, and campaign contribution limitations. All of these disclosure statements can be found on the Secretary of State's Political Reform Division website.

What is the typical background of the Capitol's advocates? 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 in that they represent their clients before decision-makers and engage in written and oral advocacy. Among the services provided by lobbyists are: administrative advocacy; legislative advocacy - where most firms operate; 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. There are over 1,200 registered lobbyists, over 400 lobbying firms, and more than 2,500 lobbyist employers in the State of California. By comparison, there are over 12,000 registered individuals lobbying Congress.

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 through the 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. A lobbyist contributes to the lawmaking and rulemaking processes because these processes are fundamentally deliberative ones which require knowledge and effective advocacy. A lobbyist can contribute to these processes by explaining the impact of proposed legislation or regulations on the client.

As a lawyer advising your client, you should ask questions in hiring a lobbyist, such as: 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 key obstacles they face in doing so: Is there sufficient policy justification to make the change in law? Are there any fiscal concerns with the proposed law change? Which group(s) have a different view? How can they impact the 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.