Ethics: Advisory Opinion No. 2002-20

Advisory Opinion No. 2002-20
Advisory Opinion No. 2002-20

Application Of The Contingent Fee Ban To Attorneys Appearing Before
The General Assembly Regarding Claims Against The State

Persons wishing to sue the State must, in general, submit their cases to the Claims Commissioner. Conn. Gen. Stat. 4-142. Claimants that have not submitted their causes of action within the appropriate statute of limitations may seek a special act from the General Assembly allowing the filing of the claim. Conn. Gen. Stat. 4-148(b). Additionally, the General Assembly must authorize payment of any claim over $7,500, may accept or alter any recommendation of the Claims Commission, may reject any such recommendation and may grant or deny the claimant permission to sue the State. Conn. Gen. Stat. 1-159.

It is neither unusual nor inappropriate for an attorney to represent a claimant before the Claims Commission or in Court on a contingent fee basis. See Rules of Professional Conduct, Rule 1. 5(c). The State Ethics Commission has been asked whether such contingent fee arrangements are also appropriate in any representation before the General Assembly which may be required to pursue or effectuate a claim against the State.

Pursuant to Conn. Gen. Stat.1-97(b), "No person shall be employed as a lobbyist for compensation which is contingent upon the outcome of any administrative or legislative action". Under Conn. Gen. Stat. 1-91(k), "Lobbying" "means communicating directly…with any official or his staff in the legislative or executive branch of government…for the purpose of influencing any legislative or administrative action." While "communications by an attorney made while engaging in the practice of law" before an executive agency are exempt from the definition of "Lobbying", such practice regarding legislation or regulations is not. Id. See, also, Advisory Opinion No. 95-13, 57 Conn. L. J. No. 16, p. 1E, (10/17/95) "Lawyer Who Works To Affect Legislation Is Lobbyist As That Term Is Defined By Code Of Ethics For Lobbyists": wherein the Commission held that any attempt by an attorney to affect "Legislative action" was lobbying if the relevant financial threshold was met.

Therefore, an attorney appearing before the General Assembly on behalf of a claimant may not do so on a contingent fee basis, if the potential remuneration is $2,000 or more (the threshold for registration as a lobbyist). While this conclusion clearly follows from the above cited definitions, it does not resolve the very real concerns of claimants; a substantial number of whom may not have the financial resources to pursue their claims on a non-contingent, fee for service basis. There are, however, two alternative methods to address these concerns. First, attorneys representing such claimants may avail themselves of an exception to the definition of "Lobbyist": "Any individual or employee who receives no compensation or reimbursement specifically for lobbying and who limits his activities solely to formal appearances to give testimony before public sessions of committees of the general assembly…and who, if he testifies, registers his appearance in the records of such committees…" Conn. Gen. Stat. 1-91(l)(4).

An attorney adhering to this exception may represent a claimant before the General Assembly's Judiciary Committee while avoiding the necessity to register as a lobbyist and the attendant ban on contingent fee lobbying. Said adherence would permit not only oral testimony and related incidental communications but also the submission of written testimony before, at the time of and subsequent to the Committee hearing. If this alternative is deemed insufficient, the second option is for the General Assembly to consider a specific legislative exemption for the representation in question.

By order of the Commission,

Rosemary Giuliano

Content Last Modified on 9/7/2005 8:04:20 AM