The American Bar Association submitted a letter today to the U.S. Department of Labor to express its “serious concerns” over a proposed rule that would “substantially narrow” the longstanding interpretation of what lawyer activities constitute “advice” to employer clients.

Currently, most work from attorneys is exempt from the substantial reporting requirements in federal law that require “persuaders” (or, for ease of understanding, those brought in during a union campaign to help persuade employees to vote against unionization) to report their activities.

You can download the entire letter here.

The ABA’s position here is important because on many labor & employment matters, it abstains because there is typically not a consensus between management-side and employee-side attorneys.  This issue, however, touches all attorneys and is necessary, in the ABA’s words , to defend “the confidential client-lawyer relationship” and would impose an “unjustified and intrusive burden on lawyers and law firms and their clients”.

The rule is still in its proposed stage, but the ABA’s input here could be quite important for another reason as well.  The ABA’s involvement in the “red flag” rules was crucial to getting that rule overturned. Time will tell if the ABA’s involvement here will have a similar impact.

Seth Borden of Labor Relations Today had a good recap of these proposed rules back in July.


  • Bill Lurye

    To the extent your post implies that the Labor and Employment section agreed with the sending of the ABA letter, it did not. There was no consensus in the Section on whether the letter should be sent; the ABA relied on an outdated resolution of its House of Delegates to say it authority to do so. Here’s the letter that was sent by the Section to the ABA:

    September 9, 2011

    Wm. T. (Bill) Robinson III
    President (2011-12)
    American Bar Association
    321 North Clark Street
    Chicago, IL 60654-7598

    Re: U.S. Department of Labor’s Draft Persuader Regulations
    Interpreting the Advice Exemption of the LMRDA

    Dear President Robinson:

    The Section of Labor and Employment Law operates on the basis of consensus between management attorneys on the one hand, and union and employee attorneys on the other. We are deeply divided on the Department of Labor’s draft persuader regulations interpreting the advice exemption of the LMRDA and any impact of the proposed regulations on attorney-client privilege. Because the letter does not reflect a current consensus of the Section, it will not have any comments on this topic, and we would appreciate the planned letter not making any reference to the Section of Labor and Employment Law.



    Richard T. Seymour Stewart S. Manela
    Chair Chair-Elect

    cc: Gordon E. Krischer, Immediate Past Section Chair
    Joel A. D’Alba, Section Vice Chair
    Joyce Margulies, Section Vice Chair