Far too often attorneys resign themselves to the supposition that they must work within the confines of existing law. We presume that the law of the land is static and immovable, and that the only solutions available to our clients are constrained to those which can be argued as reasonable interpretations of existing statutory language and case law. Under this paradigm, the best possible outcome we can hope to achieve is limited to a modest, incremental change, inextricably anchored to the language of the past. If we consider the scope of our practice in this context only, we may be selling ourselves – and our clients – short.
So, then, how can we help our clients adapt to the ever-changing world around us with innovative and creative solutions? The answer is often overlooked but simple: if the law doesn’t suit your client’s needs, change it!
Our local, state, and federal governments are designed to transform over time, and, though it is every citizen’s right to participate in the legislative process, lawyers are preeminently qualified to affect this change. In fact, many lawyers, myself included, have established an entire practice devoted to “lobbying.” And, no, it’s not as spurious as you may think.
Lobbying is using the legislative and regulatory processes to solve your client’s problems. Attorneys working in the legislative environment are zealous, disinterested advocates, just like any other lawyer. The only difference between lobbying and the “traditional” practice of law is that lobbying is less constrained by precedent and formality (i.e., standing requirements, rules of evidence, etc.); hence, attorneys operating in this universe are generally free to propose more creative and innovative solutions than what would otherwise be available in the “traditional” practice of law. So long as you can convince a simple majority of the relevant voting body that your proposal is a good idea, you can change the law to suit your, or, in this instance, your client’s needs. Here’s how to get started:
• Identify the problem and propose a solution. Does solving your client’s issue require a change in existing law, or do you need to craft an entirely new code section to address an emerging issue? For example, decriminalizing marijuana required a change in existing law, whereas creating a commercial market for adult-use marijuana would require the creation of an entirely new chapter of the Virginia Code. Once you identify the issue, draft language that, if codified, will ameliorate your client’s concern.
• Determine the appropriate legislative body. We are all familiar with the concept of subject matter jurisdiction amongst the various courts. The same concept can be applied to our legislative bodies as well. There are two important principles to keep in mind here: American federalism¹ and, at least in Virginia, the Dillon Rule.² In light of these doctrines, it is safe to assume that most of your issues will likely fall within the bailiwick of the General Assembly, but, of course, Congress would be the appropriate venue for proposed changes to Federal law and the city council or county board of supervisors for local ordinances.
• Chart the path your issue is likely to follow. Most legislative bodies assign various committees and subcommittees to vet legislation dealing in a particular subject matter. Determine which committees and subcommittees are likely to deal with your particular issue to be efficient with your time. For example, if you are pushing a bill seeking to ban a particular farming practice in the Commonwealth, your immediate concern should be to gain the support of a majority of the members of the House or Senate Committees on Agriculture. If successful, the bill may be re-referred to the Appropriations Committee if it has a fiscal impact to the state before moving on to the full House or Senate floor. In that instance, your target audience would shift to the members of the Appropriations Committee, so on and so forth.
• Find a legislative “vehicle.” Are there any bills already in play that might address the issue? If so, hop on the bandwagon and help to push that bill through the legislative process. Generally, however, you will not be so lucky, and you will need to find a legislator willing to carry your bill. Ideally, you would find a favorably inclined member of the committee with subject matter expertise over the topic to serve as patron. The chair is the best option, but if that does not work, try to get a member of the committee that sits in the majority party. Another option would be to pitch your client’s home legislator, otherwise it is catch as catch can. The idea here is to find a legislator with a vested interest in either the subject matter or the client.
• Build a coalition. Once you have a legislative vehicle in place, find similarly interested parties to help support the initiative. The broader your support the better. Many hands make for light work.
• Lobby like a pro. Any seasoned lobbyist will tell you most of the work is done before a bill is ever called before a committee. Yes, you will have the opportunity to testify for or against the bill during the committee’s hearing, but most legislators already have made their mind up by that point. Make sure to schedule meetings with the relevant legislators on the committee before the scheduled hearing.
During the legislative session, you may have as little as 10 minutes to brief a legislator on your bill. Your goal is simple. As concisely as possible inform the legislator as to what the bill does, who it is likely to affect, and why it is necessary. It is important to be intellectually honest as well. (Your reputation for integrity is critically important in this field.) Be sure to tell the legislator who is likely to oppose the bill and why. And, finally, tailor your pitch to each legislator’s idiosyncrasies. Your points of emphasis should vary based on his or her unique values or interests.
The last step in this process is testifying before the entire committee. Public testimony is often limited to 2-3 minutes per speaker, which is why it is so important to have a more detailed conversation with legislators beforehand. Address the chair of the committee just as you would a judge. Your testimony should clearly identify your client, hit the highpoints of the bill, and, time permitting, address any anticipated counterarguments. Be prepared, however, for a legislator to interrupt you at any time to ask a question.
I encourage young lawyers to think more broadly about our role and capabilities as attorneys. Instead of merely thinking about how to work within the confines of existing law, we have the requisite tools and abilities to change the law to work for us and our clients. Though it may seem daunting at first to venture into an entirely new practice area, the purpose of this submission is to provide a brief roadmap of how you can use the skills and experience you already have as an attorney to better serve your clients and shape the world around you.
¹ The Federalist No. 45 (James Madison) (The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.). See also United States v. Morrison, 529 U.S. 598, 618 (2000) (Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.).
² Clay Wirt. “Dillon’s Rule.” Virginia Town & City. August 1989, volume 24 number 8, pages 12 to 15 (“if there is any reasonable doubt whether a power has been conferred on a local government, then the power has not been conferred.”).
About the Author
Dylan Bishop is an Associate Attorney at Eckert Seamans Cherin & Mellott, LLC in Richmond, Virginia and serves as a Third District Representative for the Virginia State Bar, Young Lawyers Division representing Judicial Circuits 6, 11, 12, 13, and 14. He provides strategic counsel to businesses and trade associations on utilizing the legislative, regulatory, and administrative processes to further their respective interests. He brings knowledge and experience from nearly every aspect of the legislative and regulatory arenas. As Chief of Staff, he led the office of the Virginia Senator who then served as Chairman of the Virginia Senate Transportation Committee and the Virginia Joint Commission on Health Care. Dylan also helped to craft the Virginia regulatory framework for transportation network companies like Uber and Lyft at the Department of Motor Vehicles. Now Dylan regularly lobbies the Virginia General Assembly and state agencies on behalf of a diverse group of business interests and trade associations. Beyond advocacy, he helps clients navigate licensing, regulatory compliance, and other complex legal issues inherent to highly-regulated industries, such as gaming, controlled substances, heavy construction, and state employees.
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