DOL (Department of Labor) Persuader Rule Undermines Attorney-Client Privilege, Attorney Generals Say
Fourteen state attorneys general have written to Secretary of Labor Thomas Perez complaining that the Department of Labor’s proposed “persuader” rule would undermine attorney-client privilege and have requested the rule “be withdrawn as drafted.”
The Labor-Management Reporting and Disclosure Act (LMRDA) requires reporting to the DOL of “[a]ny agreement or arrangement with a labor relations consultant or other independent contractor or organization pursuant to which such person undertakes activities where an object thereof, directly or indirectly, is to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing….” Attorneys may be considered consultants under the law. Exempt from this reporting requirement are situations where the consultant gives or agrees to give “advice” to an employer. This is the “advice exception.”
The proposed rule, among other things, would severely curtail the advice exception to the reporting requirement, and therefore, limit much of the legal advice now provided by attorneys. That advice will become reportable if the rule is implemented.
The attorneys general expressed concern that the rule is overly broad and may discourage employers from seeking legal representation. They wrote,
“[t]his new rule…would dramatically change well-established precedent by requiring the reporting of advice related to persuasion of employees, regardless of whether the lawyers who provide the advice communicate with anyone other than their employer-clients.”
The letter echoes similar concerns raised by the American Bar Association in 2011.
The rule was scheduled to take effect in March 2014, but the effective date has been postponed indefinitely. See U.S. Department of Labor Delays Implementation of the Revised ‘Persuader’ Rule.