A proposed rule pending in the Department of Labor (DOL) has the legal community in an uproar. The rule would upend 50 years of precedent that generally exempted lawyers from a law requiring those helping employers deal with unions to disclose those client relationships and related fees. Management-side labor lawyers claim the proposed change would create a Hobson’s Choice: risk censure and possible disbarment for violating attorney-client confidentiality, or risk criminal prosecution for failing to file disclosure reports.
The Labor Management Reporting and Disclosure Act (LMRDA), passed in 1959, requires disclosure of fees paid to and services provided by “persuaders,” consultants hired to influence employees not to unionize. Lawyers traditionally have been exempt as long as they didn’t directly communicate with employees, under a provision known as the advice exemption.
