Advisory Opinion No. 1996-23

Prohibition of Contingent Fee Lobbying Contracts

Commission Attorney Brenda Bergeron has asked whether: (1) a client lobbyist may withhold the last several months’ retainer if the outcome of the communicator’s effort does not meet 100% of their expectations; and (2)whether a client that has agreed to pay a fixed retainer, but is allowed to spread out their payment over a 12 month period, may stop making payments because of either budgetary or other concerns.

The Code of Ethics for Lobbyists, Chapter 10, Part II, Connecticut General Statutes, provides that "No person shall be employed as a lobbyist for compensation which is contingent upon the outcome of any administrative or legislative action". Conn. Gen. Stat. § 1-97(b). This provision was enacted to prevent the undue pressure for lobbying success, and consequent pressure to engage in unethical conduct, inherent in contingent fee arrangements. See, Advisory Opinion No. 94-3, 55 Conn. L.J. No.37, p.6D, March 15, 1994. Therefore, when a communicator and client lobbyist enter into a contract for lobbying services, the terms of that contract may not be changed because of dissatisfaction with the outcome of the lobbying effort or because the communicator lobbyist did not meet the client’s expectations.. The client must pay the agreed upon fee, and if dissatisfied, is left with the option of not renewing the contract for another term.

Regarding Attorney Bergeron’s second question, the retainer has been fixed to provide services for a specified time or specific project. The communicator lobbyist has merely agreed to allow this obligation to be paid over a period of time. An unanticipated budgetary constraint or other change in company policy may be a contingency which will cause the client to attempt to modify the lobbying contract. However, it is not a contingency which is prohibited by § 1-97(b) since it is not based on "the outcome of any legislative or administrative action". Therefore, if the client stops making payments because of budgetary constraints or other changes in company policy, it will not be a violation of the Code. Rather, the communicator will have to pursue other available legal remedies in order to obtain full payment.

By order of the Commission,

Maurice FitzMaurice
Chairperson