Last week, the Department of Justice’s FARA Unit released a curious advisory opinion.  The new opinion stated that it replaced an advisory opinion released by the Department in December 2019, and it revised the Department’s guidance on the scope of the lawyers’ exemption to FARA.  As far as we can tell, this is the first time that the Department has withdrawn and reinterpreted an advisory opinion.  The newly released opinion also resolves a mystery that has puzzled us since early December 2020, when we first noticed that the Department had quietly, without notice to the public, removed the earlier advisory opinion from its website.

Because the Department does not announce newly posted advisory opinions, we regularly watch the FARA Unit’s advisory opinion webpage for newly posted opinions.  In early December 2020, we noticed that the opposite had occurred: the Unit quietly removed an opinion issued in December 2019 regarding the lawyers’ exemption to FARA.

Even more curious, the next day, December 4, 2020, the Department’s Deputy Assistant Attorney General for the National Security Division, Adam Hickey, delivered major remarks at the American Conference Institute’s second national forum on the Foreign Agents Registration Act.  In his remarks, Mr. Hickey offered an interpretation of the lawyers’ exemption that arguably conflicted with the position in the 2019 opinion that had just been removed from the website.

In the 2019 opinion, the Department concluded that an “in-court representation” of a foreign government would be covered by the lawyers’ exemption to FARA.  The opinion went on, however, to conclude that the lawyers’ exemption would not apply to activities that lawyers commonly undertake related to litigation.  Specifically, the Department stated that FARA registration would be required if the organization were to “provide factual responses to media inquiries about the litigation, issue press releases containing facts regarding the litigation, [or] engage in press conferences regarding” its legal representation of the foreign government.

Mr. Hickey’s remarks in December 2020 echoed some of the 2019 opinion.  For example, he stated that “representation in a proceeding itself clearly qualifies” for the lawyers’ exemption.  Unlike the 2019 opinion, however, Mr. Hickey did not rule out the application of the exemption to ancillary activities, stating that the exemption’s application to other activities “will depend” and would be judged by the “‘bounds of normal legal representation[s],’” quoting from the legislative history of the provision.  Finally, Mr. Hickey specifically stated that “calling a press conference to announce a lawsuit” would be within the lawyers’ exemption.

With the 2019 opinion withdrawn from the FARA website, and Mr. Hickey’s new interpretation publicly announced, we puzzled over the applicable scope of the lawyers’ exemption.  By their terms, advisory opinions only apply to the particular party that seeks the opinion and only for the specific facts advanced in the request.  In this case, the Department’s actions and public statements appeared to be backing away from the earlier interpretation.

In the new opinion, issued on January 5, 2021, the Department helpfully sought to clarify the situation.  First, the FARA Unit acknowledged that it had removed the earlier opinion from the advisory opinion website.  Next, the FARA Unit stated that, although it stood by the 2019 opinion, it believed that a fuller explanation was necessary.  The opinion then referenced newly revised guidance on the FARA Unit’s website, which was updated the same day that the 2019 opinion was withdrawn.  The revised guidance on the lawyers’ exemption now includes the following: “The scope of the exemption, once triggered, may include an attorney’s activities outside those proceedings so long as those activities do not go beyond the bounds of normal legal representation of a client within the scope of that matter.”  Notably, the guidance before this revision did not include a similar discussion of permissible exempt activities outside a legal proceeding.  The new opinion concluded that responding to media inquiries about litigation would typically fall within the scope of the lawyers’ exemption, but a “proactive media engagement . . . more akin to a public relations campaign” typically would not.

Lawyers have long struggled with the application of the lawyers’ exemption to FARA.  By its terms, it provides a blanket exemption for lawyers who are engaged in a legal representation of a disclosed client before a court or agency of the U.S. government, but it contains an important limitation: lawyers cannot seek to influence the U.S. government outside of the bounds of the applicable legal proceeding.  The new guidance and revised advisory opinion helpfully clarify that activities that a lawyer normally undertakes on behalf of clients are exempt, even outside of applicable proceedings.  Of course, the exact scope of “normal” activities is still amorphous, and lawyers should seek specific guidance from FARA practitioners when considering public relations activities and other activities ancillary to defined legal proceedings.