ABA supports rescinding enjoined 'persuader rule' requiring lawyer reporting on anti-union advice

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The ABA is supporting rescission of changes to the so-called “persuader rule” that would have required lawyers and consultants to report on advice given to employers about persuading employees on union issues.

Secretary of Labor Alexander Acosta has said that implementing the revised rule would make it harder for businesses to obtain legal advice, McKnight’s Senior Living reports. A federal judge permanently blocked the new rule from taking effect last November.

The ABA has expressed concern that implementing the changes would undermine the confidential lawyer-client relationship and impose unjustified burdens on lawyers, law firms and their clients.

Under the prior rule, there was no mandate to report when lawyers and consultants spoke with employers about opposition to union efforts, as long as they had no direct contact with employees. Under the proposed revision, lawyers and consultants would have to report to the government advice to employers that has the object of persuading employees concerning union rights.

The ABA told the U.S. Department of Labor it supports its proposal to rescind the rule changes in an Aug. 4 letter. The ABA also said it urges the Labor Department to narrow the scope of a form that is filled out when lawyers’ persuader activities don’t qualify for the reporting exemption.

The financial information disclosed on the form should concern only legal fees and disbursements directly relating to employer clients for whom persuader activities were performed, the ABA letter says.

U.S. District Judge Sam Cummings of Lubbock, Texas, who granted the permanent injunction, said the Labor Department likely exceeded its authority in implementing the rule. He also saw a likelihood of success on claims that the new rule violates free-speech and association rights, including the “long-recognized First Amendment right to hire and consult an attorney.”

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