Flexing a little muscle in Brussels
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Following Herbert Smith's appointment of former European Commission vice-president Sir Leon Brittan as a consultant, Sean Farrell investigates the work of lawyers in Brussels and how much of their role involves lobbying for their clients.
Last week Herbert Smith announced that former vice-president of the European Commission Sir Leon Brittan is joining the firm as a consultant in the new year.
"Consultant" can mean many things, and although Herbert Smith insists that Brittan will not be using his formidable contacts to act as a lobbyist for the firm, there is a growing trend among UK law firms to act as European Commission lobbyists.
To some, "lobbying" is a word ripe with euphemisms. Mike Pullen, European public policy and regulatory counsel for Dibb Lupton Alsop, prefers the expression "proactive lawyering". And Simon Polito, who co-founded Lovell White Durrant's Brussels office in 1972, says: "Lobbying is a slightly emotive word.
"You are participating in the development of new legislation and directives and making sure your client's view is taken into account."
Polito's colleague, Nick Bromfield, who heads Lovells' Brussels practice, is less wary with his definitions. "There is no need to be embarrassed about the term lobbying," he says. "Our job is not just to advise on existing legislation but to keep an eye on likely developments and join in consultation exercises and forming policy so that policy is workable, or better still it meets the requirements of the client and the industry. And that is lobbying."
Clive Stanbrook of boutique Brussels firm Stanbrook & Hooper, says, whether they like it or not, lobbying has become part of a Brussels lawyer's job. "We have been here 22 years. In the early days lawyers used to say 'We don't do lobbying,' but the practice of law is broader in Brussels.
"You do lobbying in support of your position on anti-dumping cases. There's lobbying in competition areas. You go along to the antitrust committee.
"[Ours is] a regulatory practice and that involves telling people about the regulatory framework and what to do if they want it to move in a particular direction.
"Most people are doing that. We used to be fairly unusual. We perceive ourselves as being a government regulatory practice in the Washington mode and I think everyone else has moved in the same direction."
Most foreign law firms in Brussels opened in the run-up to the single European market, which came into effect in January 1993.
The period before the single market created a boom for lawyers. "Between 1987 and 1993 there were 350-odd pieces of legislation and anyone could provide a service and make a living charting the progress of that," says Bromfield.
"After 1993 the rate of legislation slowed because the single market is complete. But what has replaced it is that there is much more policy forming. There is less legislation but it is more significant.
"You can't just advise on existing legislation and you can't just advise on legislation coming through because it has slowed down to a dribble. You look at the main areas of future legislation and become involved in the process of forming public opinion and informing the authorities about the issues."
Chris Bright, head of competition at Clifford Chance, says gaining influence in Brussels is a more subtle business than it is in Washington DC - the lobbying capital of the world - where lawyers are involved in what he calls lobbying "the old-fashioned way".
"An American client said to me: 'Is it like Washington where you get a big name to go in and fix it for you?'" says Bright.
Big earners Kevin Arquit and Steve Newborn, partners in Rogers & Wells' antitrust practice, are able to do just that. "A lot of its [Rogers & Wells] success has been because of their ability to reach inside government based on a history of contacts in government, and it's a real selling point," says Bright.
"Here, people with relationships are important but they are less about personal influence than being effective communicators because people know and trust you," he adds.
But Dibbs' Pullen is happy to bill his practice as "Washington-style lawyers in Brussels" and it has now been integrated with Dibbs' UK regulatory practice under the leadership of Liberal Democrat peer Lord Tim Clement-Jones.
Pullen has made great play of his success in influencing the commission on the implications of the draft e-commerce legislation, which imposes national restrictions on internet trading. This was, he says, down to knowing the right people.
Pullen says: "The UK government now thinks it is a serious problem and it is something we flagged up before anyone else got near it. Twenty other law firms didn't think it was a problem, because they didn't have the contacts at the commission that I have and access to the documents."
Pullen argues that lawyers can "add value" to the activities of the mainstream lobbyists who "tend to be shallow [and] may not have an understanding of the Treaty of Rome... traditional lobbyists missed the e-commerce stuff", he says.
Both Dibbs and Lovells have made the decision to use their public affairs activities as a selling point. By contrast, Stephen Kinsella, managing partner of Herbert Smith's Brussels office, says: "We don't try to sell ourselves as having a lobbying practice."
But he concedes that Brussels inevitably leads lawyers outside the boundaries of traditional legal work. "Given that what a lot of lawyers do in competition law is a form of advocacy and persuasion... the line between legal work and soft lobbying isn't clear.
"We usually deal with DG4 [the commission's competition regulator], but if you felt you were not getting your message across you might go and tell your story to others on the commission and try to persuade them.
"And it can be a short step to contacting member state governments or sometimes MEPs and getting them to ask a formal question or ring up and ask what is going on. You can find yourself moving away from purely legal submissions to a campaign. If it gets very ambitious you can bring in other consultants."
Stanbrook says that lobbying is a necessary part of the Brussels lawyers' job because important decisions are made to fit with the broad guidelines of the Treaty of Rome. "The question is, what do those mean in new law and the interpretation of existing law?
"A lot of decisions are taken at an administrative level and there is a lot of scope for arguing whether this means one thing or another," he says.
Polito adds: "The commission is often very keen to receive representation from individual companies because they may not have first-hand knowledge. Trade associations may adopt the lowest common denominator as they have to balance interests of their members."
Pullen says the commission is an unusually open bureaucracy contrary to the wailings of UK Eurosceptics.
"There are 5,000 people in the commission in total. There are more than that number in the [Department of Trade and Industry], and nearly half of those [at the commission] are translators."
"At the DTI, if you ask for a direct line number of an official they won't give it to you, but at the EU they are pleased to talk to you. Lobbying is part of the process here and they want to talk to people."
According to Stanbrook: "If you have got a fundamentally regulatory practice it is important to know the people to phone and be able to phone them.
"You have got to know the system and how it operates. Knowing everyone at the top is no good.
"Often the person who knows what is going on is fairly low down in the building."
Michael Hutchings, a former Lovells partner who now works as an EU law consultant, agrees. "If you are saying 'Who is responsible for this issue?' it's someone below head of department in the commission and that is the person who is going to do the drafting and see it through the commission," he says.
Pullen says this is all wholesome, above-board stuff. "There is nothing in this Machiavellian image of lawyers, and as lawyers we are bound by codes of ethics, so you can't take a commission official out and wine him and dine him because it goes against the Law Society code of ethics."
But he concedes that while you cannot try to persuade an official on a specific point on the strength of a dinner, there is nothing wrong with taking people out and finding out what makes them tick. "People are usually interested in telling you what they are doing.
"Because it is such a small town you will meet people who are married to people or who know each other.
"You go to the gym or come across commission officials in the pub."
Kinsella also stresses how Brussels' size encourages personal links between lawyers and officials. "It is a small place, and you do things that aren't purely legal work like taking people out to lunch or meeting them and trying to persuade them about what a client is doing."
His tip is to be plausible when striking up these relationships by concentrating on one's peer group. "If I rang up a 55-year-old official it would seem I was just lobbying them, but I could ring up someone I play football with or a more junior official or assistants to MEPs, or an MEP if I knew them well," he suggests.
Bright says that as the firm prepares for its German and US mergers Clifford Chance is integrating its competition practice and moving away from the idea of networking only in Brussels. "We are using Brussels as a focus and people are out making contacts.
"But we are also using competition lawyers in Paris to build better relations with Paris officials and the same in Frankfurt."
A newcomer to Brussels is top Birmingham firm Wragge & Co, which opened an office in June (The Lawyer, 14 June) with the express aim of joining the EU network.
But Guy Lougher, head of Wragges' EU competition team, says he is treading carefully. "Everybody knows everybody else, which is why it's a good idea not to crash round like a bull in a china shop. It's something we want to treat with care."
Kinsella says Herbert Smith takes a low-key approach for the opposite reason.
"We have been here for 10 years, and the people we first met when we came here are now rising up within the commission."
But he believes firms will increasingly market their lobbying abilities to clients. "I think we will see more of the law firms trying to play on the extent to which they do public affairs.
"It will be irresistible to dabble, because people think it's sexy."