DOJ Revises Guidance on FARA's Legal Exemption

Last week, DOJ's Foreign Agents Registration Act (FARA) Unit announced that it had—apparently for the first time—withdrawn one of its advisory opinions available on its website. To replace this December 2019 opinion, which concerned FARA's legal exemption, the Unit issued a new opinion "to more fully explain the basis for part of [its] conclusion" regarding the exemption's scope. The withdrawn opinion narrowly interpreted FARA's legal exemption, finding it inapplicable to attorneys who, on behalf of a foreign principal, planned to "provide factual responses to media inquiries about the litigation, issue press releases containing facts regarding the litigation, and engage in press conferences regarding [the case]." The opinion came under fire for ignoring that high-profile litigation routinely attracts media inquiries about the legal proceedings themselves, and for potentially imposing registration burdens on litigators who opt to say more than "No comment." Last week's revised guidance softens the FARA Unit's position and, in certain circumstances, allows attorneys to respond to litigation-related media inquiries without requiring them to register under the statute.

Many lawyers with foreign clients rely on FARA's legal exemption. That exemption is triggered "once a person, qualified to practice law, engages or agrees to engage in the legal representation of a disclosed foreign principal before any court or agency of the Government of the United States." However, not all activity by lawyers falls within the scope of the exemption. For example, attorneys must register if they agree to provide legal representation to further political activities or to influence agency personnel outside of a judicial proceeding, law enforcement inquiry, or formal agency proceeding, provided that those efforts relate to attempts to change US policy or relate to a foreign government or political party's political or public interests, policies, or relations.

The legal exemption's applicability to press contacts has not always been well-defined. DOJ's December 2019 advisory opinion so tightly circumscribed the exemption that it arguably required litigators to register under FARA for the most routine of case-related media interactions. Lawyers quickly took note of DOJ's narrow interpretation of the exemption when it came to activities occurring in support of litigation outside of the courtroom. But then, on December 3, 2020, DOJ removed the advisory opinion from its website without fanfare. The next day, Adam Hickey, DOJ's Deputy Assistant Attorney General for the National Security Division, gave a speech at the ACI National Forum on FARA. While not completely contradicting the December 2019 opinion, Mr. Hickey's remarks signaled a shift in the FARA Unit's interpretation of the legal exemption. He noted that "collateral activities" may qualify under the exemption if they are within "the bounds of normal legal representation." For example, "public relations work that has a tangential relationship to pending litigation would fall outside the exemption," while "calling a press conference to announce a lawsuit would not."

After the holidays, on January 5, 2021, the FARA Unit issued the revised opinion, in alignment with Mr. Hickey's remarks. At the same time, the FARA Unit updated its online FAQ, including its discussion of the legal exemption. While DOJ concluded in both the December 2019 and January 2021 opinions that the company's legal department that requested the advisory opinion was ineligible for the legal exemption and was required to register, these updated resources provide insight for potential registrants whose fact patterns may be a closer question.

The FAQ notes that, in certain circumstances, the litigation exemption may cover an attorney's activities outside of legal 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." The revised opinion further clarifies that "responding to media inquiries about litigation typically fall within the scope of the [legal] exemption," as long as those contacts are not part of a "proactive media engagement that [is] more akin to a public relations campaign" aimed at promoting the litigation and the client's political objectives. In short, for litigation-related media contacts, it appears that the dividing line between exempt and non-exempt activity will turn on whether the media contacts are within the scope of comments typically provided in "normal legal representation," as opposed to a broader media campaign.

For questions about FARA, the advisory opinion process, or broader registration issues, please reach out to the authors or any of their colleagues in Arnold & Porter's White Collar Defense & Investigations practice group. 

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.