American Lawyer Quotes Bryson Morgan on DOJ's Focus on FARA Enforcement
A small circle of attorneys well versed in the Foreign Agents Registration Act have been predicting that the once-obscure statute is not about to exit the limelight. News last week out of the Department of Justice suggests that they are on target.
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Attorney Bryson Morgan of the law firm Caplin & Drysdale, which has doubled down on the new focus on FARA with a website dedicated to compliance, acknowledged that there is an exemption under the law for legal representation.
“That oftentimes gets translated in lawyers’ minds and in law firms that you are completely exempt,” he said. “But under FARA, you’re only eligible if what you are doing is activity before a court of law. That’s a narrow set of activities.”
Not included in the list: efforts to influence U.S. public policy or promote a foreign government or foreign political party.
The key for law firms, Morgan suggested, is multiple levels of due diligence. First, figure out who the client actually is, particularly if it’s a foreign nonprofit or consultancy that likely has further backing. Follow that with an assessment at intake of the scope of the representation, and whether the activity falls within FARA.
Then, it’s critical to monitor the work actively, to make sure the nature of the representation hasn’t evolved. Morgan noted that while most of the work that Skadden’s attorneys were handling for Ukraine was exempt from FARA, there is no “de minimis” exemption.
“It could be one nonexempt phone call to a reporter or one nonexempt phone call to a government office that brings with it registration and transparency requirements,” he said.
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“In the past, some have responded quickly without a full due diligence review,” Morgan said. “Now you need to treat that letter more seriously, with a full internal investigation of the activity.”
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Excerpt taken from the article “DOJ Pivot Suggests No End to FARA Frenzy, Lawyers Say” by Dan Packel for The American Lawyer.