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Matthew Sanderson Speaks on Newly Released FARA Opinion From DOJ

June 23, 2020, Law.com

In a newly released advisory opinion, the U.S. Justice Department has asserted an expansive view of the conduct that would require lawyers to register as so-called “foreign agents” in connection with their work for overseas governments and other interests.

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“DOJ is indicating here that law firms representing foreign governments will need to tightly manage their work in order to avoid registration, including placing restrictions on what many would consider core legal services,” said Matthew Sanderson, a partner at Caplin & Drysdale who has counseled law firms on FARA.

Sanderson said he was particularly struck by the portions of the opinion addressing the attendance of meetings with lobbyists and assisting with talking points tied to court litigation.

Before the opinion, Sanderson said he would have advised lawyers that they could attend strategy discussions about proposed legislation without triggering FARA. His advice, he said, would have been: “Don't participate in formulating the strategy, be quiet, but you can be there.”

Sanderson added that the DOJ had taken an expansive, and perhaps even “questionable,” approach in asserting that FARA requires lawyers to register if, in the course of representing a foreign client in court, they assist with responses to the media. That service, he said, is a “core role” for a lawyer in litigation.

“They have to tell the PR people or the client what is correct or not correct about the talking points they want to use. They can have a detrimental effect on the litigation if they’re incorrect,” Sanderson said.

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